EXECUTION COPY
EXHIBIT 10.4
U.S. $1,000,000,000
SENIOR UNSECURED CREDIT FACILITY AGREEMENT
Dated as of November 3, 2003
Among
HALLIBURTON COMPANY
as Borrower,
THE BANKS NAMED HEREIN
as Banks,
CITICORP NORTH AMERICA, INC.
as Administrative Agent,
JPMORGAN CHASE BANK
as Syndication Agent,
and
ABN AMRO BANK, N.V.
as Documentation Agent
Co-Lead Arrangers:
CITIGROUP GLOBAL MARKETS INC.,
XXXXXXX XXXXX CREDIT PARTNERS L.P.
and
X.X. XXXXXX SECURITIES INC.
TABLE OF CONTENTS
Page
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Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms........................................ 1
Section 1.02 Computation of Time Periods.................................. 13
Section 1.03 Accounting Terms; GAAP....................................... 13
Section 1.04 Miscellaneous................................................ 13
Section 1.05 Ratings...................................................... 13
Article II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The Advances................................................. 13
Section 2.02 Making the Advances.......................................... 14
Section 2.03 Repayment of Advances........................................ 14
Section 2.04 Termination and Reduction of Commitments..................... 15
Section 2.05 Prepayments.................................................. 15
Section 2.06 Fees......................................................... 16
Section 2.07 Interest..................................................... 16
Section 2.08 Additional Interest on Eurodollar Rate Advances.............. 17
Section 2.09 Interest Rate Determination.................................. 17
Section 2.10 Payments and Computations.................................... 18
Section 2.11 Increased Costs and Capital Requirements..................... 19
Section 2.12 Taxes........................................................ 20
Section 2.13 Sharing of Payments, Etc..................................... 22
Section 2.14 Illegality................................................... 22
Section 2.15 Conversion of Advances....................................... 23
Section 2.16 Replacement or Removal of Bank............................... 23
Section 2.17 Evidence of Indebtedness..................................... 24
Article III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Effectiveness........................ 24
Section 3.02 Conditions Precedent to Each Advance......................... 28
Section 3.03 Determinations Under Section 3.01............................ 28
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower............... 29
Article V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants........................................ 31
Section 5.02 Negative Covenants........................................... 34
Section 5.03 Financial Covenants.......................................... 38
Article VI
EVENTS OF DEFAULT
Section 6.01 Events of Default............................................ 38
Article VII
THE AGENT
Section 7.01 Authorization and Action..................................... 40
Section 7.02 Agent's Reliance, Etc........................................ 41
Section 7.03 The Agent and its Affiliates................................. 41
Section 7.04 Bank Credit Decision......................................... 41
Section 7.05 Indemnification.............................................. 41
Section 7.06 Successor Agent.............................................. 42
Section 7.07 Co-Lead Arrangers, Syndication Agent, Documentation Agent.... 42
Article VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc.............................................. 42
Section 8.02 Notices, Etc................................................. 43
Section 8.03 No Waiver; Remedies.......................................... 44
Section 8.04 Expenses and Taxes; Compensation............................. 44
Section 8.05 Right of Set-Off............................................. 45
Section 8.06 Limitation and Adjustment of Interest........................ 46
Section 8.07 Binding Effect............................................... 46
Section 8.08 Assignments and Participations............................... 47
Section 8.09 Execution in Counterparts.................................... 48
Section 8.10 Jurisdiction; Damages........................................ 49
Section 8.11 Confidentiality.............................................. 49
Section 8.12 Governing Law................................................ 50
Section 8.13 Waiver of Jury Trial......................................... 51
ANNEX
Annex A
SCHEDULES
Schedule I - Commitments
Schedule II - Filing Entities
Schedule III - Bank Information
Schedule 4.01(g) - Asbestos and Silica Non-US Litigation
Schedule 4.01(h) - Domestic Subsidiaries
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C-1 - Form of Opinion of Xxxxx X. Xxxxxxxxx
Exhibit C-2 - Form of Opinion of Counsel to the Borrower
Exhibit D - Form of Assignment and Acceptance
SENIOR UNSECURED CREDIT FACILITY AGREEMENT
Dated as of November 3, 2003
Halliburton Company, a Delaware corporation (the "Borrower"), the
lenders party hereto and Citicorp North America, Inc. ("CNAI"), as
Administrative Agent hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
terms "Borrower" and "CNAI" shall have the meanings set forth above and the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" has the meaning specified in Section 2.01 and refers to a
Base Rate Advance or a Eurodollar Rate Advance (each, a "Type" of Advance).
"Affected Bank" has the meaning specified in Section 2.15.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or any Subsidiary of such Person.
"Agent" means CNAI in its capacity as Administrative Agent pursuant to
Article VII and any successor in such capacity pursuant to Section 7.06.
"Agent's Account" means the account of the Agent maintained by the
Agent with _______________ at its office at ____________________, New York, New
York _____, Account No. __________, Attention: _______________, or such other
account as the Agent shall specify in writing to the Banks.
"Agreement" means this Senior Unsecured Credit Facility Agreement dated
as of October 30, 2003 among the Borrower, the Banks and the Agent, as amended
from time to time in accordance with the terms hereof.
"Applicable Commitment Fee Rate" has the meaning specified in Annex A.
"Applicable Lending Office" means, with respect to each Bank, (i) in
the case of a Base Rate Advance, such Bank's Domestic Lending Office, and (ii)
in the case of a Eurodollar Rate Advance, such Bank's Eurodollar Lending Office.
"Applicable Margin" has the meaning specified in Annex A.
"Asset Sale" means any sale, lease or other disposition by the Borrower
or any of its Subsidiaries of any asset but excluding (i) dispositions of assets
in the ordinary course of business, (ii) dividends and distributions permitted
by Section 5.02(c), (iii) dispositions to the Borrower or a Subsidiary of the
Borrower, (iv) dispositions constituting investments and capital contributions,
(v) dispositions of any fixed or capital asset pursuant to a sale/leaseback
transaction which is consummated within 180 days of the Borrower or such
Subsidiary acquiring or completing the construction of such asset, and (vi)
dispositions of "Collateral" under and as defined in the Revolving Credit
Facility and the Master LC Facility which are required to be deposited in the
Shared Collateral Account or the L/C Cash Collateral Account. For the avoidance
of doubt, a Securitization Transaction does not constitute an Asset Sale.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit D.
"Availability Date" means the date, on or before the Termination Date,
of satisfaction in full of the Conditions Precedent to Effectiveness set forth
in Section 3.01.
"Bankruptcy Court" means the U.S. Bankruptcy Court for the Western
District of Pennsylvania.
"Banks" means the Banks party hereto from time to time as lenders,
including each Eligible Assignee that becomes a party hereto pursuant to Section
8.08(a), (b) and (d).
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/8 of 1% or, if
there is no nearest 1/8 of 1%, to the next higher 1/8 of 1%) of
(i) 1/2 of one percent per annum plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days)
being determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit dealers
of recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during
such three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including (among
other liabilities) three-month Dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for insuring Dollar
deposits of Citibank in the United States; and
(c) the sum of 1/2 of one percent per annum plus the
Federal Funds Rate in effect from time to time.
"Base Rate Advance" means an Advance which bears interest as provided
in Section 2.07(a).
"Borrowing" means a borrowing consisting of Advances of the same Type
made on the same day by the Banks pursuant to Section 2.01 and, if such Advances
are Eurodollar Rate Advances, having Interest Periods of the same duration.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings in Dollar deposits are
carried on in the London interbank market.
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"Chapter 11 Cases" means the cases to be filed by the Filing Entities
under Chapter 11 of the Bankruptcy Code.
"Citibank" means Citibank, N.A., a national banking association.
"Co-Lead Arrangers" means Citigroup Global Markets Inc., GSCP and X.X.
Xxxxxx Securities Inc.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code, and the regulations promulgated and rulings issued
thereunder, in each case as now or hereafter in effect, and any reference to any
statutory provision shall be deemed to be a reference to any successor provision
or provisions.
"Collateral Trust Agreement" means the Collateral Trust Agreement,
dated as of November __, 2003, between the Borrower and the Collateral Trustee.
"Collateral Trustee" means Citibank, N.A., in its capacity as
collateral trustee under the Collateral Trust Agreement.
"Commitment" means, with respect to any Bank at any time, the amount
set forth opposite such Bank's name on Schedule I hereto, as such amount may be
reduced at or prior to such time pursuant to Section 2.04.
"Commitment Fee" has the meaning specified in Section 2.06(a).
"Consolidated Debt" means at any time the Debt of the Borrower and its
consolidated subsidiaries calculated on a consolidated basis as of such time,
determined in accordance with GAAP.
"Consolidated Debt to Total Consolidated Capitalization Ratio" means,
as of any date of calculation, the ratio of the Borrower's Consolidated Debt
outstanding on such date to the sum of (i) Consolidated Debt and (ii)
Consolidated Net Worth outstanding on such date.
"Consolidated EBITDA" means, with reference to any period of time, the
EBITDA of the Borrower and its consolidated subsidiaries calculated on a
consolidated basis for such period, determined in accordance with GAAP.
"Consolidated Interest Expense" means, with reference to any period,
the Interest Expense of the Borrower and its consolidated subsidiaries
calculated on a consolidated basis for such period, determined in accordance
with GAAP.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its consolidated subsidiaries
calculated on a consolidated basis as of such time (excluding treasury stock),
determined in accordance with GAAP and excluding any aggregate charges for
asbestos litigation claims.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08,
2.14 or 2.15.
"Convertible Notes" means the 3 1/8% Convertible Senior Notes of the
Borrower due July 15, 2023, issued pursuant to the Convertible Notes Indenture.
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"Convertible Notes Indenture" means the Indenture dated as of June 30,
2003 between the Borrower, as issuer and JPMCB, as Trustee.
"Debt" of any Person means (i) Indebtedness of such Person, plus (ii)
obligations of such Person under direct third party guaranties for borrowed
money, plus (iii) the aggregate face amount of all outstanding letters of credit
in respect of which such Person has any reimbursement obligation (other than
Performance Letters of Credit), plus (iv) 50% of the aggregate face amount of
all outstanding Performance Letters of Credit issued of such Person, plus (v)
the Net Asbestos Liability, minus (vi) any Unrestricted Cash.
"Debt Incurrence" means the issuance to unaffiliated third parties by
the Borrower or any of its Subsidiaries of any Indebtedness in a public or
private transaction, excluding Indebtedness (i) incurred pursuant to the
Revolving Credit Facility or the Master LC Facility, (ii) incurred pursuant to a
Working Capital Facility, (iii) of the type described in Section 5.02(a)(iii) or
Section 5.02(b)(iii), (iv) constituting Permitted Non-Recourse Indebtedness, (v)
constituting capital leases or (vi) constituting a guaranty of Indebtedness of a
type described in clauses (i) through (v) of this definition.
"Default" means any event or condition which with notice or lapse of
time or both would, unless cured or waived, become an Event of Default.
"Disclosed Litigation" means the litigation described in the
information provided by or on behalf of the Borrower to the Agent for disclosure
to the Banks prior to the Availability Date of this Agreement.
"Disclosure Statement" means the disclosure statement, dated as of
September 18, 2003, with respect to the Plan of Reorganization proposed to be
filed in connection with the Chapter 11 Cases as may be supplemented or restated
prior to the date of filing of the Chapter 11 Cases.
"Documentation Agent" means ABN AMRO Bank, N.V., solely in its capacity
as documentation agent under the Agreement.
"Dollars" and "$" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto, in the Assignment and Acceptance pursuant to which it became
a Bank, or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
"EBITDA" means (a) Net Income plus (b) to the extent deducted in
determining Net Income, (i) Interest Expense, (ii) taxes, and (iii) depreciation
and amortization minus (c) to the extent added in determining Net Income,
extraordinary gains (including gains from assets sales) for such period, plus
(d) to the extent recognized in determining Net Income, extraordinary,
non-recurring losses (excluding asbestos charges) for such period. EBITDA shall
be calculated on a rolling four quarters basis using the financial results for
the four-quarter period ending on the date as of which the calculation is made.
"Eligible Assignee" means (i) any Bank, (ii) any Affiliate of any Bank
and (iii) with the consent of the Agent (which consent shall not be unreasonably
withheld) and, so long as no Event of Default under Section 6.01(a) or 6.01(e)
shall have occurred and be continuing, the Borrower (which consent shall not be
unreasonably withheld), any other Person not covered by clause (i) or (ii) of
this definition; provided, however, that neither the Borrower nor any Affiliate
of the Borrower shall be an Eligible Assignee.
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"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
"Equity Issuance" means any issuance in a capital markets transaction
(public or private) of Equity Interests of the Borrower or any Subsidiary of the
Borrower to unaffiliated third parties, excluding (i) Equity Interests issued
pursuant to plans, programs and practices described in Section 5.02(c)(v) and
(vii), (ii) Equity Interests issued as consideration for a business acquisition,
(iii) Equity Interests issued in connection with the Stock Agreement and (iv)
Equity Interests issued in a conversion of the Convertible Notes in accordance
with their terms.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414(a) or (b) of the Internal
Revenue Code, and, for purposes of Section 412 of the Internal Revenue Code,
Section 414(m) of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC
of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan; provided, however, that in no event shall the filing of the
Chapter 11 Cases be an ERISA Event.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto, in the Assignment and Acceptance pursuant to which it became
a Bank (or, if no such office is specified, its Domestic Lending
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Office), or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum, if such
rate per annum is not such a multiple) equal to the rate per annum at which
deposits in Dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to Citibank's Eurodollar Rate Advance comprising part
of such Borrowing and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest
Period for all Eurodollar Rate Advances comprising part of the same borrowing
means the reserve percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time by
the Federal Reserve Board for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Indebtedness" means Indebtedness of each Borrower and its
Subsidiaries outstanding immediately before the date of filing of the Chapter 11
Cases.
"Exit Date" means the date on which (i) the Plan of Reorganization
shall have been confirmed and (ii) the Order Entry shall have occurred.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal for such day to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected by
it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereof.
"Filing Entities" means the Borrower's Subsidiaries listed on Schedule
II hereto.
"Financial Statements" means the consolidated balance sheet and other
financial statements of the Borrower and its consolidated subsidiaries dated
December 31, 2002 included in the Borrower's Form 10-K filing with the SEC for
the fiscal year ended December 31, 2002, as amended prior to the date of filing
of the Chapter 11 Cases in order to reflect changes in the Borrower's segment
reporting.
"First Advance" has the meaning specified in Section 2.01.
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"First Drawdown Date" has the meaning specified in Section 2.01.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GSCP" means Xxxxxxx Xxxxx Credit Partners L.P.
"HESI" means Halliburton Energy Services, Inc., a Delaware corporation.
"Indebtedness" means, for any Person, (a) its liabilities for borrowed
money or the deferred purchase price of property or services (other than current
accounts and salaries payable or accrued in the ordinary course of business),
(b) obligations of such Person for borrowed money evidenced by bonds,
debentures, notes or other similar instruments and (c) all Indebtedness of
others the payment, purchase or other acquisition or obligation of which such
Person has assumed, or the payment, purchase or other acquisition or obligation
of which such Person has otherwise become directly or contingently liable for.
"Indemnified Costs" has the meaning specified in Section 7.05.
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Interest Charge Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated EBITDA for the four-fiscal quarter period
then ended (excluding, for each quarter through and including the quarter ending
December 31, 2003, any non-cash charges related to the proposed global asbestos
settlement contemplated in the Borrower's press release dated December 18, 2002)
to (b) Consolidated Interest Expense (calculated in accordance with GAAP) for
the four-fiscal quarter period then ended.
"Interest Expense" means for any period, interest expense, whether
expensed or capitalized, paid, accrued or scheduled to be paid or accrued during
such period, determined in accordance with GAAP, without duplication.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months (or, as to
any Interest Period, such other period as the Borrower and the Banks may agree
to for such Interest Period), in each case as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period (or, as to any
Interest Period, at such other time as the Borrower and the Banks may agree to
for such Interest Period), select; provided, however, that:
(i) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the same
duration;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day;
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(iii) any Interest Period which begins on the last Business
Day of the 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 the calendar
month in which it would have ended if there were a numerically
corresponding day in such calendar month; and
(iv) the Borrower may not select an Interest Period for
any Advance if the last day of such Interest Period would be later than
the date on which the Advances are then payable in full or if any Event
of Default under Section 6.01(a) shall have occurred and be continuing
at the time of selection.
"Joint Venture Debt" has the meaning specified in Section 5.02(a)(vii).
"JPMCB" means JPMorgan Chase Bank, a New York banking corporation.
"June 2003 10-Q" means the Borrower's Form 10-Q filing with the SEC for
the quarter ended on June 30, 2003.
"JV Subsidiary" means each Subsidiary of the Borrower (a) that, at any
time, directly holds an Equity Interest in any joint venture (not a Subsidiary)
and (b) that has no other material assets.
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor, a
statutory deemed trust and any easement, right of way or other encumbrance on
title to real property; provided, however, that for the avoidance of doubt, the
interest of a Person as owner or lessor under charters or leases of property and
the rights of setoff of banks shall not constitute a "Lien" on or in respect of
the relevant property.
"Loan Documents" means this Agreement and the Notes.
"Master LC Facility Agreement" means the senior secured master letter
of credit facility agreement, dated as of October 30, 2003, among the Borrower,
the Borrower's subsidiaries party thereto, the banks party thereto, CNAI, as
agent, and Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc., as
co-lead arrangers.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries, taken as a whole, (b) the
rights and remedies of any Agent or any Bank under any Loan Document or (c) the
ability of the Borrower to perform its Obligations under any Loan Document to
which it is or is to be a party; provided, however, the filing of the Chapter 11
Cases shall not be deemed to constitute a Material Adverse Effect.
"Maturity Date" means the date which is 364 days after the First
Drawdown Date.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to its
debt ratings business.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
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"Net Asbestos Liability" means (a) estimated asbestos litigation claims
minus (b) estimated insurance for asbestos litigation claims, in each case as
reflected in the financial statements most recently delivered pursuant to
Section 5.01(d)(i) and 5.01(d)(ii) (or, prior to such date, financial statements
as filed in the June 2003 10-Q), to the extent that such liability is greater
than zero.
"Net Cash Proceeds" means, with respect to any Reduction Event, an
amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Reduction Event (whether as initial
consideration or through payment or disposition of deferred consideration), less
(at the option of the Borrower) (without duplication):
(a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions;
(b) the amount of taxes payable in connection with or as
a result of such transaction, in each case to the extent, but only to
the extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of the
Borrower of the Affiliate or any Borrower and are properly attributable
to such transaction or to the asset that is the subject thereof;
(c) if such Reduction Event is an Asset Sale, (i) the
amount of all Indebtedness secured by an assets subject to that Asset
Sale and subject to mandatory prepayment as a result of that Asset
Sale, and (ii) up to $150,000,000 (less the aggregate amount deducted
from Net Cash Proceeds in reliance on this subclause (ii) in connection
with one or more prior Asset Sales consummated on or after the date
hereof) of such cash proceeds.
"Net Income" means, for any period, the Borrower's net income for such
period, as determined in accordance with GAAP.
"Note" means a promissory note of the Borrower payable to the order of
any Bank, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from the Advances
owing to such Bank.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Borrower under the Loan Documents include (a) the obligation
to pay principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts payable
by the Borrower under any Loan Document and (b) the obligation of the Borrower
to reimburse any amount in respect of any of the foregoing that any Bank, in its
sole discretion, may elect to pay or advance on behalf of the Borrower.
"Offering Document" has the meaning specified in Section 3.01(p).
"Order Entry" has the meaning specified in Section 3.01(m).
"Other Taxes" has the meaning specified in Section 2.13(b).
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"Performance Letter of Credit" means a letter of credit qualifying as a
"performance-based standby letter of credit" under 12 C.F.R. Part 3, Appendix A,
Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation.
"Permitted Non-Recourse Indebtedness" means Indebtedness and other
obligations of the Borrower or any Subsidiary incurred in connection with the
acquisition or construction by the Borrower or such Subsidiary of any property
with respect to which:
(a) the holders of such Indebtedness and other
obligations agree that they will look solely to the property so
acquired or constructed and securing such Indebtedness and other
obligations, and neither the Borrower nor any Subsidiary (i) provides
any direct or indirect credit support, including any undertaking,
agreement or instrument that would constitute Indebtedness or (ii) is
directly or indirectly liable for such Indebtedness; and
(b) no default with respect to such Indebtedness or
obligations would cause, or permit (after notice or passage of time or
otherwise), according to the terms thereof, any holder (or any
representative of any such holder) of any other Indebtedness of the
Borrower or such Subsidiary to declare a default on such Indebtedness
or cause the payment, repurchase, redemption, defeasance or other
acquisition or retirement for value thereof to be accelerated or
payable prior to any scheduled principal payment, scheduled sinking
fund or maturity.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof or any trustee, receiver, custodian or similar official.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Plan of Reorganization" means the plan of reorganization in the form
attached as Exhibit B to the Disclosure Statement.
"Pro Rata Share" of any amount means, with respect to any Bank at any
time, such amount times a fraction (a) the numerator of which is the sum of (x)
the amount of such Bank's Commitment at such time plus (y) the aggregate
principal amount of Advances made by such Bank and outstanding at such time and
(b) the denominator of which is the sum of (x) the aggregate Commitments at such
time plus (y) the aggregate principal amount of Advances outstanding at such
time.
"Project Financing" means Indebtedness and other obligations that (a)
are incurred by a Project Finance Subsidiary, (b) are secured by a Lien of the
type permitted under clause (iii) of Section 5.02(a) and (c) constitute
Permitted Non-Recourse Indebtedness (other than recourse to the assets of, and
Equity Interests in, any Project Finance Subsidiary).
"Project Finance Subsidiary" means a Subsidiary that is a special-
purpose entity created solely to (i) construct or acquire any asset or project
that will be or is financed solely with Project Financing for such asset or
project and related equity investments in, loans to, or capital contributions
in, such Subsidiary that are not prohibited hereby and/or (ii) own an interest
in any such asset or project.
"Projections" has the meaning assigned thereto in Section 4.01(l).
"Property" or "asset" (in each case, whether or not capitalized) means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.
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"Receivables Subsidiary" means (i) Oilfield Services Receivables
Corporation, a Delaware corporation, and any other transferor under the
transaction referred to in Section 5.02(a)(i), including any replacement
transaction and (ii) any other special purpose entity created in connection with
a Securitization Transaction.
"Reduction Event" mean (i) any Asset Sale (other than an Asset Sale,
the Net Cash Proceeds of which, when aggregated with the Net Cash Proceeds of
any related Asset Sale, do not exceed $5,000,000), (ii) any Debt Incurrence, or
(iii) any Equity Issuance.
"Register" has the meaning specified in Section 8.08(c).
"Regulation U" means Regulation U of the Federal Reserve Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Required Banks" means at any time Banks owed or holding at least 66
2/3% of the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and (ii) the aggregate Commitments at such time.
"Responsible Officer" means each of the chairman and chief executive
officer, the president, the chief financial officer, the treasurer, the
secretary or any vice president (whether or not further described by other
terms, such as, for example, senior vice president or vice president-operations)
of the Borrower or, if any such office is vacant, any Person performing any of
the functions of such office.
"Revolving Credit Agreement" means the 3-Year Revolving Credit
Agreement dated as of October 30, 2003 among the Borrower, the banks party
thereto and CNAI, as Administrative Agent.
"S&P" means Standard & Poor's Ratings Service Group, a division of The
XxXxxx-Xxxx Companies, Inc. on the date hereof, or any successor to its debt
ratings business.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Second Advance" has the meaning specified in Section 2.01.
"Second Drawdown Date" has the meaning specified in Section 2.01.
"Secured Holders" has the meaning specified under the Collateral Trust
Agreement.
"Securitization Transaction" means any transfer by the Borrower or any
Subsidiary of accounts receivable or interests therein (including, without
limitation, all collateral securing such accounts receivable, all contracts and
guarantees or other obligations in respect of such accounts receivable, the
proceeds of such receivables and other assets which are customarily transferred,
or in respect of which security interests are customarily granted, in connection
with asset securitizations involving accounts receivables), or grant of a
security interest therein, (a) to a trust, in part, directly or indirectly, by
the incurrence or issuance by the transferee or any successor transferee of
Indebtedness or securities that are to receive payments from, or that represent
interests in, the cash flow derived from such accounts receivable or interests,
or (b) directly to one or more investors or other purchasers.
"Settlement Payments" means payments by the Borrower of approximately
$2.775 billion to asbestos and silica claimants as described in the Disclosure
Statement.
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"Shared Collateral Account" means the account of the Borrower with
Citibank, N.A. at its office at __________ in the name of the Collateral Trustee
and under its sole dominion and control, and subject to the terms of the Pledge
Agreement, dated as of November __, 2003, made by the Borrower and Halliburton
Energy Services, Inc. in favor of the Collateral Trustee, and the Collateral
Trust Agreement.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation (including a business
trust), partnership, joint stock company, trust, unincorporated association,
joint venture or other entity of which more than 50% of the outstanding capital
stock, securities or other ownership interests having ordinary voting power to
elect directors of such corporation or, in the case of any other entity, others
performing similar functions (irrespective of whether or not at the time capital
stock, securities or other ownership interests of any other class or classes of
such corporation or such other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person or
by one or more other Subsidiaries of such Person.
"Subsidiary Guarantor" means a Subsidiary of the Borrower that has
executed a guaranty of the Borrower's Obligations hereunder in form and
substance satisfactory to the Agent.
"Syndication Agent" means JPMCB, solely in its capacity as syndication
agent under the Agreement.
"Take-Out Bankers" means one or more investment bankers reasonably
satisfactory to CNAI, GSCP and JPMCB.
"Take-Out Securities" means debt or equity-linked securities of the
Borrower intended to finance the Settlement Payments or refinance the Advances
under this Agreement.
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means June 30, 2004, or the earlier date of
termination in whole of the Commitments pursuant to Section 2.04 or Section
6.01.
"Transaction" means the consummation of the Plan of Reorganization, the
creation of the Trusts, the Settlement Payments and related transactions.
"Trusts" means the trusts to be organized pursuant to Section 524(g)
and 105(a) of the Bankruptcy Code as provided in the Plan of Reorganization.
"Type" has the meaning specified in the definition of Advance.
"Unrestricted Cash" means cash not subject to a security interest
granted by a Person to a third party (other than the Collateral Trustee for the
benefit of the Secured Holders). For the avoidance of doubt, contractual and
statutory offset rights are not considered to be security interests for the
purposes of this definition.
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"Working Capital Facility" means a committed or uncommitted revolving
credit agreement facility entered into by the Borrower or a Subsidiary of the
Borrower to obtain working capital financing in the ordinary course of business.
Section 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.03 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Agent that the Borrower requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Agent notifies the Borrower that the Required Banks request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
Section 1.04 Miscellaneous. 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 Article, Section, Schedule and Exhibit references are to Articles
and Sections of and Schedules and Exhibits to this Agreement, unless otherwise
specified.
Section 1.05 Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or
(in the absence of such announcement or publication) the effective date of, any
change in such rating. In the event the standards for any rating by Moody's or
S&P are revised, or such rating is designated differently (such as by changing
letter designations to numerical designations), then the references herein to
such rating shall be deemed to refer to the revised or redesignated rating for
which the standards are closest to, but not lower than, the standards at the
date hereof for the rating which has been revised or redesignated, all as
determined by the Required Banks in good faith. Long-term debt supported by a
letter of credit, guaranty or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Moody's or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of any Person, the lowest such rating shall be applicable for purposes
hereof. For example, if Moody's rates some senior unsecured long-term debt of
the Borrower Baa1 and other such debt of the Borrower Baa2, the senior unsecured
long-term debt of the Borrower shall be deemed to be rated Baa2 by Moody's.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The Advances. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make (i) a single advance (the "First
Advance") to the Borrower on a date (the "First Drawdown Date") designated in
writing by the Borrower, which shall be a date on or after the Availability Date
but prior to the Termination Date, in an amount not to (x) exceed such Bank's
Commitment or (y) be less than 50% of such Bank's Commitment, in each case as of
the First Drawdown Date and (ii) a second advance (the "Second Advance" and,
together with the First Advance, the "Advances" and each, an "Advance") to the
Borrower on a date (the "Second Drawdown Date")
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designated in writing by the Borrower, which shall be a date not later than 90
days after the First Drawdown Date and in no event later than the Termination
Date, in an amount not to exceed such Bank's Commitment as of the Second
Drawdown Date. Amounts borrowed under this Section 2.01 and repaid or prepaid
may not be reborrowed.
Section 2.02 Making the Advances. (a) Each Borrowing shall be made on
notice in the form of Exhibit B (a "Notice of Borrowing"), given not later than
11:00 A.M. (New York City time) (i) on the date of a proposed Borrowing
comprised of Base Rate Advances and (ii) on the third Business Day prior to the
date of a proposed Borrowing comprised of Eurodollar Rate Advances, by the
Borrower to the Agent, which shall give to each Bank prompt notice thereof by
facsimile. Each Notice of Borrowing shall be by facsimile, confirmed immediately
in writing, in substantially the form of Exhibit B, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) if such Borrowing
is to be comprised of Eurodollar Rate Advances, the initial Interest Period for
each such Advance. Each Bank shall, before 2:00 p.m. (New York City time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Agent at its address referred to in Section 8.02, in same day
funds, such Bank's ratable portion of such Borrowing. After the Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Agent will make such funds available to the Borrower at the
Agent's aforesaid address.
(b) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Bank against any loss, cost or expense incurred by such
Bank as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Advance to be made by such Bank as part of such Borrowing when such Advance, as
a result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Agent such Bank's ratable portion of such Borrowing, the Agent may assume
that such Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made such ratable portion available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Advance as part of
such Borrowing for all purposes.
(d) The failure of any Bank to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Bank shall be responsible for the failure of any other Bank to make the
Advance to be made by such other Bank on the date of any Borrowing.
Section 2.03 Repayment of Advances. The Borrower shall repay to the
Agent for the ratable account of the Banks the aggregate outstanding principal
amount of the Advances (which amount shall be reduced as a result of the
application of prepayments in accordance with Section 2.05) as follows: (a) 50%
of the aggregate outstanding principal amount of the Advances on the date which
is 120 days after the
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First Drawdown Date and (b) the remaining aggregate outstanding principal amount
of the Advances on the Maturity Date.
Section 2.04 Termination and Reduction of Commitments. (a) Optional.
The Borrower shall have the right, upon at least five Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the Commitments;
provided that each partial reduction shall be in the minimum aggregate amount of
$10,000,000 and in an integral multiple of $1,000,000. Any termination or
reduction of any of the Commitments shall be permanent.
(b) Mandatory. (i) On the First Drawdown Date, after
giving effect to the First Advance, the Commitment of each Bank shall be
automatically and permanently reduced by an amount equal to the portion of the
First Advance advanced by such Bank.
(ii) On the Second Drawdown Date, after giving effect to
the Second Advance, the aggregate Commitments of the Banks shall
automatically and permanently terminate.
(iii) Prior to the First Drawdown Date, the Commitments of
the Banks shall be automatically and permanently reduced on each date
of receipt by the Borrower or any of its Subsidiaries of Net Cash
Proceeds of a type referred to in Section 2.05(b), by an amount equal
to the amount of such Net Cash Proceeds so received.
(iv) The Commitments shall automatically and permanently
terminate on the Termination Date.
Section 2.05 Prepayments. (a) Optional. The Borrower may upon at least
five Business Days' notice to the Agent, stating the proposed date (which shall
be a Business Day) and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount not less than $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the case of any such prepayment of a
Eurodollar Rate Advance on a day other than the last day of the Interest Period
applicable to such Advance, the Borrower shall be obligated to reimburse the
Banks in respect thereof pursuant to Section 8.04(b).
(b) Mandatory. Within five Business Days after the date
of receipt by the Borrower or any of its Subsidiaries (other than a Project
Finance Subsidiary) (or, in the case of a non-wholly-owned Subsidiary, the pro
rata share attributable to the Borrower's (direct or indirect) percentage
interest in such Subsidiary) of any of the following amounts, the Borrower shall
prepay the outstanding principal amounts of the Advances comprising part of the
same Borrowing by an amount equal to the amount so received:
(i) Net Cash Proceeds from a Reduction Event;
(ii) Net Cash Proceeds remaining in the Shared
Collateral Account or released to the Borrower or one of its
Subsidiaries therefrom after prepayment of "Advances" under
and as defined in the Master LC Facility pursuant to the terms
of the Master LC Facility; and
(iii) Net Cash Proceeds of insurance received by
the Borrower or any of its Subsidiaries in respect of asbestos
or silica claims.
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If this subsection (b) would otherwise require prepayment of Eurodollar Rate
Advances or portions thereof prior to the last day of the then current Interest
Period therefore, each such prepayment may, if the Borrower so elects and unless
the Agent otherwise notifies the Borrower upon the instructions of the Required
Banks, be deferred to such last day of the related Interest Period. The Borrower
shall, on the date such prepayment would have been required but for the
provisions of the preceding sentence, deposit the amounts that would have been
required as a prepayment to an account under the sole dominion and control of
the Agent, and the Agent shall distribute such funds in accordance with Section
2.11 on the last day of such Interest Period.
Section 2.06 Fees. (a) Commitment Fees. The Borrower agrees to pay to
the Agent for the account of each Bank a commitment fee to but excluding the
earlier of (x) the Second Drawdown Date and (y) the Termination Date on the
amount of such Bank's Commitment, payable quarterly in arrears on the last day
of each March, June, September and December hereafter, commencing December 31,
2003, and on the Termination Date, at a rate per annum equal to the Applicable
Commitment Fee Rate (the "Commitment Fee").
(b) Other Fees. The Borrower agrees to pay to the Agent,
the Co-Lead Arrangers, and the Banks such other fees as may be separately agreed
to in writing.
Section 2.07 Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect
from time to time plus the Applicable Margin in effect from time to
time, payable quarterly in arrears on the last day of each March, June,
September and December and on the date such Base Rate Advance shall be
Converted or paid in full; provided, that any amount of principal of a
Base Rate Advance which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the sum of
the rate otherwise payable thereon plus 2%.
(b) During such periods as such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest
Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time,
payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Revolving Credit
Advance shall be Converted or paid in full; provided, that any amount
of principal of a Eurodollar Rate Advance which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, payable on demand, (i) from the date on which such amount is
due until the end of the Interest Period for such Revolving Credit
Advance, at a rate per annum equal at all times to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time plus 2%, and (ii) from the end of such
Interest Period until such amount is paid in full, at a rate per annum
equal at all times to the sum of the rate of interest in effect from
time to time for Base Rate Advances plus 2%.
(c) Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Borrower shall pay simple
interest, to the fullest extent permitted by law, on the amount of any
interest, fee or other amount (other than principal of Advances which
is covered by Sections 2.07(a) and 2.07(b)) payable hereunder that is
not paid when due, from the
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date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to the sum of the rate
of interest in effect from time to time for Base Rate Advances plus 2%
per annum.
Section 2.08 Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Advance of such Bank
during such periods as such Advance is a Eurodollar Rate Advance, from the date
of such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period then in effect for such Eurodollar Rate
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Bank for such Interest Period, payable on each date on which interest is payable
on such Eurodollar Rate Advance. Such additional interest shall be determined by
such Bank and notified to the Borrower through the Agent.
Section 2.09 Interest Rate Determination. (a) The Agent shall give
prompt notice to the Borrower and the Banks of the applicable interest rate
determined by the Agent for purposes of Section 2.07(b).
(b) If the Agent is unable to determine the Eurodollar
Rate for any Eurodollar Rate Advances:
(i) the Agent shall forthwith notify the Borrower and the
Banks that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) each such Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance is then a Base Rate
Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Banks to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Banks that
the circumstances causing such suspension no longer exist.
(c) If, with respect to any Eurodollar Rate Advances, the
Required Banks notify the Agent (A) that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Banks of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period or (B) that Dollar deposits for the relevant
amounts and Interest Period for their respective Advances are not available to
them in the London interbank market, the Agent shall forthwith so notify the
Borrower and the Banks, whereupon
(i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance, and
(ii) the obligation of the Banks to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Banks that the circumstances
causing such suspension no longer exist.
(d) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Banks and such
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Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances (or if such Advances are then
Base Rate Advances, will continue as Base Rate Advances).
(e) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances, and on and after such date
the right of the Borrower to Convert such Advances into Eurodollar Rate Advances
shall terminate.
(f) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Banks to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
Section 2.10 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in Dollars to the Agent (except that payments
under Section 2.08 shall be paid directly to the Bank entitled thereto) at Xxx
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, in same day funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal, interest or Commitment Fees ratably (except amounts
payable pursuant to Section 2.11 or Section 2.12 and except that any Bank may
receive less than its ratable share of interest to the extent Section 8.06 is
applicable to it) to the Banks for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Bank to such Bank for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.08(c),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Bank assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
At the time of each payment of any principal of or interest on any Borrowing to
the Agent, the Borrower shall notify the Agent of the Borrowing to which such
payment shall apply. In the absence of such notice the Agent may specify the
Borrowing to which such payment shall apply.
(b) All computations of interest based on the Base Rate
(except during such times as the Base Rate is determined pursuant to clause (c)
of the definition thereof) and of Commitment Fees shall be made by the Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate, the Federal Funds Rate or, during such
times as the Base Rate is determined pursuant to clause (c) of the definition
thereof, the Base Rate shall be made by the Agent, and all computations of
interest pursuant to Section 2.08 shall be made by a Bank, on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Agent (or in the case of
Section 2.08, by a Bank) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest and Commitment
Fees, as the case may be; provided, however, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
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(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent that the Borrower shall not have so made such payment in full to
the Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate.
Section 2.11 Increased Costs and Capital Requirements. (a) If, due to
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation by any
governmental authority charged with the interpretation or administration thereof
or (ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Bank of agreeing to make or making,
funding or maintaining any Eurodollar Rate Advance (excluding, for purposes of
this Section 2.11, any such increased costs resulting from (x) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (y) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Bank is
organized or has its Applicable Lending Office or any political subdivision
thereof),, then the Borrower shall from time to time, within 15 days after
demand by such Bank (with a copy of such demand to the Agent), pay to the Agent
for the account of such Bank additional amounts sufficient to compensate such
Bank for such increased cost; provided, however, that the Borrower shall not be
required to pay to such Bank any portion of such additional amounts that are
incurred more than 90 days prior to any such demand, unless such additional
amounts had not been imposed or were not determinable on the date that is 90
days prior to such demand. A certificate setting forth in reasonable detail the
amount of such increased cost, submitted to the Borrower and the Agent by such
Bank, shall be conclusive and binding for all purposes, absent manifest error.
(b) If following the introduction of or any change in any
applicable law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of law) any
Bank determines that compliance by such Bank with any such law or regulation or
guideline or request regarding capital adequacy affects or would affect the
amount of capital required or expected to be maintained by such Bank or any
Person controlling such Bank and that the amount of such capital is increased by
or based upon the existence of such Bank's commitment to lend hereunder and
other commitments of this type, then, within 15 days after demand by such Bank
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank or such Person in the
light of such circumstances, to the extent that such Bank reasonably determines
such increase in capital to be allocable to the existence of such Bank's
commitment to lend hereunder; provided, however, that the Borrower shall not be
required to pay to such Bank any portion of such additional amounts that are
incurred more than 90 days prior to any such demand, unless such additional
amounts had not been imposed or were not determinable on the date that is 90
days prior to such demand. A certificate setting forth in reasonable detail such
amounts submitted to the Borrower and the Agent by such Bank shall be conclusive
and binding for all purposes, absent manifest error.
(c) Each Bank shall make reasonable efforts (consistent
with its internal policies and legal and regulatory restrictions) to select a
jurisdiction for its Applicable Lending Office or change the jurisdiction of its
Applicable Lending Office, as the case may be, so as to avoid the imposition of
any increased costs under this Section 2.11 or to eliminate the amount of any
such increased cost which may
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thereafter accrue; provided that no such selection or change of the jurisdiction
for its Applicable Lending Office shall be made if, in the reasonable judgment
of such Bank, such selection or change would be disadvantageous to such Bank.
Section 2.12 Taxes. (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 2.10, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges and withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
overall net income (including branch profits), and franchise taxes imposed on or
measured by net income, by the jurisdiction under the laws of which such Bank or
the Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its overall net income
(including branch profits), and franchise taxes imposed on or measured by net
income, by the jurisdiction of such Bank's Applicable Lending Office or
principal executive office or any political subdivision thereof, and all
liabilities with respect thereto (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"), except as may otherwise be required by law. If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Bank or the Agent, (i) the sum payable shall
be increased by such amount (an "Additional Amount") as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Bank or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Any such payment
by the Borrower shall be made in the name of the relevant Bank or the Agent (as
the case may be).
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, performing under,
or otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.12) imposed on or paid by such Bank or the Agent (as the case may be)
and any liability (including penalties, interest and reasonable expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payments under any indemnification
provided for in this Section 2.12(c) shall be made within 30 days from the date
such Bank or the Agent (as the case may be) makes written demand therefor
describing such Taxes or Other Taxes in reasonable detail.
(d) If the Agent or a Bank reasonable determines that it
has finally and irrevocably received a refund in respect of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower, or with respect to
which the Borrower has paid Additional Amounts, pursuant to this Section 2.12,
it shall within 30 days from the date of such receipt pay over such refund to
the Borrower (but only to the extent such refund is attributable, as reasonably
determined by such Agent or Bank, to such indemnity payments made, or Additional
Amounts paid, by the Borrower under this Section 2.12 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Agent or Bank and without interest (other than interest paid by
the relevant taxation authority with respect to such refund); provided, however,
that the Borrower, upon the request of the Agent or Bank, agrees to repay the
amount paid over to the Borrower (plus penalties, interest or other charges, if
any, imposed by the relevant taxation authority in respect of such repayment) to
the Agent or
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Bank in the event the Agent or Bank is required to repay such refund to the
applicable taxation authority. Nothing contained in this Section 2.12(d) shall
interfere with the right of the Agent or any Bank to arrange its tax affairs in
whatever manner it determines appropriate nor oblige the Agent or any Bank to
claim any tax credit or to disclose any information relating to its tax affairs
or any computations in respect thereof or require the Agent or any Bank to do
anything that would prejudice its ability to benefit from any other tax relief
to which it may be entitled.
(e) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof (or other evidence of payment reasonably satisfactory to the Agent). In
the case of any payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel reasonably acceptable to the Agent stating that
such payment is exempt from Taxes imposed by the jurisdiction from which such
payment is made. For purposes of this Section 2.12(e) and Section 2.12(f), the
terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Code.
(f) Each Bank organized under the laws of a jurisdiction
outside the United States, (i) on or prior to the date of the Initial Extension
of Credit in the case of each such Bank listed on the signature pages hereof,
(ii) on the date of the Assignment and Acceptance pursuant to which it becomes a
Bank, (iii) on or before the date, if any, it changes its Applicable Lending
Office, and (iv) from time to time thereafter if reasonably requested in writing
by the Borrower or the Agent or promptly upon the obsolescence or invalidity of
any form previously delivered by such Bank (but only so long as such Bank
remains lawfully able to do so), shall provide the Agent and the Borrower with
two original Internal Revenue Service Forms W-8BEN or W-8ECI (or, in the case of
a Bank that is entitled to claim exemption from withholding of United States
federal income tax under Section 871(h) or 881(c) of the Code, (A) a certificate
representing that such Bank is not a "bank" for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code) and (B) Internal Revenue Service Form W-8BEN), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, properly
completed and duly executed by such Bank, certifying that such Bank is exempt
from or entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the Notes (or, in the case of a Bank providing the
certificate described in clause (A), certifying that such Bank is a foreign
corporation, partnership, estate or trust). If the forms provided by a Bank at
the time such Bank first becomes a party to this Agreement indicate or require a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes for purposes of this
Section 2.12 unless and until such Bank provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Bank becomes a party to this Agreement (or the
date, if any, a Bank changes its Applicable Lending Office), the Bank assignor
(or such Bank) was entitled to payments under subsection (a) of this Section
2.12 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes, subject to the provisions of this subsection (f)) United
States withholding tax, if any, applicable with respect to the Bank assignee (or
such Bank) on such date.
(g) For any period with respect to which a Bank has
failed to provide the Borrower with the appropriate form described in subsection
(f) above (other than if such failure is due to a change
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in law, or in the interpretation or application thereof by any governmental
authority charged with the interpretation or application thereof, occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required under subsection (f) above), such Bank shall not
be entitled to indemnification or payment of an Additional Amount under
subsection (a) or (c) of this Section 2.12 with respect to Taxes imposed by the
United States to the extent such United States Taxes exceed the United States
Taxes that would have been imposed had such form been provided; provided,
however, that should a Bank become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(h) Any Bank claiming any indemnity payment or Additional
Amounts payable pursuant to this Section 2.12 shall use commercially reasonable
efforts (consistent with its generally applicable internal policy and legal and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Borrower or to designate a different Applicable
Lending Office following the reasonable request in writing of the Borrower if
the making of such a filing or change would avoid the need for or reduce the
amount of any such indemnity payment or Additional Amounts that may thereafter
accrue and would not, in the sole determination of such Bank, require the
disclosure of information that the Bank reasonably considers confidential, or be
otherwise disadvantageous to such Bank.
Section 2.13 Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the principal of or interest on the
Advances owing to it (except amounts payable pursuant to Sections 2.08, 2.11 or
2.12, and except that any Bank may receive less than its ratable share of
interest to the extent Section 8.06 is applicable to it) in excess of its
ratable share of payments on account of the principal of or interest on the
Advances obtained by all the Banks, such Bank shall forthwith purchase from the
other Banks such participations in the Advances owing to them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them, provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such Bank's ratable share (according to the
proportion of (i) the amount of the participation purchased from such Bank as a
result of such excess payment to (ii) the total amount of such excess payment)
of such recovery together with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such Bank's required repayment
to (ii) the total amount so recovered from the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such
participation.
Section 2.14 Illegality. Notwithstanding any other provision of this
Agreement, if any Bank ("Affected Bank") shall notify the Borrower and the Agent
that the introduction of or any change in any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Bank, or its Eurodollar Lending Office, to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) the obligation of the Affected Bank to
make, or to Convert Advances into, Eurodollar Rate Advances shall forthwith be
suspended (and any request by the Borrower for a Borrowing comprised of
Eurodollar Rate Advances shall, as to each Affected Bank, be deemed a request
for a Base Rate Advance to be made on the same day as the Eurodollar Rate
Advances of the Banks that are not Affected Banks and such Base Rate Advance
shall be considered as part of such Borrowing) until the Affected Bank shall
notify the Borrower, the Banks and the Agent that the circumstances causing such
suspension no longer exist and
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(ii) forthwith after such notice from an Affected Bank to the Agent and the
Borrower, all Eurodollar Rate Advances of such Affected Bank shall be deemed to
be Converted to Base Rate Advances (but will otherwise continue to be considered
as a part of the respective Borrowings that they were a part of prior to such
Conversion); provided, however, that, before making any such demand, such Bank
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Bank or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Bank, be otherwise materially disadvantageous to
such Bank. In the event any Bank shall notify the Agent of the occurrence of any
circumstance contemplated under this Section 2.14, all payments and prepayments
of principal that would otherwise have been applied to repay the Eurodollar Rate
Advances that would have been made by such Bank or the Converted Eurodollar Rate
Advances shall instead be applied to repay the Base Rate Advances made by such
Bank in lieu of such Eurodollar Rate Advances or resulting from the Conversion
of such Eurodollar Rate Advances and shall be made at the time that payments on
the Eurodollar Rate Advances of the Banks that are not Affected Banks are made.
Each Bank that has delivered a notice of illegality pursuant to this Section
2.14 above agrees that it will notify the Borrower as soon as practicable if the
conditions giving rise to the illegality cease to exist.
Section 2.15 Conversion of Advances. The Borrower may on any Business
Day, upon notice given to the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.02(b), 2.09 and 2.14, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that (i) any Conversion of any Eurodollar Rate Advances
into Base Rate Advances shall be made on, and only on, the last day of an
Interest Period for such Eurodollar Rate Advances, except as provided in Section
2.15, and (ii) Advances comprising a Borrowing may not be Converted into
Eurodollar Rate Advances if the outstanding principal amount of such Borrowing
is less than $10,000,000 or if any Event of Default under Section 6.01(a) shall
have occurred and be continuing on the date the related notice of Conversion
would otherwise be given pursuant to this Section 2.15. Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower. If any Event of Default under Section
6.01(a) shall have occurred and be continuing on the third Business Day prior to
the last day of any Interest Period for any Eurodollar Rate Advances, the
Borrower agrees to Convert all such Advances into Base Rate Advances on the last
day of such Interest Period.
Section 2.16 Replacement or Removal of Bank. In the event that any Bank
shall claim payment of any increased costs pursuant to Section 2.11 or any
additional amounts pursuant to Section 2.12, or exercises its rights under
Section 2.14, the Borrower shall have the right, if no Default or Event of
Default then exists, to (a) replace such Bank with an Eligible Assignee in
accordance with Section 8.08(a), (b) and (d) (including execution of an
appropriate Assignment and Acceptance); provided that such Eligible Assignee (i)
shall unconditionally offer in writing (with a copy to the Agent) to purchase on
a date therein specified all of such Bank's rights hereunder and interest in the
Advances owing to such Bank and the Note held by such Bank without recourse at
the principal amount of such Note plus interest, Commitment Fees and Letter of
Credit Fees accrued thereon to the date of such purchase, and (ii) shall execute
and deliver to the Agent an Assignment and Acceptance, as assignee, pursuant to
which such Eligible Assignee becomes a party hereto with a Commitment equal to
that of the Bank being replaced (plus, if such Eligible Assignee is already a
Bank, the amount of its Commitment prior to such replacement), provided,
further, that no Bank or other Person shall have any obligation to increase its
Commitment or otherwise to replace, in whole or in part, any Bank or (b) remove
such Bank without replacing it; provided that the Borrower may not remove a Bank
pursuant to this clause (b) if the aggregate
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Commitments of all Banks so removed would exceed $100,000,000. Upon satisfaction
of the requirements set forth in the first sentence of this Section 2.16,
acceptance of such offer to purchase by the Bank to be replaced, payment to such
Bank of the purchase price in immediately available funds by the Eligible
Assignee replacing such Bank, execution of such Assignment and Acceptance by
such Bank, such Eligible Assignee and the Agent, the payment by the Borrower of
all requested costs accruing to the date of purchase which the Borrower is
obligated to pay under Section 8.04 and all other amounts owed by the Borrower
to such Bank (other than Commitment Fees and Letter of Credit Fees accrued for
the account of such Bank and the principal of and interest on the Advances of
such Bank purchased by such Eligible Assignee) and notice by the Borrower to the
Agent that such payment has been made, such Eligible Assignee shall constitute a
"Bank" hereunder with a Commitment as so specified and the Bank being so
replaced shall no longer constitute a "Bank" hereunder except that the rights
under Sections 2.08, 2.11, 2.12 and 8.04 of the Bank being so replaced shall
continue with respect to events and occurrences before or concurrently with its
ceasing to be a "Bank" hereunder. If, however, (x) a Bank accepts such an offer
and such Eligible Assignee fails to purchase such rights and interest on such
specified date in accordance with the terms of such offer or such Eligible
Assignee or the Agent fails to execute the relevant Assignment and Acceptance,
the Borrower shall continue to be obligated to pay the increased costs to such
Bank pursuant to Section 2.11 or the additional amounts pursuant to Section
2.12, as the case may be, or (y) the Bank proposed to be replaced fails to
accept such purchase offer or to execute the relevant Assignment and Acceptance,
the Borrower shall not be obligated to pay to such Bank such increased costs or
additional amounts incurred or accrued from and after the date of such purchase
offer.
Section 2.17 Evidence of Indebtedness. Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Bank resulting from each Advance owing to
such Bank from time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time hereunder. The Borrower agrees
that upon notice by any Bank to the Borrower (with a copy of such notice to the
Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Bank to evidence (whether for purposes
of pledge, enforcement or otherwise) the Advances owing to, or to be made by,
such Bank, the Borrower shall promptly execute and deliver to such Bank, with a
copy to the Agent, a Note in substantially the form of Exhibit A hereto, payable
to the order of such Bank in a principal amount equal to the Commitment of such
Bank. All references to Notes in the Loan Documents shall mean Notes, if any, to
the extent issued hereunder.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Effectiveness. This Agreement
shall become effective on and as of the first date (the "Availability Date") on
which the Agent shall have received counterparts of this Agreement duly executed
by the Borrower and all of the Banks and the following additional conditions
precedent shall have been satisfied, except that Section 2.04, Section 2.06 and
Section 5.01(i) shall become effective as of the first date on which the Agent
shall have received counterparts of this Agreement duly executed by the Borrower
and all of the Banks:
(a) The Borrower shall have notified the Agent in writing
as to the proposed Availability Date, and the Availability Date shall
occur no later than June 30, 2004.
(b) Each of the Co-Lead Arrangers shall be reasonably
satisfied that there has been no material adverse change since August
18, 2003 (which shall not be deemed to refer to the contemplated
restructurings disclosed to the Co-Lead Arrangers prior to such date)
in either (i) the corporate and legal structure and capitalization of
the Borrower and its material Subsidiaries, including, without
limitation, the charters and bylaws of each of the Borrower and each of
its
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material Subsidiaries and each agreement or instrument relating thereto
or (ii) the projected financial condition of the Borrower and its
Subsidiaries on a consolidated basis following the Order Entry.
(c) The Agent shall have received on or before the
Availability Date the following, each dated such day, in form and
substance reasonably satisfactory to the Agent and (except for the
Notes) in sufficient copies for each Bank:
(i) The Notes to the order of the Banks to the
extent requested by any Bank pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving each Loan
Document to which the Borrower is or is to be a party, and of
all documents evidencing other necessary corporate or
organizational action and governmental approvals, if any, with
respect to each Loan Document to which the Borrower is or is
to be a party.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to
sign each Loan Document to which the Borrower is or is to be a
party and the other documents to be delivered by the Borrower
hereunder.
(iv) A favorable opinion of Xxxxx X. Xxxxxxxxx,
Assistant Secretary and Assistant General Counsel for the
Borrower, in substantially the form of Exhibit C-1 hereto.
(v) A favorable opinion of Xxxxx Xxxxx LLP,
counsel for the Borrower, in substantially the form of Exhibit
C-2 hereto.
(vi) A solvency opinion of Xxxxxxxx Xxxxx Xxxxxx
& Zukin in form and substance satisfactory to the Co-Lead
Arrangers.
(vii) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(d) Each of the Co-Lead Arrangers shall be satisfied that
the investigation of the Borrower by the Securities and Exchange
Commission has been concluded or will be concluded without (i) giving
rise to a Material Adverse Effect, including, without limitation, the
obligation to restate prior reported earnings or (ii) adversely
affecting the Borrower's ability to access the capital markets in the
reasonable judgment of any of the Co-Lead Arrangers.
(e) There shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before
any arbitrator or governmental instrumentality that (i) could
reasonably be expected to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to affect the legality, validity
or enforceability of the Borrower's obligations or the rights and
remedies of the Banks relating to the Agreement and the other Loan
Documents, and except as set forth in Schedule 4.01(f) to this
Agreement there shall have been no material adverse change in the
status, or financial effect on the Borrower and its subsidiaries on a
consolidated basis, of the Disclosed Litigation from that described to
the Agent prior to August 18, 2003.
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(f) There shall have occurred no material adverse change
(which term shall not be deemed to refer to the commencement of the
Chapter 11 Cases) in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower and
its subsidiaries, on a consolidated basis, since December 31, 2002,
except as disclosed in the June 2003 10-Q and except for the accounting
charges to be taken by the Borrower directly in connection with the
Settlement Payments and except as set forth in Schedule 4.01(f) to this
Agreement, and the Agent shall have received a certificate signed by a
Responsible Officer of the Company stating that the condition in this
Section 3.01(f) has been satisfied as of the Effective Date.
(g) Each of the Co-Lead Arrangers shall be satisfied that
the Borrower and its subsidiaries are not subject to material
contractual or other restrictions that would be violated by the
Transaction, including the incurrence of indebtedness under this
Agreement, the Master LC Facility Agreement and the Revolving Credit
Agreement, the granting of guarantees and collateral and the payment of
dividends by subsidiaries.
(h) The Master LC Facility Agreement shall be effective
unless terminated in accordance with its terms.
(i) The Revolving Credit Agreement shall be effective in
accordance with its terms.
(j) Except as otherwise permitted by the Loan Documents,
all governmental and third party consents and approvals necessary in
connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not
reasonably acceptable to the Co-Lead Arrangers) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Co-Lead Arrangers that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated
hereby.
(k) The Plan of Reorganization shall have been confirmed,
including without limitation the economic and other terms of the
settlement contemplated thereby, without any material changes not
approved by each of the Co-Lead Arrangers.
(l) A final, non-appealable order reasonably satisfactory
to the Co-Lead Arrangers shall have been entered in the Chapter 11
Cases approving the establishment of one or more trusts pursuant to
Section 524(g) of the Bankruptcy Code in order to resolve the present
asbestos claims and future demands against any of the Borrower's
subsidiaries identified on Schedule 4.01(h) hereto, arising from
exposure to asbestos and/or asbestos-related products prior to the date
of entry of such order, which order (i) enjoins the assertion of such
asbestos claims against the Borrower and such subsidiaries, (ii)
contains an injunction which is reasonably satisfactory in scope,
nature and extent to each of the Co-Lead Arrangers and (iii)
incorporates the terms of the Plan of Reorganization.
(m) A final, non-appealable order reasonably satisfactory
to each of the Co-Lead Arrangers shall have been entered in the Chapter
11 Cases approving the establishment of one or more trusts pursuant to
Section 105(a) of the Bankruptcy Code in order to resolve the present
silica claims and future demands against any of the Borrower's
subsidiaries identified on Schedule 4.01(h) hereto, arising from
exposure to silica and/or silica related products prior to the date of
entry of such order, which order (i) enjoins the assertion of such
silica claims against the Borrower and such subsidiaries, (ii) contains
an injunction which is reasonably satisfactory in scope, nature and
extent to each of the Co-Lead Arrangers and (iii) incorporates the
terms of the
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Plan of Reorganization. The entries of the orders referred to in
clauses (m) and (n) of this Section 3.01 are collectively referred to
as the "Order Entry".
(n) The long-term senior unsecured debt of the Borrower
shall have been recently confirmed by letter at BBB or higher (stable
outlook) by S&P and Baa2 or higher (stable outlook) by Xxxxx'x,
provided, that if all other conditions precedent to funding under the
Senior Unsecured Credit Facility have been met and S&P and/or Xxxxx'x
has stated in writing that the only condition remaining to be met in
order for the Borrower to attain such ratings is the funding of the
Settlement Payments, the Co-Lead Arrangers will deliver a letter to S&P
and/or Xxxxx'x, as the case may be, to the effect that the Settlement
Payments will be funded immediately upon receipt of written
confirmation of such ratings.
(o) (i) At least $300 million of the "Revolving Credit
Commitments" under and as defined in the Revolving Credit Agreement
shall on the Availability Date be available to be drawn, and such
commitments shall not be scheduled to terminate before the date which
is at least eighteen months after the proposed Availability Date and
(ii) the Borrower shall not have indebtedness in excess of $300 million
due on or before the first anniversary of the Availability Date
(excluding indebtedness under this Agreement).
(p) The Borrower shall have delivered, at least 30 days
before the date of the First Drawdown Date, a complete initial draft of
a preliminary prospectus or preliminary offering memorandum or
preliminary private placement memorandum (an "Offering Document") to
the Take-Out Bankers (with a copy to the Co-Lead Arrangers) relating to
the then-contemplated Take-Out Securities, which Offering Document
contains all financial statements and other data to be included therein
(including all audited financial statements, all unaudited financial
statements (which shall have been reviewed by the independent
accountants as provided in Statement on Auditing Standards No. 71) and
all appropriate pro forma financial statements prepared in accordance
with, or reconciled to, GAAP and prepared in accordance with Regulation
S-X under the Securities Act of 1933 and all other data (including
selected financial data) that the Securities and Exchange Commission
would require in a registered public offering of the Take-Out
Securities), and can arrange for the delivery of a customary comfort
letter in connection therewith satisfactory to the Take-Out Bankers.
(q) An engagement letter in connection with the offering
of equity or debt securities described therein (including, without
limitation, the Take-Out Securities) among the Borrower and the Take
Out Bankers shall be in full force and effect.
(r) On the Availability Date, the following statements
shall be true and the Agent shall have received a certificate signed by
a duly authorized officer of the Borrower, dated the Availability Date,
stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Availability
Date,
(ii) No event has occurred and is continuing that
constitutes a Default,
(iii) Any default under the Borrower's or any of
its material Subsidiaries' material debt instruments that
would be triggered by the filing of the Chapter 11 Cases and
related transactions has been permanently waived or amended,
and
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(iv) To the Borrower's knowledge, the Borrower
will not be required for any reason to cause its consolidated
financial statements for fiscal year 2001 or 2002 to be
reaudited or restated after the date hereof, except in order
to reflect changes in the Borrower's segment reporting.
(s) All accrued fees and reasonable out-of-pocket
expenses of the Co-Lead Arrangers (including the reasonable fees and
expenses of counsel to the Co-Lead Arrangers for which invoices have
been submitted) shall have been paid.
(t) The Borrower shall have paid all accrued fees and
reasonable out-of-pocket expenses of the Agent (including reasonable
fees and expenses of counsel for which invoices have been submitted).
Section 3.02 Conditions Precedent to Each Advance. The obligation of
each Bank to make an Advance (including the First Advance and the Second
Advance) shall be subject to the further conditions precedent that each of the
Co-Lead Arrangers shall be satisfied that there are no material asbestos or
silica claims against the Borrower and its Subsidiaries, including any
Subsidiary not listed on Schedule 4.01(h) hereto, asserting exposure to
asbestos, asbestos-related products, silica and/or silica-related products prior
to the date of the Order Entry, that were not resolved pursuant to the Order
Entry which could reasonably be expected to have a Material Adverse Effect and
on the date of such Advance, the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing and the acceptance by the
Borrower of the proceeds of the Borrowing of which such Advance is a part shall
constitute a representation and warranty by the Borrower that on the date of
such Advance such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Advance (other
than those representations and warranties that expressly relate solely
to a specific earlier date, which shall remain correct as of such
earlier date), before and after giving effect to such Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date;
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, which constitutes a Default or an Event of Default; and
(iii) there exists no request or directive issued by any
governmental authority, central bank or comparable agency, injunction,
stay, order, litigation or proceeding purporting to affect or calling
into question the legality, validity or enforceability of any Loan
Document or the consummation of any transaction (including any Advance
or proposed Advance) contemplated hereby.
Section 3.03 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, the Agent,
the Co-Lead Arrangers and each Bank shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Persons unless an officer of the Agent responsible for the
transactions contemplated by this Agreement shall have received notice from such
Person prior to the date that the Borrower, by notice to the Agent, designates
as the proposed Availability Date, specifying its objection thereto. The Agent
shall promptly notify the Banks and the Borrower of the occurrence of the
Availability Date, which notice shall be conclusive and binding.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite organizational
power and authority to own its properties, to conduct its business as
now being conducted and to execute, deliver and perform each Loan
Document to which it is or is to be a party, except for any failures to
be so organized, existing, qualified to do business or in good standing
or to have such power and authority as would not, individually or in
the aggregate, have a Material Adverse Effect.
(b) The execution, delivery and performance by the
Borrower of each Loan Document to which it is or is to be a party and
the consummation of the transactions contemplated hereby (including,
without limitation, the Transaction, each Borrowing and the use of the
proceeds thereof) and the transactions contemplated thereby (i) are
within the Borrower's organizational power, (ii) have been duly
authorized by all necessary organizational action, and (iii) do not
contravene (A) the Borrower's certificate of organization or by-laws,
(B) any law, rule, regulation, order, writ, injunction or decree, or
(C) any contractual restriction under any material agreements binding
on or affecting the Borrower or any Subsidiary of the Borrower or any
other contractual restriction the contravention of which would have a
Material Adverse Effect.
(c) No authorization, approval, consent, license or other
action by, and no notice to or filing with, any governmental authority,
regulatory body or other Person is required for the due execution,
delivery and performance by the Borrower of each Loan Document to which
it is or is to be a party, or for the consummation of the transactions
contemplated hereby (including, without limitation, the Transaction,
each Borrowing and the use of the proceeds thereof) and the
transactions contemplated thereby, except consents, authorizations,
filings and notices which have been obtained or made and are in full
force and effect.
(d) This Agreement has been, and each other Loan Document
when delivered hereunder will have been, duly executed and delivered by
the Borrower and constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
(e) The Financial Statements have been reported on by
KPMG LLP and fairly present the consolidated financial position of the
Borrower and its consolidated subsidiaries as at such date and the
consolidated results of their operations and cash flows for the year
then ended, all in accordance with GAAP. The unaudited consolidated
balance sheet of the Borrower and its consolidated subsidiaries as at
June 30, 2003 and the related unaudited consolidated statements of
income and cash flows of the Borrower and its consolidated subsidiaries
for the six months then ended, included in the Borrower's June 2003
10-Q, fairly present, subject to year-end audit adjustments, the
consolidated financial position of the Borrower and its consolidated
subsidiaries as at such date and the consolidated results of their
operations and cash flows for the six months ended on such date, all in
accordance with GAAP. Since December 31, 2002 there has been no
material adverse change (which shall not be deemed to refer to the
filing of the Chapter 11 Cases or to the accounting charge to be taken
by the Borrower directly in connection with the
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Settlement Payments) in the condition (financial or otherwise),
operations, business or prospects of the Borrower and its Subsidiaries,
taken as a whole except as disclosed in the June 2003 10-Q.
(f) Except as set forth in the Borrower's Form 10-K for
the year ended December 31, 2002, the June 2003 10-Q and Schedule
4.01(f) to this Agreement and except for litigation, investigations and
proceedings arising after the date hereof that are described in
reasonable detail in a notice from the Borrower to the Agent, there is
no litigation, investigation or proceeding pending or, to the
Borrower's knowledge, threatened against or affecting the Borrower, any
of its Subsidiaries or any of its or their respective rights or
properties before any court or by or before any governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, (i) that could reasonably be expected to have a
Material Adverse Effect or (ii) that in any manner draws into question
or purports to affect any transaction contemplated hereby or the
legality, validity, binding effect or enforceability of any Loan
Document.
(g) Schedule 4.01(g) hereto constitutes a complete and
accurate list of all pending non-US lawsuits as of October 30, 2003
against the Borrower and its Subsidiaries (including, without
limitation, claims arising through a Subsidiary not listed on Schedule
II hereto) asserting exposure to asbestos, asbestos-related products,
silica and/or silica-related products and, except as set forth in such
Schedule 4.01(g) and other non-material asbestos or silica claims
disclosed to the Co-Lead Arrangers in writing prior to October 30,
2003, the Borrower has not been notified of (A) any claims against the
Borrower and its Subsidiaries asserting exposure to asbestos,
asbestos-related products, silica and/or silica-related products which
will not be resolved pursuant to the Order Entry or (B) any adoption or
change of any statute, rule or regulation affecting such claims or
future claims against the Borrower and its Subsidiaries asserting
exposure to asbestos, asbestos-related products, silica and/or
silica-related products, in each case, which could be reasonably
expected to have a Material Adverse Effect.
(h) Schedule 4.01(h) hereto lists all of the Borrower's
domestic Subsidiaries as of October 30, 2003.
(i) Neither the Borrower nor any Subsidiary of the
Borrower is engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of
Regulation U). Following the application of the proceeds of each
Advance, (i) not more than 25% of the value of the assets of the
Borrower that are subject to any arrangement with the Agent or any Bank
(herein or otherwise) whereby the Borrower's right or ability to sell,
pledge or otherwise dispose of assets is in any way restricted (or
pursuant to which the exercise of any such right is or may be cause for
accelerating the maturity of all or any portion of the Advances or any
other amount payable hereunder or under any such other arrangement),
will be margin stock (within the meaning of Regulation U); and (ii) not
more than 25% of the value of the assets of the Borrower and its
Subsidiaries that are subject to any arrangement with the Agent or any
Bank (herein or otherwise) whereby the right or ability of the Borrower
or any of its Subsidiaries to sell, pledge or otherwise dispose of
assets is in any way restricted (or pursuant to which the exercise of
any such right is or may be cause for accelerating the maturity of all
or any portion of the Advances or any other amount payable hereunder or
under any such other arrangement), will be any such margin stock. No
proceeds of any Advance will be used in any manner that is not
permitted by Section 5.02.
(j) The Borrower is not an "investment company", or a
company "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
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(k) Neither the Borrower nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", as such terms are defined in the Public Utility
Holding Company Act of 1935, as amended.
(l) No statement or information contained in this
Agreement or any other document, certificate or statement furnished to
the Agent or the Banks by or on behalf of the Borrower for use in
connection with the transactions contemplated by this Agreement or the
Notes (as modified or supplemented by other information furnished)
contains as of the date such statement, information, document or
certificate was so furnished any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made; provided, however, that, with
respect to any such information, exhibit or report consisting of
statements, estimates, pro forma financial information, forward-looking
statements and projections regarding the future performance of the
Borrower or any of its Subsidiaries ("Projections"), no representation
or warranty is made other than that such Projections have been prepared
in good faith based upon assumptions believed to be reasonable at the
time.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants. So long as any Advance or any other
amount payable by the Borrower hereunder or under any other Loan Document shall
remain unpaid or any Bank shall have any Commitment hereunder, the Borrower
will, unless the Required Banks shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries to comply, with all applicable law, rules, regulations
and orders (including, without limitation, ERISA and environmental laws
and permits) except to the extent that failure to so comply (in the
aggregate for all such failures) could not reasonably be expected to
have a Material Adverse Effect.
(b) Preservation of Corporate Existence, Etc. (i)
Preserve and maintain and cause each of its Subsidiaries to preserve
and maintain (unless, in the case of any Subsidiary, the Borrower or
such Subsidiary determines that such preservation and maintenance is no
longer necessary in the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole) its corporate existence, rights
(charter and statutory), franchises, permits, licenses, approvals and
privileges in the jurisdiction of its organization; provided, that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right, permit, license, approval, privilege or franchise
the failure to do so would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (ii)
qualify and remain qualified as a foreign organization in each
jurisdiction in which qualification is necessary or desirable in view
of its business and operations or the ownership of its Properties,
except where the failure to so qualify or remain qualified could not,
individually or in the aggregate, reasonably be expected to give rise
to a Material Adverse Effect.
(c) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments, charges and like levies
levied or imposed upon it or upon its income, profits or Property prior
to the date on which penalties attach thereto and (ii) all lawful
claims that, if unpaid, might by law become a Lien upon its Property;
provided that neither the Borrower nor any Subsidiary shall be required
to
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pay and discharge any such tax, assessment, charge, levy or claim if
the failure to do so (in the aggregate for all such failures) could not
reasonably be expected to have a Material Adverse Effect.
(d) Reporting Requirements. Furnish to the Agent:
(i) not later than 60 days after the end of each
of the first three quarters of each fiscal year of the
Borrower, (1) the consolidated balance sheet of the Borrower
and its consolidated subsidiaries as at the end of such
quarter and the consolidated statements of income and cash
flows of the Borrower and its consolidated subsidiaries for
the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, all in reasonable
detail, and (2) a copy of the Borrower's Form 10-Q for such
quarter as filed with the SEC and copies of each Form 8-K
(other than press releases) filed by the Borrower with the SEC
during such quarter;
(ii) not later than 120 days after the end of
each fiscal year of the Borrower, (1) copies of the audited
consolidated balance sheet of the Borrower and its
consolidated subsidiaries as at the end of such fiscal year
and audited consolidated statements of income, retained
earnings and cash flows of the Borrower and its consolidated
subsidiaries for such fiscal year, and (2) a copy of the
Borrower's Form 10-K for such year as filed with the SEC and
copies of each Form 8-K filed by the Borrower with the SEC
during such year (other than those Forms 8-K previously
delivered to the Banks in accordance with Section 5.01(d)(i)
and press releases);
(iii) within five Business Days after filing with
the SEC, copies of all registration statements (other than on
Form S-8), proxy statements and Schedules 13-D filed by, or in
respect of, the Borrower or any of its Subsidiaries with the
SEC;
(iv) as soon as possible, and in any event within
ten days after any Responsible Officer has obtained knowledge
of the occurrence of any Default or Event of Default, written
notice thereof setting forth details of such Default or Event
of Default and the actions that the Borrower has taken and
proposes to take with respect thereto;
(v) promptly (and in any event within five
Business Days) after any change in, or withdrawal or
termination of, the rating of any senior unsecured long-term
debt of the Borrower by S&P or Xxxxx'x, notice thereof;
(vi) promptly after the sending or filing
thereof, copies of all reports that the Borrower sends to any
of its holders of common stock; and
(vii) such other information as any Bank through
the Agent may from time to time reasonably request.
Information required to be delivered pursuant to Sections 5.01(d)(i),
5.01(d)(ii), 5.01(d)(iii) or 5.01(d)(vi) shall be deemed to have been
delivered on the date on which the Borrower provides notice to each
Agent that such information has been posted on the Borrower's website
on the Internet at xxx.xxxxxxxxxxx.xxx, at xxx.xxx/xxxxx/xxxxxxxx.xxx
or at another website identified in such notice and accessible by the
Banks without charge; provided that the Borrower shall deliver paper
copies of the information referred to in such Sections to the Agent for
distribution to (x) any Bank to which the above referenced websites are
for any reason not available if such
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Bank has so notified the Borrower and (y) any Bank that has notified
the Borrower that it desires paper copies of all such information.
(e) Inspections. At any reasonable time and from time to
time, in each case upon reasonable notice to the Borrower and subject
to any applicable restrictions or limitations on access to any facility
or information that is classified or restricted by contract or by law,
regulation or governmental guidelines, permit each Bank to visit and
inspect the properties of the Borrower or any Subsidiary of the
Borrower, and to examine and make copies of and abstracts from the
records and books of account of the Borrower and its Subsidiaries and
discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries with its and their officers and independent accountants
provided, however, that advance notice of any discussion with such
independent public accountants shall be given to the Borrower, and the
Borrower shall have the opportunity to be present at any such
discussion.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Subsidiary in
accordance with GAAP.
(g) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve,
all of its material properties that are used or useful in the conduct
of the business of the Borrower and its Subsidiaries, taken as a whole,
in good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each
of its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are
fair and reasonable and, if a comparable arm's-length transaction is
known by the Borrower, no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate; provided, however, that the
foregoing restriction shall not apply to
(i) transactions between or among the Borrower
and its subsidiaries;
(ii) transactions or payments pursuant to any
employment arrangements or employee, officer or director
benefit plans or arrangements entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business;
(iii) to the extent permitted by law, customary
loans, advances, fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or
consultants of the Borrower or any of its Subsidiaries;
(iv) any transactions pursuant to agreements
among the Borrower and/or its Subsidiaries and the Trusts
entered into in connection with the Plan of Reorganization;
(v) transactions pursuant to any contract or
agreement in effect on the date hereof, as the same may be
amended, modified or replaced from time to time, so long as
any such contract or agreement as so amended, modified or
replaced is, taken as a whole, no less favorable to the
Borrower and its Subsidiaries in any material respect than the
contract or agreement as in effect on the date hereof;
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(vi) any transaction or series of transactions
between the Borrower or any Subsidiary and any of their joint
ventures, provided that (a) such transaction or series of
transactions is in the ordinary course of business and
consistent with past practices of the Borrower, and/or its
Subsidiaries and their joint ventures and (b) such Affiliate
transaction involves aggregate consideration paid to such
Affiliate not in excess of $35 million; or
(vii) any payment, distribution or other
transaction of the type described in 5.02(c) and permitted
thereunder.
(i) Use its best efforts to effect, as promptly as practicable
after the date hereof, one or more capital markets issuances of debt
(and, after the date which is 180 days after the Availability Date,
equity-linked) offerings or placements in aggregate amount sufficient
to (i) reduce the Commitments hereunder to zero and/or repay the
Advances in full (it being understood that this covenant shall not
create an obligation on the part of the Borrower to refinance the
Commitments and Advances hereunder in their entirety or substantially
in their entirety with equity-linked securities) and (ii) repay
"Advances" (as defined in the Master LC Facility Agreement) in full
under the Master LC Facility Agreement.
Section 5.02 Negative Covenants. So long as any Advance or any other
amount payable by the Borrower hereunder or under any other Loan Document shall
remain unpaid or any Bank shall have any Commitment hereunder, the Borrower will
not, without the written consent of the Required Banks:
(a) Liens, Etc. Create or suffer to exist, or permit any
of its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its Properties whether now owned or hereafter
acquired to secure Indebtedness or reimbursement obligations in respect
of letters of credit, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens incurred pursuant to (A) the
transactions contemplated by the Receivables Transfer
Agreement, dated as of April 15, 2002, by and among Oilfield
Services Receivables Corporation, a Delaware corporation, as
transferor, Halliburton Energy Services, Inc., a Delaware
corporation, individually and as collection agent, other
parties thereto, and any replacement, extension or renewal
thereof, and the receivables purchase agreement related
thereto and (B) other Securitization Transactions;
(ii) Liens on or with respect to any of the
properties of the Borrower and any of its Subsidiaries
existing on the date hereof;
(iii) (A) Liens upon or in property acquired
(including acquisition through merger or consolidation) or
constructed or improved by the Borrower or any of its
Subsidiaries including general intangibles, proceeds and
improvements, accessories and upgrades thereto and created
contemporaneously with, or within 12 months after, such
acquisition or the completion of construction or improvement
to secure or provide for the payment of all or a portion of
the purchase price of such property or the cost of
construction or improvement thereof (including any
Indebtedness incurred to finance such acquisition,
construction or improvement), as the case may be and (B) Liens
on property (including any unimproved portion of partially
improved property) of the Borrower or any of its Subsidiaries
created within 12 months of completion of construction of a
new plant or plants on such property to secure all or part of
the cost of such construction (including any Indebtedness
incurred to finance such construction) if,
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in the opinion of the Borrower, such property or such portion
thereof was prior to such construction substantially
unimproved for the use intended by the Borrower; provided,
however, no such Lien shall extend to or cover any property
other than the property being acquired, constructed or
improved (including any unimproved portion of a partially
improved property) including general intangibles, proceeds and
improvements, accessories and upgrades thereto;
(iv) Liens arising in connection with capitalized
leases permitted hereunder, provided that no such Lien shall
extend to or cover any assets other than the assets subject to
such capitalized leases; and proceeds (including, without
limitation, proceeds from associated contracts and insurances)
of, and improvements, accessories and upgrades to, the
property leased pursuant thereto;
(v) any Lien existing on any property including
general intangibles, proceeds and improvements, accessories
and upgrades thereto prior to the acquisition (including
acquisition through merger or consolidation) thereof by the
Borrower or any of its Subsidiaries or existing on any
property of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a
Subsidiary, provided that such a Lien is not created in
contemplation or in connection with such acquisition or such
Person becoming a Subsidiary and no such Lien shall be
extended to cover property other than the asset being acquired
including general intangibles, proceeds and improvements,
accessories and upgrades thereto;
(vi) Liens to secure any extension, renewal,
refunding or replacement (or successive extensions, renewals,
refinancing, refundings or replacements), in whole or in part,
of any Indebtedness or other obligation secured by any Lien
referred to in the foregoing clauses (ii), (iii), (iv) and
(v), provided that (A) the principal amount of the
Indebtedness or other obligation secured thereby is no greater
than the outstanding principal amount of such Indebtedness or
other obligation immediately before such extension, renewal,
refinancing, refunding or replacement and (B) such Lien shall
only extend to such assets as are already subject to a Lien in
respect of such Indebtedness or other obligation;
(vii) Liens arising in connection with the pledge
of any Equity Interests in any joint venture (that is not a
Subsidiary), and liens on the assets of a JV Subsidiary, in
each case to secure Joint Venture Debt of such joint venture
and/or such JV Subsidiary. For purposes hereof, "Joint Venture
Debt" shall mean Indebtedness and other obligations as to
which the lenders will not, pursuant to the terms in the
agreements governing such Indebtedness, have any recourse to
the stock or assets of the Borrower or any Subsidiary, other
than such pledged assets of such JV Subsidiary
(viii) Liens on the Equity Interests of DII and
Mid-Valley, Inc. in favor of the Trusts;
(ix) Liens securing other Indebtedness and
obligations under hedge agreements, provided that at the time
of the creation, incurrence or assumption of any Indebtedness
or obligation under a hedge agreement secured by such Liens
and after giving effect thereto, the sum of the principal
amount of such Indebtedness and the xxxx-to-market value of
such obligations under hedge agreements secured by Liens
permitted by this clause (ix) shall not exceed, when taken
together with the aggregate principal amount of Indebtedness
of Subsidiaries outstanding pursuant to Section 5.02(b)(vii),
15%
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of Consolidated Net Worth as reflected in the most recent
financial statements delivered pursuant to Section 5.01(d)(i)
and (ii);
(x) Liens securing other Indebtedness provided
that the Obligations of the Borrower and its Subsidiaries
hereunder and under the other Loan Documents are secured
equally and ratably with such other Indebtedness; and
(xi) Liens arising in connection with the pledge
of any Equity Interests in any Project Finance Subsidiary, so
long as such Liens secure only Project Financing.
(b) Indebtedness of Subsidiaries. Permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any
Indebtedness except:
(i) Indebtedness incurred in the ordinary course
of business and consistent with the past practices of the
Borrower's Subsidiaries;
(ii) Existing Indebtedness, including any
extension, renewal, refinancing or replacement thereof;
(iii) Project Financing;
(iv) Indebtedness of any Person that becomes a
Subsidiary after the date hereof; provided that such
Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(v) Indebtedness referred to in Section
5.02(a)(iii) and 5.02(a)(iv) and secured by Liens permitted
thereby;
(vi) Indebtedness under Securitization
Transactions;
(vii) Additional Indebtedness, provided that at
the time of the creation, incurrence or assumption of such
Indebtedness, the aggregate principal amount thereof taken
together with the aggregate principal amount of outstanding
Indebtedness incurred in reliance on this clause (vii) and the
aggregate principal amount of outstanding Indebtedness secured
by Liens permitted under clause (ix) of Section 5.02(a), shall
not exceed 15% of Consolidated Net Worth, as reflected in the
most recent financial statements delivered pursuant to Section
5.01(d)(i) and (ii);
(viii) Indebtedness of Subsidiaries that are
special-purpose business trusts under trust preferred
securities that are guaranteed by the Borrower;
(ix) Indebtedness of Subsidiary Guarantors so
long as such Subsidiary's guaranty remains in effect for so
long as such Indebtedness is outstanding; and
(x) Indebtedness under the Revolving Credit
Agreement and the Master LC Facility Agreement.
(c) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Interests now or hereafter outstanding, return any capital
to its stockholders, partners or members (or the equivalent Persons
thereof) as
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such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in
the Borrower or to issue or sell any Equity Interests therein, except
that:
(i) the Borrower may declare and may pay, once
declared, dividends and distributions payable on stock of the
Borrower only at levels per outstanding share in effect as of
the Availability Date (such amount to be appropriately
adjusted to reflect any stock split, reverse stock split,
stock dividend or similar transactions made after the date
hereof so that the aggregate amount of dividends payable after
such transaction is the same as the amount payable immediately
prior to such transaction); provided that (i) if an Event of
Default shall have occurred and be continuing or shall result
therefrom, no such declaration shall be permitted if any
Advances are then outstanding and (ii) if an Event of Default
under Section 6.01(a) shall have occurred and be continuing,
no payment or distribution shall be permitted if any Advances
are then outstanding;
(ii) any Subsidiary of the Borrower may declare
and pay dividends and distributions to the Borrower;
(iii) any Subsidiary of the Borrower may pay
dividends or distributions to all holders of a class of Equity
Interests of such Subsidiary on a pro rata basis or on a basis
that is more favorable to the Borrower;
(iv) the Borrower or any Subsidiary may redeem,
repurchase, retire or otherwise acquire any of its Equity
Interests in exchange for, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary
of the Borrower) of, Equity Interests of the Borrower;
(v) the Borrower or any Subsidiary of the
Borrower may redeem, repurchase, retire or otherwise acquire
any of its Equity Interests in connection with a compensation
plan, program or practice; provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $20 million in any fiscal
year of the Borrower;
(vi) DII may purchase common stock of the
Borrower from HESI pursuant to the Stock Agreement; and
(vii) the Borrower and any Subsidiary of the
Borrower may grant, issue, distribute or dividend Equity
Interests to its directors, officers and employees and make or
permit the vesting, lapse, exercise or payment of Equity
Interests in options, restricted stock, performance awards (in
the form of either cash or stock of the Borrower), and other
similar grants and awards pursuant to existing (or
substantially similar replacement or amended) compensation
plans, programs or practices.
For purposes of clarification, it is agreed and understood that Section
5.02(c) does not restrict the issuance, grant, dividend or distribution
of Equity Interests.
(d) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions, all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person;
provided, however,
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that this Section 5.02(d) shall not prohibit any such merger or
consolidation if (1) at the time of, and immediately after giving
effect to, such merger or consolidation, no Default or Event of Default
exists or would result therefrom, (2) the Borrower is the surviving
corporation in such merger or consolidation, and (3) the Borrower shall
continue to have senior unsecured long-term debt rated at least BBB- by
S&P and Baa3 by Xxxxx'x.
(e) Use of Proceeds. Use the proceeds of any Advance or
any Letter of Credit for any purpose other than for general corporate
purposes of the Borrower or use any such proceeds (i) in a manner which
violates or results in a violation of any law or regulation, (ii) to
purchase or carry any margin stock (as defined in Regulation U), except
that this clause (ii) shall not prohibit the Borrower from using
proceeds of the Advances to purchase its own common stock if the
aggregate amount of all such proceeds so used does not exceed
$100,000,000 and if each Notice of Borrowing pertaining to such
Advances specified that such proceeds would be so used, (iii) to extend
credit to others for the purpose of purchasing or carrying any margin
stock (as defined in Regulation U), or (iv) to acquire any equity
security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
(f) Prepayments, Etc. of Indebtedness. Prepay, redeem,
purchase, defease or otherwise satisfy in cash prior to the scheduled
maturity thereof in any manner any Indebtedness, or permit any of its
Subsidiaries to do so, except (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) regularly scheduled
or required prepayments or redemptions of Indebtedness that is
otherwise permitted under this Agreement, (iii) the payment of
intercompany Indebtedness, (iv) the payment of Project Financing by a
Project Finance Subsidiary and (v) the prepayment of any Indebtedness
provided that the aggregate principal amount of such prepayments as to
any single item of Indebtedness shall not exceed $1,000,000, or amend,
modify or change in any manner any term or condition relating to
repayment or redemption of the principal amount of any such
Indebtedness if the result of such amendment or modification would be
to cause any principal payment to be due prior to the Maturity Date
which prior to such amendment or modification was due after the
Maturity Date.
Section 5.03 Financial Covenants. So long as any Advance shall remain
unpaid or any Bank shall have any Commitment hereunder, the Borrower will:
(a) Interest Charge Coverage Ratio. Not permit the
Interest Charge Coverage Ratio as of the end of a fiscal quarter to be
less than 3.50 to 1.00.
(b) Consolidated Debt to Total Consolidated
Capitalization Ratio. Maintain at all times a maximum Consolidated Debt
to Total Consolidated Capitalization Ratio of 0.55 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) (i) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable, whether at the due
date thereof or by acceleration thereof or otherwise or (ii) the
Borrower shall fail to pay any interest on any Advance or any fees
hereunder or other amount payable hereunder or the Borrower shall fail
to make any other payment under any Loan Document, in each case under
this clause (ii), within five Business Days of when the same
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becomes due and payable, whether at the due date thereof or by
acceleration thereof or otherwise; or
(b) Any representation, warranty or certification made by
the Borrower (or any of its officers) herein pursuant to or in
connection with any Loan Document or in any certificate or document
furnished to any Bank pursuant to or in connection with any Loan
Document, or any representation or warranty deemed to have been made by
the Borrower pursuant to Section 3.02, shall prove to have been
incorrect or misleading in any material respect when made or so deemed
to have been made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(b), (d), (e), or
(i), 5.02 or 5.03 of this Agreement; or (ii) the Borrower shall fail to
perform or observe any other term, covenant or agreement contained in
Section 5.01 or any other term, covenant or agreement contained in any
Loan Document (other than any term, covenant or agreement covered by
Section 6.01(a)) and, in each case under this clause (ii), such failure
shall remain unremedied for 30 days after notice thereof shall have
been given to the Borrower by the Agent or by any Bank; or
(d) The Borrower or any material Subsidiary of the
Borrower shall default in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Debt (other than Project Financing or Permitted Non-Recourse Debt)
(whether principal, interest, premium or otherwise) of, or directly or
indirectly guaranteed by, the Borrower or any such material Subsidiary,
as the case may be, in excess of $75,000,000 or the Borrower or any
material Subsidiary of the Borrower shall default in the performance or
observance of any obligation or condition with respect to any such Debt
(other than Project Financing or Permitted Non-Recourse Debt) if the
effect of such default is to accelerate the maturity of or require the
posting of cash collateral with respect to any such Debt or, in any
case, any such Debt shall become due prior to its stated maturity
(other than by a regularly-scheduled required payment and mandatory
prepayments from proceeds of asset sales, debt incurrence, excess cash
flow, equity issuances and insurance proceeds); provided that for the
avoidance of doubt the parties acknowledge and agree that (i) any
payment required to be made under a guaranty or letter of credit
reimbursement agreement described in the definition herein of Debt
shall be due and payable at the time such payment is due and payable
under the terms of such guaranty or letter of credit reimbursement
agreement (taking into account any applicable grace period) and such
payment shall not be deemed to have been accelerated or have become due
as a result of the obligation guaranteed having become due and (ii) the
conversion of the Convertible Notes shall not be a Default or Event of
Default hereunder; or
(e) The Borrower or any material Subsidiary of the
Borrower (other than a Filing Entity in connection with the filing of
the Chapter 11 Cases) shall be adjudicated a bankrupt or insolvent by a
court of competent jurisdiction, or generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Borrower or any such material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its Property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 120 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against,
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or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its Property) shall
occur; or the Borrower or any such material Subsidiary shall take any
corporate or organizational action to authorize any of the actions set
forth above in this subsection (e) (other than in connection with the
filing of the Chapter 11 Cases); or
(f) Any final, non-appealable judgment or order by a
court of competent jurisdiction for the payment of money in excess of
$75,000,000 over and above the amount of insurance coverage available
from a financially sound insurer that has acknowledged coverage shall
be rendered against the Borrower or any material Subsidiary of the
Borrower and not discharged within 30 days after such order or judgment
becomes final; or any judgment, writ, warrant of attachment or
execution or similar process shall be issued or levied against a
substantial part of the property of the Borrower or any material
Subsidiary of the Borrower and such judgment, writ, warrant of
attachment or execution or similar process shall not be released,
stayed, vacated or fully bonded within 30 days after its issue or levy;
or
(g) The Borrower or any of its ERISA Affiliates shall
incur, or, in the reasonable opinion of the Required Banks, shall be
reasonably likely to incur liability in excess of $75,000,000 in the
aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of the Borrower or any of its ERISA Affiliates from a Multiemployer
Plan; or (iii) the reorganization or termination of a Multiemployer
Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Banks, by notice to the Borrower, declare the
obligation of each Bank to make Advances to be terminated, whereupon the same
(and all of the Commitments) shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Banks, by notice to the
Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such other amounts shall become and be
forthwith due and payable, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or any other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of any actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code, (A) the Commitment of each
Bank and the obligation of each Bank to make Advances shall automatically be
terminated, and (B) the Advances, all interest thereon and all other amounts
payable under this Agreement shall automatically and immediately become and be
due and payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration, or any other notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
Section 7.01 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as Agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
hereof or of any other Loan Document, together with such powers and discretion
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement or collection
of the Notes), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Banks and such instructions shall be binding upon
all Banks and all holders of Notes; provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to any Loan Document or applicable law. The Agent agrees to
give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
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Section 7.02 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Loan Document,
except for their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (i) may consult with legal
counsel (including, without limitation, counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any of the Loan Documents or any other instrument or
document; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any of
Loan Documents or any other instrument or document on the part of the Borrower
or any Subsidiary of the Borrower or to inspect the Property (including the
books and records) of the Borrower or any Subsidiary of the Borrower; (iv) shall
not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan Documents
or any other instrument or document; and (v) shall incur no liability under or
in respect of any of Loan Documents or any other instrument or document by
acting upon any notice (including telephonic notice), consent, certificate or
other instrument or writing (which may be by facsimile, telegram or telex)
believed by it to be genuine and signed, given or sent by the proper party or
parties.
Section 7.03 The Agent and its Affiliates. With respect to its
Commitment, the Advances owed to it and the Notes issued to it, each Bank which
is also the Agent shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not the Agent; and
the term "Bank" or "Banks" shall, unless otherwise expressly indicated, include
any Bank serving as the Agent in its individual capacity. Any Bank serving as
the Agent and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any Affiliate of
the Borrower and any Person who may do business with or own securities of the
Borrower or any Affiliate of the Borrower, all as if such Bank were not the
Agent and without any duty to account therefor to the Banks.
Section 7.04 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the Financial Statements and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank 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 Loan Documents or any
other instrument or document.
Section 7.05 Indemnification. The Banks agree to indemnify the Agent
(to the extent not promptly reimbursed by the Borrower), ratably according to
the respective principal amounts of the Notes then held by each of the Banks (or
if no Advances are at the time outstanding or if any Notes are held by Persons
which are not Banks, ratably according to either (a) the respective amounts of
the Banks' Commitments, or (b) if no Commitments are at the time outstanding,
the respective amounts of the Commitments immediately prior to the time the
Commitments ceased to be outstanding), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of any of the Loan Documents or any other instrument or document furnished
pursuant hereto or in connection herewith, or any action taken or omitted by the
Agent under any of the Loan Documents or any other instrument or document
furnished pursuant hereto or in connection herewith ("Indemnified Costs");
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
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expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent promptly upon demand for such Bank's ratable share of any costs and
expenses (including, without limitation, counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, any of the Loan Documents or any other instrument or
document furnished pursuant hereto or in connection herewith to the extent that
the Agent is not reimbursed for such expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any other Agent, any Bank or a third party.
Section 7.06 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Agent which, if such successor Agent is not a Bank, is approved by the
Borrower (which approval will not be unreasonably withheld). If no successor
Agent shall have been so appointed by the Required Banks (and, if not a Bank,
approved by the Borrower), and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, which shall be a commercial bank organized
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
Section 7.07 Co-Lead Arrangers, Syndication Agent, Documentation Agent.
The Co-Lead Arrangers, Syndication Agent and Documentation Agent shall have no
duties, obligations or liabilities hereunder or in connection herewith.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any Note or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Banks, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitment of any Bank or subject any Bank to any additional
obligations, (c) reduce the principal of, or interest on, the Advances or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Advances which shall be required
for the Banks or any of them to take any action hereunder or (f) amend Section
2.13 or this Section 8.01; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Banks required above to take such action, affect the rights or duties of the
Agent under this Agreement or any of the Notes.
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Section 8.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including facsimile
communication) and mailed, telecopied, or delivered or (y) as and to the extent
set forth in Section 8.02(b) and in the proviso to this Section 8.02(a), (i) if
to the Borrower, at its address at 0000 XxXxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000 Attention: Xxxxx X. Xxxxxxx, Vice President and Treasurer, Facsimile:
(000) 000-0000; (ii) if to any Bank listed on the signature pages hereof, at its
Domestic Lending Office specified opposite its name on Schedule III hereto;
(iii) if to any other Banks, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it becomes a Bank; (iv) if to the
Agent, at the addresses set forth below:
Citicorp North America, Inc.
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Bank Loan Syndications Department
with a copy to:
Citicorp North America, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxx, Vice President
(but references herein to the address of the Agent for purposes of payments or
making available funds or for purposes of Section 8.08(c) shall not include the
address to which copies are to be sent); or, as to the Borrower or the Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent,
provided that materials required to be delivered pursuant to Section 5.01(d)(i),
(ii), (iii) or (vi), unless delivered by posting to a website as provided in
Section 5.01(d), shall be delivered to the Agent as specified in Section 8.02(b)
or as otherwise specified to the Borrower by the Agent. Each such notice or
communication shall be effective (i) if mailed, upon receipt, (ii) if delivered
by hand, upon delivery with written receipt, and (iii) if telecopied, when
receipt is confirmed by telephone, except that any notice or communication to
the Agent pursuant to this Agreement shall not be effective until actually
received by the Agent.
(b) So long as CNAI or any of its Affiliates is the
Agent, materials required to be delivered pursuant to Section 5.01(d)(i), (ii),
(iii) or (vi), unless delivered by posting to a website as provided in Section
5.01(d), shall be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Banks by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Borrower, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications") available
to the Banks by posting such notices on Intralinks, "e-Disclosure", the Agent's
internet delivery system that is part of Fixed Income Direct, Global Fixed
Income's primary web portal, or a substantially similar electronic system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose,
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non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform. Notices and other communications to the Banks and the Agent hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Agent and the
applicable Bank. The Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
(c) Each Bank agrees that notice to it (as provided in
the next sentence) (a "Notice") specifying that any Communications have been
posted to the Platform shall constitute effective delivery of such information,
documents or other materials to such Bank for purposes of this Agreement;
provided that if requested by any Bank the Agent shall deliver a copy of the
Communications to such Bank by email or facsimile. Each Bank agrees (i) to
notify the Agent in writing of such Bank's e-mail address to which a Notice may
be sent by electronic transmission (including by electronic communication) on or
before the date such Bank becomes a party to this Agreement (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Bank) and (ii) that any Notice may be sent to such e-mail
address.
Section 8.03 No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 8.04 Expenses and Taxes; Compensation. (a) The Borrower agrees
to pay on demand (i) all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) of the Co-Lead
Arrangers and the Agent and each of their respective affiliates in connection
with the preparation, execution, delivery and administration of the Loan
Documents and the other documents and instruments delivered hereunder or in
connection with any amendments, modifications, consents or waivers in connection
with the Loan Documents, (ii) all reasonable fees and expenses of counsel for
the Co-Lead Arrangers and the Agent, during the existence of any Event of
Default, any Bank with respect to advising the Agent or, during the existence of
any Event of Default, any Bank as to its rights and responsibilities under the
Loan Documents and (iii) all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) of the
Co-Lead Arrangers, the Agent and each Bank in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of the Loan
Documents (including the enforcement of rights under this Section 8.04(a)) and
the other documents and instruments delivered hereunder and rights and remedies
hereunder and thereunder.
(b) If any payment or purchase of principal of, or
Conversion of, any Eurodollar Rate Advance is made other than on the last day of
the Interest Period for such Advance, as a result of a payment, purchase or
Conversion pursuant to Section 2.08, Section 2.09, Section 2.14, Section 2.15 or
Section 2.16, acceleration of the maturity of the Advances pursuant to Section
6.01 or for any other reason, the Borrower shall, within 15 days after demand by
any Bank (with a copy of such demand to the Agent), pay to the Agent for the
account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, purchase or Conversion, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense reasonably incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Bank to fund or maintain such Advance. A certificate as to the amount of
such
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additional losses, costs or expenses, submitted to the Borrower and the Agent by
such Bank, shall be conclusive and binding for all purposes, absent manifest
error.
(c) The Borrower agrees to indemnify and hold harmless
the Agent, the Banks, the Co-Lead Arrangers and their respective directors,
officers, employees, affiliates, advisors, attorneys and agents (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and expenses of
counsel) for which any of them may become liable or which may be incurred by or
asserted against any of the Indemnified Parties in connection with or arising
out of (i) any Loan Document or any other document or instrument delivered in
connection herewith, (ii) the existence of any condition on any property of the
Borrower or any of its Subsidiaries that constitutes a violation of any
environmental protection law or any other law, rule, regulation or order, or
(iii) any investigation, litigation, or proceeding, whether or not any of the
Indemnified Parties is a party thereto, related to or in connection with any of
the foregoing or any Loan Document, including, without limitation, any
transaction in which any proceeds of any Advance are applied, including, without
limitation, in each of the foregoing cases, any such claim, damage, loss,
liability or expense resulting from the negligence of any Indemnified Party, but
excluding any such claim, damage, loss, liability or expense sought to be
recovered by any Indemnified Party to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Party.
(d) Except as set forth in the next succeeding sentence,
each of the Banks and the Agent and each of their respective directors,
officers, employees, affiliates, advisors and agents shall not be liable to the
Borrower for, and the Borrower agrees not to assert any claim for, amounts
constituting special, indirect, consequential, punitive, treble or exemplary
damages arising out of or in connection with any breach by such Bank or the
Agent of any of its obligations hereunder. If the Borrower becomes liable to a
third party for amounts constituting punitive, treble or exemplary damages as a
result of a breach of an obligation hereunder by a Bank or the Agent, as the
case may be, the Borrower shall be entitled to claim and recover (and does not
waive its rights to claim and recover) such amounts from such Bank or the Agent,
as the case may be, to the extent such Bank or the Agent, as the case may be,
would be liable to the Borrower for such amounts but for the limitation set
forth in the preceding sentence.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, all obligations of the Borrower under
Section 2.11, Section 2.12 and this Section 8.04 shall survive the termination
of the Commitments and this Agreement and the payment in full of all amounts
hereunder and under the Notes.
Section 8.05 Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making by the Required Banks of
the request or the granting by the Required Banks of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.01, each Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank (or by any branch, agency, subsidiary or other Affiliate of such
Bank, wherever located) to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any Note held by such Bank or any other Loan Document,
whether or not such Bank shall have made any demand under this Agreement or any
such Note or any other Loan Document and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Borrower after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which such Bank
may have.
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Section 8.06 Limitation and Adjustment of Interest. (a) Notwithstanding
anything to the contrary set forth herein, in any other Loan Document or in any
other document or instrument, no provision of any of the Loan Documents or any
other instrument or document furnished pursuant hereto or in connection herewith
is intended or shall be construed to require the payment or permit the
collection of interest in excess of the maximum non-usurious rate permitted by
applicable law. Accordingly, if the transactions with any Bank contemplated
hereby would be usurious under applicable law, if any, then, in that event,
notwithstanding anything to the contrary in any Note payable to such Bank, this
Agreement or any other document or instrument, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under applicable law
that is contracted for, taken, reserved, charged or received by such Bank under
any Note payable to such Bank, this Agreement or any other document or
instrument shall under no circumstances exceed the maximum amount allowed by
such applicable law, and any excess shall be canceled automatically and, if
theretofore paid, shall, at the option of such Bank, be credited by such Bank on
the principal amount of the indebtedness owed to such Bank by the Borrower or
refunded by such Bank to the Borrower, and (ii) in the event that the maturity
of any Note payable to such Bank is accelerated or in the event of any required
or permitted prepayment, then such consideration that constitutes interest under
law applicable to such Bank may never include more than the maximum amount
allowed by such applicable law and excess interest, if any, to such Bank
provided for in this Agreement or otherwise shall be canceled automatically as
of the date of such acceleration or prepayment and, if theretofore paid, shall,
at the option of such Bank, be credited by such Bank on the principal amount of
the indebtedness owed to such Bank by the Borrower or refunded by such Bank to
the Borrower. In determining whether or not the interest contracted for, taken,
reserved, charged or received by any Bank exceeds the maximum non-usurious rate
permitted by applicable law, such determination shall be made, to the extent
that doing so does not result in a violation of applicable law, by amortizing,
prorating, allocating and spreading, in equal parts during the period of the
full stated term of the loans hereunder, all interest at any time contracted
for, taken, charged, received or reserved by such Bank in connection with such
loans.
(b) In the event that at any time the interest rate
applicable to any Advance made by any Bank would exceed the maximum non-usurious
rate allowed by applicable law, the rate of interest to accrue on the Advances
by such Bank shall be limited to the maximum non-usurious rate allowed by
applicable law, but shall accrue, to the extent permitted by law, on the
principal amount of the Advances made by such Bank from time to time
outstanding, if any, at the maximum non-usurious rate allowed by applicable law
until the total amount of interest accrued on the Advances made by such Bank
equals the amount of interest which would have accrued if the interest rates
applicable to the Advances pursuant to Article II had at all times been in
effect. In the event that upon the final payment of the Advances made by any
Bank and termination of the Commitment of such Bank, the total amount of
interest paid to such Bank hereunder and under the Notes is less than the total
amount of interest which would have accrued if the interest rates applicable to
such Advances pursuant to Article II had at all times been in effect, then the
Borrower agrees to pay to such Bank, to the extent permitted by law, an amount
equal to the excess of (a) the lesser of (i) the amount of interest which would
have accrued on such Advances if the maximum non-usurious rate allowed by
applicable law had at all times been in effect or (ii) the amount of interest
which would have accrued on such Advances if the interest rates applicable to
such Advances pursuant to Article II had at all times been in effect over (b)
the amount of interest otherwise accrued on such Advances in accordance with
this Agreement.
Section 8.07 Binding Effect. This Agreement shall become effective as
provided in Section 3.01 hereof and thereafter shall be binding upon and inure
to the benefit of the Borrower and the Agent and each Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or obligations hereunder or under any other Loan Document or
any interest herein or therein without the prior written consent of all of the
Banks.
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Section 8.08 Assignments and Participations. (a) Each Bank may assign
to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment of all of a Bank's rights and obligations
under this Agreement, the amount of the Commitment of the assigning Bank being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with the Notes subject to such assignment and a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or any other instrument or document furnished pursuant hereto or in
connection herewith or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant hereto or in connection herewith; (ii) such
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any other Person or
the performance or observance by the Borrower or any other Person of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant hereto or in connection herewith; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the Financial Statements and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Bank or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement, any of the other Loan Documents or any other instrument or
document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as Agent on its
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Agent by the terms hereof or thereof, together with such
powers and discretion as are reasonably incidental thereto; (vii) such assignee
appoints and authorizes the Agent to take such action as the Agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
and discretion as are reasonably incidental thereto and (viii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(c) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Banks and the Commitment of, and the principal amount of the Revolving
Credit Advances owing to, each Bank from time to time (the "Register"). The
entries in the Register shall
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be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that it is an
Eligible Assignee, together with the Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit D, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. Within five Business Days after its
receipt of such notice, the Borrower shall execute and deliver to the Agent in
exchange for the surrendered Notes a new Note payable to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Note payable to the order of the assigning Bank in
an amount equal to the Commitment retained by it hereunder (such new Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A).
(e) Each Bank may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Notes held by it); provided, however, that (i) such Bank's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Bank shall remain the holder of any such Notes for all
purposes of this Agreement, (iv) the Borrower, the Agent and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and (v) the terms of
any such participation shall not restrict such Bank's ability to make any
amendment or waiver of this Agreement or any Note or such Bank's ability to
consent to any departure by the Borrower therefrom without the approval of the
participant, except that the approval of the participant may be required to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.08, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower or any of its Subsidiaries
furnished to such Bank by or on behalf of the Borrower or any of its
Subsidiaries; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to comply with
Section 8.11.
(g) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Revolving Credit Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Board.
Section 8.09 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
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agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be as effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.10 Jurisdiction; Damages. To the fullest extent it may
effectively do so under applicable law, (i) each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its Property, to the
non-exclusive jurisdiction of any New York state court or federal court sitting
in New York City, and any appellate court from any appeal thereof, in any action
or proceeding arising out of or relating to this Agreement, any of the Notes,
any other Loan Document or any other instrument or document furnished pursuant
hereto or in connection herewith or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of such action or proceeding may be heard and
determined in any such court; (ii) each of the parties hereto hereby irrevocably
and unconditionally waives the defense of an inconvenient forum to the
maintenance of such action or proceeding and any objection that it may now or
hereafter have to the laying of venue of any such action or proceeding in any
such court; (iii) the Borrower hereby agrees that service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding may be made by mailing or delivering a copy of such process
to the Borrower at its address specified in Section 8.02; and (iv) each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing herein shall affect the
rights of any Bank or the Agent to serve legal process in any other manner
permitted by law or affect the right that any party hereto may otherwise have to
bring any action or proceeding relating to this Agreement, any of the Notes or
any other instrument or document furnished pursuant hereto or in connection
herewith in the courts of any other jurisdiction. Each of the Borrower, the
Agent and the Banks hereby irrevocably and unconditionally waives, to the
fullest extent it may effectively do so under applicable law, any right it may
have to claim or recover in any action or proceeding referred to in this Section
8.11 any exemplary or punitive damages. The Borrower hereby further irrevocably
waives, to the fullest extent it may effectively do so under applicable law, any
right it may have to claim or recover in any action or proceeding referred to in
this Section 8.11 any special or consequential damages.
Section 8.11 Confidentiality. Each Bank agrees that it will use
reasonable efforts, to the extent not inconsistent with practical business
requirements, not to disclose without the prior consent of the Borrower (other
than to employees, auditors, accountants, counsel or other professional advisors
of the Agent or any Bank) any information with respect to the Borrower or its
Subsidiaries or the Transaction which is furnished pursuant to this Agreement,
provided that any Bank may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate in any
report, statement or testimony submitted to or required by any municipal, state
or Federal regulatory body having or claiming to have jurisdiction over any Bank
or submitted to or required by the Federal Reserve Board or the Federal Deposit
Insurance Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or appropriate in
response to any summons or subpoena in connection with any litigation, (d) in
order to comply with any law, order, regulation or ruling applicable to any
Bank, (e) to any assignee, participant, prospective assignee, or prospective
participant that has agreed to comply with this Section 8.12, (f) in connection
with the exercise of any remedy by any Bank pertaining to this Agreement, any of
the Notes or any other document or instrument delivered in connection herewith,
(g) in connection with any litigation involving any Bank pertaining to any Loan
Document or any other document or instrument delivered in connection herewith,
(h) to any Bank or the Agent, or (i) to any Affiliate of any Bank.
Notwithstanding anything herein to the contrary, the Borrower and its
representatives, the Co-Lead Arrangers, Agent and Banks, and their
representatives, may disclose to any and all persons, without limitation of any
kind, the United States tax treatment and tax structure of the Transaction and
all materials of any kind (including opinions or other tax analyses) that are
provided to the Borrower, the Co-Lead Arrangers, Agent or Banks, as the case may
be, relating to such United States tax treatment or tax structure.
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Section 8.12 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York. Without limiting the intent of the parties set forth above, (i) Chapter
346 of the Texas Finance Code (formerly known as Chapter 15, Subtitle 3, Title
79, of the Revised Civil Statutes of Texas, 1925), as amended (relating to
revolving loans and revolving triparty accounts), shall not apply to this
Agreement, the Notes or the transactions contemplated hereby, and (ii) to the
extent that any Bank may be subject to Texas law limiting the amount of interest
payable for its account, such Bank shall utilize the indicated (weekly) rate
ceiling from time to time in effect as provided in Chapter 303 of the Texas
Finance Code (formerly known as Article 5069-1.04 of the Revised Civil Statutes
of Texas), as amended.
[Remainder of page intentionally blank.]
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Section 8.13 Waiver of Jury Trial. Each of the Borrower, the Agent and
the Banks hereby irrevocably and unconditionally waives, to the fullest extent
it may effectively do so under applicable law, any and all right to trial by
jury in any action or proceeding arising out of or relating to this Agreement,
any of the Notes, any other Loan Document or any other instrument or document
furnished pursuant hereto or in connection herewith or the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
HALLIBURTON COMPANY
By: ____________________________________
Name:
Title:
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