EXHIBIT 4.9
THIRD AMENDMENT TO 364-DAY CREDIT AGREEMENT
THIS AMENDMENT (herein so called) is entered into as of April 24, 2003,
among FMC TECHNOLOGIES, INC., a Delaware corporation ("Borrower"), the Lenders
(as defined in the Credit Agreement) party to the Credit Agreement (hereinafter
defined) that continue as Lenders after giving effect to this Amendment, the
Persons that become Lenders pursuant to this Amendment and BANK OF AMERICA,
N.A., as Administrative Agent (as defined in the Credit Agreement) for the
Lenders.
Borrower, the Lenders and the Administrative Agent are party to the 364-Day
Credit Agreement dated as of April 26, 2001, as amended by that certain First
Amendment to 364-Day Credit Agreement dated as of May 30, 2001 and that certain
Second Amendment to 364-Day Credit Agreement dated as of April 25, 2002 (as
amended, the "Credit Agreement"), and have agreed, upon the following terms and
conditions, to further amend the Credit Agreement in certain respects.
Accordingly, for valuable and acknowledged consideration, Borrower, the Lenders
and the Administrative Agent agree as follows:
1. Terms and References. Unless otherwise stated in this Amendment, (a)
terms defined in the Credit Agreement have the same meanings when used in this
Amendment, and (b) references to "Sections," "Articles" and "Exhibits" are to
the Credit Agreement's sections, articles and exhibits.
2. Amendments. The Credit Agreement is amended as follows:
(a) Section 1.01 is amended to delete the definition of "Applicable
Rate" in its entirety and substitute the following definition in lieu
thereof:
"Applicable Rate means the following percentages per annum, based
upon the Debt Rating:
--------------------------------------------------------------------------------
Applicable Rate
--------------------------------------------------------------------------------
Debt Ratings
Pricing Level S&P/Xxxxx'x Facility Fee Eurodollar Rate Utilization Fee
--------------------------------------------------------------------------------
1 **BBB+/Baa1 .125% .500% .125%
--------------------------------------------------------------------------------
2 BBB/Baa2 .150% .725% .125%
--------------------------------------------------------------------------------
3 BBB-/Baa3 .175% .825% .125%
--------------------------------------------------------------------------------
4 *BB+/Ba1 .250% 1.000% .125%
--------------------------------------------------------------------------------
** means greater than or equal to
* means less than or equal to
Debt Rating means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt
Ratings") of the Borrower's non-credit-enhanced, senior unsecured
long-term debt; provided that if a Debt Rating is issued by each
of the foregoing rating agencies, then the higher of such Debt
Ratings shall apply (with Pricing Level 1 being the highest and
Pricing Level 4 being the lowest), unless there is a split in
Debt Ratings of more than one level, in which case the average
Debt Rating (or the higher of two intermediate Debt Ratings)
shall apply. If neither of the foregoing rating agencies issues a
Debt Rating, Pricing Level 4 shall apply.
Third Amendment to Credit Agreement - Page 1
Each change in the Applicable Rate resulting from a publicly
announced change in a Debt Rating shall be effective during the
period commencing on the date of the public announcement thereof
and ending on the date immediately preceding the effective date
of the next such change."
(b) Section 1.01 is further amended to delete the definition of
"Maturity Date" in its entirety and substitute the following definition in
lieu thereof:
"Maturity Date means (a) subject to extension pursuant to
Section 2.03, April 22, 2004 or (b) such earlier date upon which
the Commitments may be terminated in accordance with the terms
hereof; provided that, if the Loans are converted to a term loan
pursuant to Section 2.03(d), from and after such conversion,
"Maturity Date" shall mean the first anniversary of the date on
which such conversion occurs."
(c) Article V is amended to add the following new Section 5.12:
5.12 Tax Shelter Regulations. The Borrower does not intend
to treat the Loans and related transactions as being a
"reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention,
it will promptly notify the Administrative Agent thereof. If the
Borrower so notifies the Administrative Agent, the Borrower
acknowledges that one or more of the Lenders may treat its Loans
as part of a transaction that is subject to Treasury Regulation
Section 301.6112-1, and such Lender or Lenders, as applicable,
will maintain the lists and other records required by such
Treasury Regulation.
(d) Section 6.01 is amended by deleting Sections 6.01(i) and (j) and
substituting the following Sections 6.01(i), (j), and (k) in lieu thereof:
(i) as soon as practicable after a Principal Officer of the
Borrower obtains knowledge of the commencement of an action, suit
or proceeding against the Borrower or any Subsidiary before any
court or arbitrator or any governmental body, agency or official
in which there is a reasonable likelihood of an adverse decision
which would have a Material Adverse Effect or which in any manner
questions the validity or enforceability of this Agreement or any
of the transactions contemplated hereby, information as to the
nature of such pending or threatened action, suit or proceeding;
(j) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat
the Loans and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4), a duly completed copy of IRS Form 8886 or any
successor form; and
Third Amendment to Credit Agreement - Page 2
(k) from time to time such additional information regarding
the business, properties, financial position, results of
operations, or prospects of the Borrower or any Subsidiary as the
Administrative Agent, at the request of any Lender, may
reasonably request.
(e) Section 10.08 is amended to add the following sentence at the end
thereof:
Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative Agent and
each Lender may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Administrative Agent or
such Lender relating to such tax treatment and tax structure
other than information or materials for which nondisclosure is
reasonably necessary in order to comply with applicable
securities laws; provided that with respect to any document or
similar item that in either case contains information concerning
the tax treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such
portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans and transactions
contemplated hereby.
(f) Schedule 2.01 is entirely amended in the form of, and all
references in the Credit Agreement to Schedule 2.01 are changed to, Amended
Schedule 2.01 attached hereto. Each Person named on Amended Schedule 2.01
that was not a party to the Credit Agreement prior to this Amendment hereby
becomes a Lender and agrees to perform and be bound by the terms and
provisions of the Credit Agreement, as amended hereby, and the other Loan
Documents that are applicable to a Lender.
3. Conditions Precedent to Effectiveness. This Amendment shall not be
effective until the Administrative Agent receives (a) counterparts of this
Amendment executed by Borrower, the Lenders and the Administrative Agent, (b)
such evidence as the Administrative Agent may reasonably request to verify that
Borrower is duly incorporated, validly existing and in good standing in its
jurisdiction of incorporation, (c) a certificate signed by a Principal Officer
of Borrower (i) certifying that there has been no event or circumstance since
December 31, 2002, which has had or could reasonably be expected to have a
Material Adverse Effect, (ii) showing the Debt Ratings of Borrower on the date
hereof, and (iii) stating that no amendments have been made to the certificate
of incorporation or bylaws of Borrower since April 30, 2001 or, if any such
amendments have been made, attaching true and correct copies of the certificate
of incorporation or bylaws of Borrower, as so amended, (d) a certificate signed
by a Principal Officer of Borrower certifying as to the incumbency of the
Principal Officer of Borrower executing this Amendment, and attaching true and
correct copies of resolutions adopted by the Board of Directors of Borrower
authorizing Borrower to enter into this Amendment and verifying the authority
and capacity of such Principal Officer to execute this Amendment, (e) an opinion
of Xxxxx Xxxxxx, Associate General Counsel and Assistant Secretary of Borrower,
substantially in the form of Exhibit A attached hereto, (f) an opinion of Mayer,
Brown, Xxxx & Maw, special New York counsel to Borrower, substantially in the
form of Exhibit B attached hereto, (g) upon request of any Lender made through
the Administrative Agent, a Note executed by Borrower and payable to such Lender
in a principal amount equal to such Lender's Commitment (after giving effect to
this Amendment), which Note shall be in substitution and replacement of any Note
previously executed by Borrower and payable to such Lender pursuant to the
Third Amendment to Credit Agreement - Page 3
Credit Agreement, and (h) such other documents, instruments and certificates as
the Administrative Agent may reasonably request.
4. Representations. Borrower represents and warrants to the Lenders that as
of the date of this Amendment, (a) the representations and warranties contained
in Article V are true and correct in all material respects except to the extent
that such representations and warranties refer to an earlier date, in which case
they were true and correct in all material respects as of such earlier date, and
(b) no Default or Event of Default has occurred and is continuing.
5. Effect of Amendment. This Amendment is a Loan Document. Except as
expressly modified and amended by this Amendment, all of the terms, provisions
and conditions of the Loan Documents shall remain unchanged and in full force
and effect. The Loan Documents and any and all other documents heretofore, now
or hereafter executed and delivered pursuant to the terms of the Credit
Agreement are hereby amended so that any reference to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
Third Amendment to Credit Agreement - Page 4
EXECUTED as of the date first stated above.
FMC TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director, Treasury Operations
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Agency Management Officer
BANK OF AMERICA, N.A., as a Lender
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. XxXxxx
------------------------------------
Name: Xxxxxx X. XxXxxx
Title: Managing Director
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
WESTLB AG (formerly known as
Westdeutsche Landesbank Girozentrale),
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
Credit Department
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
DANSKE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxx
------------------------------------
Name: Xxxx X. X'Xxxxx
Title: Assistant General Manager
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
WACHOVIA BANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
COOPERATIVE CENTRALE RAIFFEINSEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
DEN NORSKE BANK ASA, as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
MIZUHO CORPORATE BANK LTD., as a Lender
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxx X'Xxxxxx
------------------------------------
Name: Xxxx X'Xxxxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Second Vice President
The Northern Trust Company
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
BANCA NAZIONALE DEL LAVORA SPA,
as a Lender New York Branch
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxxx Xxxxxxxxx
First Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
EXECUTED as of the date first stated above.
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ R. Xxxxxxx Xxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxx
Title: Vice President
Signature Page to Third Amendment to FMC Technologies 364-Day Credit Agreement
AMENDED SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
-------------------------------------------------------------------------------
Lender Commitment Pro Rata Share
-------------------------------------------------------------------------------
Bank of America, N.A. $ 15,000,000 10.000000000%
-------------------------------------------------------------------------------
The Royal Bank of Scotland plc $ 16,250,000 10.833333333%
-------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, New York
Branch $ 16,250,000 10.833333333%
-------------------------------------------------------------------------------
Danske Bank $ 12,500,000 8.333333333%
-------------------------------------------------------------------------------
Wachovia Bank, N.A. $ 12,500,000 8.333333333%
-------------------------------------------------------------------------------
Xxxxx Fargo Bank Texas, National Association $ 12,500,000 8.333333333%
-------------------------------------------------------------------------------
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland" New York Branch $ 11,875,000 7.916666667%
-------------------------------------------------------------------------------
Den norske Bank ASA $ 10,750,000 7.166666667%
-------------------------------------------------------------------------------
Mizuho Corporate Bank Ltd. $ 10,000,000 6.666666667%
-------------------------------------------------------------------------------
National City Bank $ 9,687,500 6.458333333%
-------------------------------------------------------------------------------
The Bank of New York $ 7,500,000 5.000000000%
-------------------------------------------------------------------------------
The Northern Trust Company $ 6,750,000 4.500000000%
-------------------------------------------------------------------------------
Banca Nazionale del Lavoro Spa $ 4,687,500 3.125000000%
-------------------------------------------------------------------------------
U.S. Bank National Association $ 3,750,000 2.500000000%
-------------------------------------------------------------------------------
Total $150,000,000 100.000000000%
-------------------------------------------------------------------------------
1 Schedule 2.01
EXHIBIT A
FORM OF OPINION OF XXXXX XXXXXX
, 2003
----------
To Bank of America, N.A., as Administrative Agent,
and each of the Lenders party to
the Credit Agreement referred to below
Re: FMC Technologies, Inc.
Ladies and Gentlemen:
I am the Associate General Counsel and Assistant Secretary of, and have
acted as counsel to, FMC Technologies, Inc. (the "Borrower") in connection with
the preparation, execution and delivery of, and the consummation of the
transactions contemplated by, the 364-Day Credit Agreement dated as of April 26,
2001, as amended by the First Amendment to 364-Day Credit Agreement dated as of
May 30, 2001, the Second Amendment to 364-Day Credit Agreement dated as of April
25, 2002, and the Third Amendment to 364-Day Credit Agreement dated as of April
24, 2003 (the "Third Amendment") (such Credit Agreement, as so amended, the
"Credit Agreement"), by and among the Borrower, the Lenders party thereto, and
Bank of America, N.A., as agent for the Lenders (the "Administrative Agent").
This opinion is rendered to you pursuant to Section 4(b) of the Third
Amendment. Capitalized terms defined in the Credit Agreement, used herein, and
not otherwise defined herein, shall have the meanings given them in the Credit
Agreement.
In so acting, I have examined originals or copies (certified or otherwise
identified to my satisfaction) of the following documents:
1. the Credit Agreement; and
2. the Third Amendment.
The agreements specified in clauses (1) and (2) are collectively referred
to as the "Agreements."
In addition, I have examined such corporate records, agreements, documents
and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of each of the Borrower, and have
made such inquiries of such officers and representatives, as I have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to the opinions
A-1 Exhibit A
set forth herein that have not been independently established, I have relied
upon certificates or comparable documents of officers and representatives of the
Borrower and upon the representations and warranties of the Borrower contained
in the Agreements.
I am licensed to practice law in the State of Illinois, and this opinion is
limited to the laws of the State of Illinois, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America.
Based on the foregoing, and subject to the qualifications stated herein, I
am of the opinion that:
1. The Borrower is a corporation validly existing and in good standing under
the law of the State of Delaware and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. The Borrower is duly qualified to transact business and is in good standing
as a foreign corporation in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect.
3. The Borrower has all requisite corporate power and authority to execute,
deliver and perform the Agreements. The execution, delivery and performance
by the Borrower of the Agreements have been duly authorized by all
necessary corporate action on the part of the Borrower. The Borrower has
duly executed and delivered the Agreements. An Illinois state court or a
federal court sitting in the State of Illinois in a diversity action
should, under conflicts of law principles observed by the courts of the
State of Illinois, if properly presented with the issue, give effect to
those provisions of the Agreements providing that the Agreements are to be
governed by and construed in accordance with the law of the State of New
York insofar as such provisions relate to the substantive laws of the State
of New York and to the validity, nature, interpretation and effect of the
Agreements, except (i) to the extent, if any, that federal law applies,
(ii) to the extent procedural (as opposed to substantive) laws are
involved, or (iii) to the extent that the applicable laws of New York
violate a public policy of the State of Illinois.
4. The execution, delivery and performance by the Borrower of the Agreements
will not conflict with, constitute a default under or violate (i) any of
the terms, conditions or provisions of the Certificate of Incorporation or
By-laws of the Borrower, (ii) any of the terms, conditions or provisions of
any material contractual obligation of the Borrower of which I am aware,
(iii) any Illinois, Delaware corporate or federal requirement of law or
(iv) any judgment, writ, injunction, decree, order or ruling of any court
or governmental authority of which I am aware which is binding on the
Borrower.
5. No consent, approval, waiver, license or authorization or other action by
or filing with any Illinois, Delaware corporate or federal Governmental
Authority of which I am aware is required in connection with the execution,
delivery or performance by the Borrower of the Agreements.
A-2 Exhibit A
6. The borrowings by and other financial accommodations provided to the
Borrower under the Agreements and the application of proceeds thereof as
provided in the Credit Agreement will not violate Regulation U or X of the
Board.
7. The Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company" or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
8. To my knowledge, there is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity or before any
governmental authority, pending or overtly threatened against the Borrower
(i) with respect to any Agreement or challenging any of the Lenders' or the
Administrative Agent's rights or remedies thereunder or (ii) which is
reasonably likely to be adversely determined and, if so determined, would
be reasonably likely to materially adversely affect the ability of the
Borrower to perform its obligations under the Agreements.
My opinion in Paragraph 4(iii) is based upon my review of those
requirements of law which in my experience are normally applicable to or
normally relevant in connection with transactions of the type provided for in
the Agreements. For purposes of my opinion in the last sentence of Paragraph 3,
I have assumed that New York law bears a reasonable relationship to the
transactions contemplated by the Agreements.
The opinions expressed herein are effective only as of the date of this
opinion letter. I do not assume responsibility for updating this opinion letter
as of any date subsequent to the date of this opinion letter, and I assume no
responsibility for advising you of (i) any change with respect to any matter
described in this opinion letter or (ii) the discovery subsequent to the date of
this opinion letter of factual information not previously known to me pertaining
to events occurring prior to the date of this opinion letter.
This opinion letter is rendered solely to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other Person (other than your
successors and permitted assigns under the Credit Agreement) for any purpose,
without in each case my prior written consent.
Very truly yours,
----------------------
A-3 Exhibit A
EXHIBIT B
FORM OF OPINION OF MAYER, BROWN, XXXX & MAW
, 2003
-------------
Bank of America, N.A.
and each of the other financial
institutions that is a party to the
Credit Agreement referred to below
c/o Bank of America, N.A., as Administrative Agent
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We have acted as special New York counsel for FMC Technologies, Inc., a
Delaware corporation (the "Borrower"), in connection with the 364-Day Credit
Agreement dated as of April 26, 2001, as amended by the First Amendment to
364-Day Credit Agreement dated as of May 30, 2001, the Second Amendment to
364-Day Credit Agreement dated as of April 25, 2002, and the Third Amendment to
364-Day Credit Agreement dated as of April 24, 2003 (the "Third Amendment")
(such Credit Agreement, as so amended, the "Credit Agreement") among the
Borrower, various financial institutions and Bank of America, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are used herein as
therein defined. This opinion letter is being rendered to you at the request of
our clients pursuant to the requirements of the Third Amendment.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Credit Agreement, (ii) the Third Amendment, and
(iii) such documents, corporate records, certificates of public officials and of
officers and representatives of the Borrower and other instruments, and have
conducted such other investigations of fact and law, as we have deemed necessary
or advisable for purposes of this opinion letter. Except as described in the
foregoing sentence, we have not undertaken any independent investigation of any
factual matters which might be relevant to this opinion letter and we have made
no independent investigation of the records of, or other matters relating to,
the Borrower or any other Person.
For the purposes of this opinion letter, we have assumed that all items
submitted to us as originals are complete and authentic and all signatures
thereon are genuine, and all items submitted to us as copies are complete and
conform to the originals. We have also assumed, with your permission and without
independent investigation of any kind, the following: (i) the Borrower has been
duly incorporated and is validly existing and is in good standing under the laws
of the State of Delaware; (ii) the Borrower has the corporate power and
authority to execute, deliver and perform its obligations under the Third
Amendment and the Credit Agreement; (iii) the Borrower has the corporate power
and authority to execute, deliver and perform its obligations under the Third
Amendment and the Credit Agreement; (iv) the Borrower has taken all corporate
action required to duly authorize the execution, delivery and performance by it
of the Third Amendment and the Credit Agreement; (v) the Third Amendment and the
Credit Agreement have
B-1
been duly authorized, executed and delivered by the Borrower, (vi) the Third
Amendment and the Credit Agreement are the legal, valid and binding obligations
of each party thereto (other than the Borrower) enforceable against each such
party in accordance with its terms; (vii) the execution, delivery and
performance of the Third Amendment and the Credit Agreement by the Borrower (a)
are in accordance with (and do not conflict with) the laws of the State of
Delaware, (b) do not violate or contravene the organizational documents or
by-laws of the Borrower, and (c) do not violate or contravene any provision of
any agreement or contract applicable to or binding upon the Borrower; and (viii)
there are no agreements or understandings among the parties, written or oral,
and no usage of trade or course of prior dealing among the parties which would,
in either case, define, supplement or qualify the terms of the Third Amendment
or Credit Agreement.
Upon the basis of the foregoing and the other assumptions and
qualifications set forth herein, we are of the opinion that:
1. The Credit Agreement constitutes a valid and binding agreement of the
Borrower, enforceable in accordance with its terms.
2. The Third Amendment constitutes a valid and binding agreement of the
Borrower, enforceable in accordance with its terms.
Our opinions set forth above are subject to the following qualifications:
(a) We express no opinion as to any law, rule, regulation, ordinance, code
or similar provision of law of any county, municipality, or similar
political subdivision of the State of New York or any agency or
instrumentality thereof, and we express no opinion as to any law to
which the Borrower may be subject solely as a result of your legal or
regulatory status or as to any insurance law or any federal or state
securities or "blue sky" law. Members of our Firm are admitted to
practice law in the State of New York and we express no opinion on any
law other than the laws of the State of New York and the Federal law
of the United States to the extent specifically set forth herein.
(b) Our opinions are subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally and to the effect
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing
and by limitations on the availability of specific performance,
injunctive relief or other equitable remedies.
(c) We express no opinion as to:
(i) obligations relating to indemnification, contribution or
exculpation of costs, expenses or liabilities which contravene public
policy;
B-2
(ii) the enforceability, under certain circumstances, of
provisions imposing penalties or forfeitures, late payment charges or
an increase in interest rate upon delinquency in payment or the
occurrence of a default;
(iii) any agreement by the Borrower to the subject matter
jurisdiction of a United States federal court, to the waiver of the
right to jury trial or to be served with process by service upon a
designated third party;
(iv) any agreement by the Borrower purporting to waive any
objection to the laying of venue or any claim that an action or
proceeding has been brought in an inconvenient forum;
(v) the effect of the law of any jurisdiction other than the
State of New York wherein any Lender may be located or wherein the
enforcement of the Third Amendment or the Credit Agreement may be
sought that limits the rates of interest, fees or other charges
legally chargeable or collectible;
(vi) any provision of the Third Amendment or the Credit Agreement
(A) restricting access to legal or equitable remedies, (B) relating to
severability or similar clauses, (C) providing that the Third
Amendment or the Credit Agreement may only be amended, modified or
waived in writing, (D) stating that all rights or remedies of any
party are cumulative and may be enforced in addition to any other
right or remedy and that the election of a particular remedy does not
preclude recourse to one or more remedies, (E) purporting to establish
an evidentiary standard for determinations by the Lenders or the
Administrative Agent or (F) purporting to convey rights to Persons
other than parties to the Third Amendment or the Credit Agreement;
(vii) whether any court outside the State of New York would honor
the choice of New York law as the governing law of the Third Amendment
and the Credit Agreement; or
(viii) Section 10.09 of the Credit Agreement.
The opinions expressed herein are effective only as to the date of this
opinion letter. We do not assume responsibility for updating this opinion letter
as of any date subsequent to the date of this opinion letter, and we assume no
responsibility for advising you of (i) any changes with respect to any matters
described in this opinion letter or (ii) the discovery subsequent to the date of
this opinion letter of factual information not previously known to us pertaining
to the events occurring prior to the date of this opinion letter.
This opinion letter is rendered solely to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other Person (other than your
successors and permitted assigns under the Credit Agreement) for any purpose,
without in each case our prior written consent.
Very truly yours,
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