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EXHIBIT 4(4)
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF
JANUARY 23, 2001
AMONG
AMERADA XXXX CORPORATION,
THE LENDERS PARTY HERETO,
AND
XXXXXXX SACHS CREDIT PARTNERS L.P.,
AS JOINT BOOK RUNNER, JOINT LEAD ARRANGER AND SOLE SYNDICATION AGENT
CHASE SECURITIES INC.,
AS JOINT BOOK RUNNER AND JOINT LEAD ARRANGER
BANK OF AMERICA, N.A.,
AS CO-DOCUMENTATION AGENT AND ARRANGER
CITIBANK, N.A.,
AS CO-DOCUMENTATION AGENT AND ARRANGER
BARCLAYS BANK PLC,
AS CO-DOCUMENTATION AGENT AND ARRANGER
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
$1,500,000,000 REVOLVING CREDIT FACILITY
"FACILITY A"
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS............................................................................2
SECTION 1.01. Defined Terms..................................................2
SECTION 1.02. Classification of Loans and Borrowings........................17
SECTION 1.03. Terms Generally...............................................18
SECTION 1.04. Accounting Terms; GAAP........................................18
ARTICLE II
THE CREDITS...........................................................................18
SECTION 2.01. Commitments...................................................18
SECTION 2.02. Loans and Borrowings..........................................19
SECTION 2.03. Requests for Revolving Borrowings.............................19
SECTION 2.04 Bid Procedure for Competitive Loans...........................20
SECTION 2.05. Funding of Borrowings.........................................22
SECTION 2.06. Interest Elections............................................23
SECTION 2.07. Termination and Reduction of Commitments......................24
SECTION 2.08. Repayment of Loans; Evidence of Debt..........................25
SECTION 2.09. Prepayment of Loans...........................................26
SECTION 2.10. Fees..........................................................26
SECTION 2.11. Interest......................................................27
SECTION 2.12. Alternate Rate of Interest....................................28
SECTION 2.13. Increased Costs...............................................29
SECTION 2.14. Break Funding Payments........................................30
SECTION 2.15. Taxes.........................................................30
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...31
SECTION 2.17. Mitigation Obligations; Replacement of Lenders................33
SECTION 2.18. Extension of Initial Maturity Date...........................34
ARTICLE III
REPRESENTATIONS AND WARRANTIES........................................................34
SECTION 3.01. Corporate Existence and Power; Compliance with Law............34
SECTION 3.02. Corporate Authority...........................................34
SECTION 3.03. Enforceability................................................35
SECTION 3.04. Financial Condition...........................................35
SECTION 3.05. Litigation....................................................35
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SECTION 3.06. ERISA.........................................................35
SECTION 3.07. Environmental Matters.........................................35
SECTION 3.08. Federal Regulations...........................................36
SECTION 3.09. Investment and Holding Company Status.........................36
SECTION 3.10. Scheduled Debt................................................36
ARTICLE IV
CONDITIONS............................................................................36
SECTION 4.01. Conditions to Third Amended and Restated Effective Date.......36
SECTION 4.02. Conditions to Each Borrowing................................38
ARTICLE V
AFFIRMATIVE COVENANTS.................................................................38
SECTION 5.01. Financial Statements and Other Information....................38
SECTION 5.02. Notices of Material Events....................................39
SECTION 5.03. Existence; Conduct of Business................................40
SECTION 5.04. Compliance with Contractual Obligations.......................40
SECTION 5.05. Insurance.....................................................40
SECTION 5.06. Compliance with Laws..........................................40
SECTION 5.07. Use of Proceeds...............................................41
ARTICLE VI
NEGATIVE COVENANTS....................................................................41
SECTION 6.01. Financial Covenant............................................41
SECTION 6.02. Liens.........................................................41
SECTION 6.03. Fundamental Changes...........................................42
SECTION 6.04. Restrictive Agreements.......................................43
SECTION 6.05. Future Subsidiary Guaranties..................................43
ARTICLE VII
EVENTS OF DEFAULT.....................................................................43
ARTICLE VIII
THE ADMINISTRATIVE AGENT..............................................................46
ARTICLE IX
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MISCELLANEOUS.........................................................................48
SECTION 9.01. Notices.......................................................48
SECTION 9.02. Waivers: Amendments...........................................48
SECTION 9.03. Expenses; Indemnity: Damage Waiver............................49
SECTION 9.04. Successors and Assigns........................................50
SECTION 9.05. Survival......................................................53
SECTION 9.06. Counterparts: Integration: Effectiveness......................53
SECTION 9.07. Severability..................................................53
SECTION 9.08. Right of Setoff...............................................54
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process;
Process Agent; Waiver of Immunity.............................54
SECTION 9.10. Waiver of Jury Trial..........................................55
SECTION 9.11. Headings......................................................55
SECTION 9.12. Confidentiality...............................................55
SECTION 9.13. Third Amendment & Restatement.................................56
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SCHEDULES:
Schedule 2.01 Commitments
Schedule 3.10 Scheduled Debt
Schedule 6.02 Existing Liens
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Notes
Exhibit C Form of Opinion of Counsel to the Company
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
January 23, 2001 (the "Agreement"), among AMERADA XXXX CORPORATION, a Delaware
corporation (the "Company"), the LENDERS party hereto (the "Lenders"), XXXXXXX
SACHS CREDIT PARTNERS L.P. ("GSCP"), as Joint Book Runner, Joint Lead Arranger
and Sole Syndication Agent, (in such capacity, the "Syndication Agent"), CHASE
SECURITIES INC. ("CSI"), as Joint Book Runner and Joint Lead Arranger, BANK OF
AMERICA, N.A. ("Bank of America"), as Co-Documentation Agent and Arranger,
CITIBANK, N.A. ("Citibank"), as Co-Documentation Agent and Arranger, BARCLAYS
BANK PLC ("Barclays"), as Co-Documentation Agent and Arranger (together with
Bank of America and Citibank, the "Documentation Agents") and THE CHASE
MANHATTAN BANK ("Chase"), as Administrative Agent (in such capacity the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company made an offer (the "Offer") to acquire
the whole of the ordinary share capital of LASMO Plc (the "Target") on
November 6, 2000;
WHEREAS, the Company, GSCP as Joint Book Runner, Joint Lead
Arranger and sole Syndication Agent, CSI as Joint Book Runner and Joint Lead
Arranger, Bank of America as Co-Documentation Agent and Arranger, Citibank as
Co-Documentation Agent and Arranger, Barclays as Co-Documentation Agent and
Arranger and Chase as Administrative Agent, entered into a Second Amended and
Restated Credit Agreement dated as of November 29, 2000 (the "Second Amended
and Restated Facility A Credit Agreement");
WHEREAS, the Company entered into a Credit Agreement, dated
as of November 6, 2000 with the lenders and agents party thereto (the "Initial
Facility A Credit Agreement"), as amended by the Amended and Restated Credit
Agreement, dated as of November 14, 2000 with the lenders and agents party
thereto (the "First Amended and Restated Facility A Credit Agreement" and
together with the Initial Facility A Credit Agreement and the Second Amended
and Restated Facility A Credit Agreement, the "Prior Credit Agreements"). The
Prior Credit Agreements were entered into to provide liquidity support for the
Company's commercial paper program and/or for financing for the cash purchase
price of the Offer and otherwise for general corporate purposes;
WHEREAS, the Offer made by the Company to acquire the Target
has lapsed, and the Company no longer intends or has any obligation to acquire
the Target or any securities thereof;
WHEREAS, the Company has requested that GSCP, CSI, Bank of
America, Citibank, Barclays and Chase amend and restate the Second Amended and
Restated Facility A Credit Agreement to (i) acknowledge that the Offer has
lapsed, and therefore, change the use of proceeds of the Loans to solely
provide for liquidity support for the Company's commercial
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paper program and otherwise for general corporate purposes and (ii) to add the
Lenders as parties to this Agreement;
WHEREAS, the Lenders are willing to establish such credit
facilities on and subject to the terms and conditions hereinafter set forth;
and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree to amend and
restate the Second Amended and Restated Facility A Credit Agreement in its
entirety as follows:
ARTICLE I
Definitions
SECTION I.1. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
means that such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Accommodation Guaranty Indebtedness" shall have the meaning
ascribed to it in Article VII(e).
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning ascribed to it in the
Preamble.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"Agents" means the Syndication Agent, the Administrative
Agent and the Documentation Agents.
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"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
Base CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Percentage" means, with respect to any Lender,
the percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Applicable Facility Fee Rate" means, for any day, with
respect to Facility Fees payable hereunder, the applicable rate per annum set
forth below based upon reference to the Public Debt Rating as set forth below:
============================================
Public Debt Rating Applicable Facility
S&P/Xxxxx'x Fee Rate
----------- --------
--------------------------------------------
Level I 0.075%
-------
> A- or A3
-
--------------------------------------------
Level II 0.100%
--------
BBB+ or Baa1
--------------------------------------------
Level III 0.125%
---------
BBB or Baa2
--------------------------------------------
Level IV 0.175%
--------
BBB- or Baa3
--------------------------------------------
Level V 0.350%
-------
< BBB- or Baa3
============================================
"Applicable Margin" means, for any day, with respect to any
Eurodollar Revolving Loan, the applicable rate per annum set forth below under
the caption "Eurodollar Spread" based upon reference to the Public Debt Rating
as set forth below:
=========================================
Public Debt Rating
S&P/Xxxxx'x Eurodollar Spread
----------- -----------------
-----------------------------------------
Level I 0.425%
-------
> A- or A3
-
-----------------------------------------
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=========================================
Public Debt Rating
S&P/Xxxxx'x Eurodollar Spread
----------- -----------------
-----------------------------------------
Level II 0.525%
--------
BBB+ or Baa1
-----------------------------------------
Level III 0.750%
---------
BBB or Baa2
-----------------------------------------
Level IV 0.825%
--------
BBB- or Baa3
-----------------------------------------
Level V 1.150%
-------
< BBB- or Baa3
=========================================
"Applicable Utilization Fee Rate" means, for any day, with
respect to Utilization Fees payable hereunder, the applicable rate per annum
set forth below based upon reference to the Public Debt Rating as set forth
below:
================================================
Public Debt Rating Applicable Utilization
S&P/Xxxxx'x Fee Rate
----------- --------
------------------------------------------------
Level I 0.050%
-------
> A- or A3
-
------------------------------------------------
Level II 0.075%
--------
BBB+ or Baa1
------------------------------------------------
Level III 0.125%
---------
BBB or Baa2
------------------------------------------------
Level IV 0.125%
--------
BBB- or Baa3
------------------------------------------------
Level V 0.250%
< BBB- or Baa3
================================================
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or
a comparable successor risk classification) within the meaning of 12 C.F.R.
Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in dollars
at the offices of such member in the United States; provided that if, as a
result of any change in any law, rule or
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regulation, it is no longer possible to determine the Assessment Rate as
aforesaid, then the Assessment Rate shall be such annual rate as shall be
determined by the Administrative Agent to be representative of the cost of
such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
"Availability Period" means the period from and including
the Third Amended and Restated Effective Date to but excluding the earlier of
the Initial Maturity Date and the date of termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowing" means (a) Revolving Loans of the same Type,
made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect or (b) a Competitive
Loan or group of Competitive Loans of the same Type made on the same date and
as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Company for
Revolving Loans in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that the term "Business Day" shall
also exclude when used in connection with a Eurodollar Loan, any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease" means, with respect to any Person which is
the lessee thereunder, any lease or charter of property, real or personal,
which would, in accordance with GAAP, be recorded as an asset under a capital
lease on a balance sheet of such Person.
"Capitalized Lease Obligation" means, with respect to any
Person on any date, the amount which would, in accordance with GAAP, be
recorded as an obligation under a Capital Lease on a balance sheet of such
Person as lessee under such Capital Lease as at such date. For all purposes of
this Agreement, Capitalized Lease Obligations shall be deemed to be Debt
secured by a Lien.
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"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender (or, for purposes of Section 2.13(b), by any lending office of such
Lender or by such Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans, as such commitment may be
(a) reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is
set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable.
"Company" has the meaning ascribed to it in the Preamble.
"Company Capitalization Ratio" means, on any date, the
ratio, expressed as a percentage, of (i) Total Consolidated Debt of the
Company and its Consolidated Subsidiaries on such date to (ii) Total
Capitalization of the Company and its Consolidated Subsidiaries on such date.
"Competitive", when used in reference to any Loan or
Borrowing, means that such Loan, or the Loans comprising such Borrowing, are
being made in accordance with Section 2.04.
"Competitive Bid" means an offer by a Competitive Loan
Lender to make a Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable, offered by the
Competitive Loan Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Company for
Competitive Bids in accordance with Section 2.04.
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"Competitive Loan Lenders" means Lenders from time to time
designated as Competitive Loan Lenders by the Company by written notice to the
Administrative Agent (which notice the Administrative Agent shall transmit to
each such Competitive Lender).
"Consolidated Current Liabilities" means, with respect to
any Person on any date, all amounts which, in conformity with GAAP, would be
classified as current liabilities on a consolidated balance sheet of such
Person and its Consolidated Subsidiaries as at such date.
"Consolidated Intangibles" means, with respect to any Person
on any date, all assets of such Person and its Consolidated Subsidiaries,
determined on a consolidated basis, that would, in conformity with GAAP, be
classified as intangible assets on a consolidated balance sheet of such Person
and its Consolidated Subsidiaries as at such date, including, without
limitation, unamortized debt discount and expense, unamortized organization
and reorganization expense, costs in excess of the fair market value of
acquired companies, patents, trade or service marks, franchises, trade names,
goodwill and the amount of all write-ups in the book value of assets resulting
from any revaluation thereof (other than revaluations arising out of foreign
currency valuations in conformity with GAAP).
"Consolidated Net Tangible Assets" means, with respect to
any Person on any date, the amount equal to (a) the amount that would, in
conformity with GAAP, be included as assets on the consolidated balance sheet
of such Person and its Consolidated Subsidiaries as at such date minus (b) the
sum of (i) Consolidated Intangibles of such Person at such date and (ii)
Consolidated Current Liabilities of such Person at such date.
"Consolidated Subsidiaries" means, with respect to any
Person on any date, all Subsidiaries and other entities whose accounts are
consolidated with the accounts of such Person as of such date in accordance
with the principles of consolidation reflected in the audited financial
statements of such Person as of such date delivered in accordance with Section
5.01.
"Continuing Directors" has the meaning ascribed to it in
Article VII.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Debt" means with respect to any Person (i) indebtedness for
borrowed money (including, without limitation, indebtedness evidenced by debt
securities); (ii) obligations to pay the deferred purchase price of property
or services, except trade accounts payable in the ordinary
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course of business; (iii) Capitalized Lease Obligations, in the case of each
of the foregoing clauses (i) through (iii), for which such Person or any of
its Consolidated Subsidiaries shall be liable as primary obligor or under any
Guaranty of any such indebtedness or other such obligations of an entity not
included in such Person's consolidated financial statements and (iv) any such
indebtedness or other such obligations of any entity not included in such
Person's consolidated financial statements secured in any manner by any Lien
upon any assets of such Person or any of its Consolidated Subsidiaries;
provided that for purposes of the computation of any Debt under this Agreement
there shall be no duplication of any item of primary or other indebtedness or
other obligation referred to herein above, whether such item reflects the
indebtedness or other obligation of such Person or any of its Consolidated
Subsidiaries or of any entity not included in such Person's consolidated
financial statements; and provided, further, that when computing Debt of the
Company under this Agreement the first $100,000,000 in the aggregate for which
the Company and its Consolidated Subsidiaries shall be liable under any
Guaranty of any such indebtedness or other such obligations of an entity not
included in the Company's consolidated financial statements shall be excluded
from the computation of Debt of the Company.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Documentation Agents" shall have the meaning ascribed to it
in the Preamble.
"dollars" or "$" refers to lawful money of the United States
of America.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or the release of
any materials into the environment.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any of its
Consolidated Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
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"Eurodollar", when used in reference to any Loan or
Borrowing, means that such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Company hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Company is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Company under Section 2.17(b)) or any foreign branch or Affiliate of a
Lender caused by such Lender to make a Loan under Section 2.02(b), any
withholding tax that is imposed by the United States of America on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or such foreign branch or Affiliate is caused to make such a
Loan or is attributable to such Foreign Lender's or such foreign branch's or
Affiliate's failure or inability to comply with Section 2.15(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time
of assignment, to receive additional amounts from the Company with respect to
such withholding tax pursuant to Section 2.15(a).
"Existing Credit Agreement" means the Credit Agreement,
dated as of May 20, 1997, among the Company, Amerada Xxxx Limited, Amerada
Xxxx Norge A/S, Amerada Xxxx A/S, the other subsidiary borrowers and lenders
party thereto, and The Chase Manhattan Bank, as administrative agent
thereunder.
"Facility B Credit Agreement" means the $1,500,000,000 Third
Amended and Restated Revolving Credit Facility, dated as of the date hereof,
among the Company, the lenders party thereto, Xxxxxxx Xxxxx Credit Partners
L.P., as joint book runner, joint lead arranger and sole syndication agent,
Chase Securities Inc., as joint book runner and joint lead arranger, Bank of
America, N.A., as co-documentation agent and arranger, Citibank, N.A., as
co-documentation agent and arranger, Barclays Bank PLC, as co-documentation
agent and arranger and The Chase Manhattan Bank, as administrative agent.
"Facility Fee" has meaning ascribed to it in Section
2.10(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if
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necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means, with respect to the Company, the
chief financial officer, principal accounting officer, treasurer or controller
of the Company.
"First Amended and Restated Facility A Credit Agreement" has
the meaning ascribed to it in the Preamble.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest
at a Fixed Rate.
"Foreign Lender" means any Lender that is organized under
the laws of a jurisdiction other than that in which the Company is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means for all purposes hereof generally accepted
accounting principles in the United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guaranty" by any Person means any direct or indirect
undertaking to assume, guaranty, endorse, contingently agree to purchase or to
provide funds for the payment of, or otherwise become liable in respect of,
any obligation of any other Person, excluding endorsements for collection or
deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
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"Indemnitee" shall have the meaning ascribed to it in
Section 9.03.
"Information" shall have the meaning ascribed to it in
Section 9.12.
"Initial Facility A Credit Agreement" has the meaning
ascribed to it in the Preamble.
"Interest Election Request" means a request by the Company
to convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b)with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each
day during such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period, and (c) with respect to
any Fixed Rate Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is 7 days (if
generally available), one, two, three or six months thereafter, as the Company
may elect and (b) with respect to any Fixed Rate Borrowing, the period (which
shall not be less than 7 days or more than 360 days) commencing on the date of
such Borrowing and ending on the date specified in the applicable Competitive
Bid Request; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
(ii) any Interest Period pertaining to a Eurodollar Borrowing that commences
on the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period and (iii) except with respect to any Competitive Loan Lender
which otherwise agrees, any Interest Period that otherwise would extend beyond
the Maturity Date applicable to any Lender shall end on the Maturity Date
applicable to such Lender. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case
of a Revolving Borrowing, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
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"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in dollars with a
term comparable to such Interest Period that appears on the Telerate Page at
approximately 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period; provided, however, that if at any time for
any reason such offered rate does not appear on the Telerate Page, "LIBO Rate"
shall mean, with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, the rate per annum equal to the average (rounded upward to
the nearest 1/100 of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Bank as the rate at which such
Reference Lender is offered deposits in dollars at or about 11:00 a.m., London
time, two Business Days prior to the beginning of such Interest Period in the
London interbank market for delivery on the first day of such Interest Period
for the number of days comprised therein.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any
of the foregoing), any conditional sale or other title retention agreement, or
any lease in the nature thereof.
"Loan Documents" means, collectively, this Agreement and all
other agreements, instruments and documents executed in connection wherewith
and therewith, in each case as the same may be amended, restated, modified or
otherwise supplemented from time to time.
"Loans" means the loans made by the Lenders to the Company
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan
in its related Competitive Bid.
"Margin Stock" shall have the meaning provided in Regulation
U of the Board.
"Material Adverse Effect" means (a) when used in any
representation and warranty or covenant of the Company on and as of the Third
Amended and Restated Effective Date, any event, development or circumstance
that has had or could reasonably be expected to have a material adverse effect
on (i) the business, assets, property or financial condition of the Company
and its Consolidated Subsidiaries taken as a whole, or (ii) the validity or
enforceability of this Agreement or the rights and remedies of the
Administrative Agent and the Lenders hereunder and (b) when used in any
representation and warranty or covenant of the Company on any date after the
Third Amended and Restated Effective Date, any change in the consolidated
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financial condition or operations of the Company and its Consolidated
Subsidiaries from that set forth in the consolidated balance sheet of the
Company dated as of December 31, 1999 that is likely to materially and adversely
affect the Company's ability to comply with Section 6.01 or to perform its other
obligations to the Lenders under this Agreement.
"Material Indebtedness" means Debt (other than the Loans) of
the Company in an aggregate principal amount exceeding $10,000,000.
"Maturity Date" means the date which falls 364 days after
the Third Amended and Restated Effective Date (the "Initial Maturity Date");
provided, that if the Company elects to extend the Initial Maturity Date
pursuant to Section 2.18 then with respect to such election, the Maturity Date
shall be the date which falls 364 days after the date of the Initial Maturity
Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Note" has the meaning ascribed to it in Section 2.08(e).
"Offer" has the meaning ascribed to it in the Preamble.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning ascribed to it in Section
9.04.
"Permitted Encumbrances" means with respect to the Company:
LIENS IMPOSED BY LAW FOR TAXES THAT ARE NOT YET DUE OR ARE BEING CONTESTED IN
GOOD FAITH BY APPROPRIATE PROCEEDINGS AND AS TO WHICH APPROPRIATE RESERVES
HAVE BEEN SET ASIDE IN ACCORDANCE WITH GAAP;
CARRIERS', WAREHOUSEMEN'S, MECHANICS', MATERIALMEN'S, AND REPAIRMEN'S LIENS,
LIENS FOR CREW'S WAGES OR SALVAGE (OR MAKING DEPOSITS TO RELEASE SUCH LIENS)
AND OTHER LIKE LIENS IMPOSED BY LAW, ARISING IN THE ORDINARY COURSE OF
BUSINESS AND SECURING OBLIGATIONS THAT ARE NOT OVERDUE BY MORE THAN 30 DAYS OR
ARE BEING CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS AND AS TO WHICH
APPROPRIATE RESERVES HAVE BEEN SET ASIDE IN ACCORDANCE WITH GAAP;
LIENS ON STANDARD INDUSTRY TERMS IMPOSED BY CHARTER PARTIES OR UNDER CONTRACTS
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OF AFFREIGHTMENT;
(a) Liens arising out of judgments or awards against
the Company or any of its Consolidated Subsidiaries with respect to
which the Company or such Subsidiary at the time shall currently be
prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal
or proceedings for review;
(b) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(c) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds or
performance bonds, margin posted to secure payment or performance
under futures, forwards or Swap Agreements, and other obligations of
a like nature, in each case in the ordinary course of business;
(d) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property and imperfections of titles
imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract
from the value of the affected property or interfere with the
ordinary conduct of business of the Company or any of its
Consolidated Subsidiaries;
(e) Liens on any oil and/or gas properties or other
mineral interests of the Company or any of its Consolidated
Subsidiaries, whether developed or undeveloped, arising (i) as
security for the Company's or such Subsidiary's costs and expenses
incurred by it in connection with the exploration, development or
operation of such properties, in favor of a person who is conducting
the exploration, development or operation of such properties, or (ii)
in connection with farmout, dry hole, bottom hole, communitization,
unitization, pooling and operating agreements and/or other agreements
of like general nature incident to the acquisition, exploration,
development and operation of such properties or as required by
regulatory agencies having jurisdiction in the premises; and
(f) overriding royalties, royalties, production
payments, net profits interests or like interests to be paid out of
production from oil and/or gas properties or other mineral interests
of the Company or any of its Consolidated Subsidiaries, or to be paid
out of the proceeds from the sale of any such production;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
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"Prior Credit Agreements" has the meaning ascribed to it in
the Preamble.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by the Reference Bank as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly announced as
being effective.
"Public Debt Rating" means, the ratings (whether explicit
or, if not explicit, implied) assigned by S&P and Moody's to Company's senior
unsecured non-credit enhanced long term debt. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt Rating,
the Applicable Facility Fee Rate, Applicable Margin and the Applicable
Utilization Fee Rate shall be determined by reference to the available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Facility Fee Rate, Applicable Margin and the Applicable Utilization
Fee Rate will be set in accordance with Level V under the definition of
"Applicable Facility Fee Rate", "Applicable Margin" or "Applicable Utilization
Fee Rate", as the case may be; (c) if the ratings established by S&P and
Moody's shall fall within different levels, the Applicable Facility Fee Rate,
the Applicable Margin and the Applicable Utilization Fee Rate shall be based
upon the higher of such ratings, provided that if the lower of such ratings is
more than one level below the higher of such ratings, the Applicable Facility
Fee Rate, Applicable Margin and the Applicable Utilization Fee Rate shall be
determined by reference to the level that is one level above such lower
rating, provided, further, that if either of the ratings established by S&P or
Moody's shall fall within Level V, the Applicable Facility Fee Rate, the
Applicable Margin and the Applicable Utilization Fee Rate will be set in
accordance with Level V under the definition of "Applicable Facility Fee
Rate", "Applicable Margin" or "Applicable Utilization Fee Rate", as the case
may be; (d) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the case
may be, shall refer to the then equivalent rating by S&P or Moody's, as the
case may be.
"Reference Bank" means The Chase Manhattan Bank, or such
other bank or banks as may from time to time be designated by the Company and
approved by the Administrative Agent.
"Register" has the meaning ascribed to it in Section 9.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, (a) at any time prior to the
termination of the Commitments pursuant to Article VII, Lenders having
Commitments representing at least 51%
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of the aggregate Commitments at such time (provided that, for purposes of
declaring the Loans to be due and payable pursuant to Article VII, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Commitments in determining the Required Lenders) and (b) for all
purposes after the termination of the Commitments pursuant to Article VII,
Lenders having outstanding Loans representing at least 51% of the aggregate
outstanding principal amount of Loans.
"Revolving Credit Exposure" means, with respect to any
Lender at any time, the outstanding principal amount of such Lender's
Revolving Loans.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SEC" shall mean the Securities and Exchange Commission.
"Scheduled Debt" has the meaning ascribed to it in Section
3.10.
"Significant Subsidiary" shall mean, with respect to any
Person on any date, a Consolidated Subsidiary of such Person that as of such
time satisfies the definition of a "significant subsidiary" contained as of
the date hereof in Regulation S-X of the SEC.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative
Agent is subject (a) with respect to the Base CD Rate, for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for eurodollar funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled
or held, or (b) that is, as of such date,
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otherwise Controlled, by the parent or one or more Subsidiaries of the parent
or by the parent and one or more Subsidiaries of the parent.
"Swap Agreement" means any interest rate, currency or
commodity swap agreement or other interest rate, currency or commodity price
protection agreement capable of financial settlement only.
"Swap Payment Obligation" means, with respect to any Person,
an obligation of such Person to pay money, either in respect of a periodic
payment or upon termination, to a counterparty under a Swap Agreement, after
giving effect to any netting arrangements between such Person and such
counterparty and such Person's rights of set-off in respect of such obligation
provided for in such Swap Agreement.
"Syndication Agent" has the meaning ascribed to it in the
Preamble.
"Target" has the meaning ascribed to it in the Preamble.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Telerate Page" means the display designated as Page 3750 on
the Dow Xxxxx Markets System (or such other page as may replace such page on
such service for the purpose of displaying the rates at which dollar deposits
are offered by leading banks in the London interbank deposit market).
"Third Amended and Restated Effective Date" means the date
on which the conditions set forth in Section 4.01 are satisfied.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day is not a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) or, if such rate is not
so reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00
a.m., New York City time, on such day (or, if such day is not a Business Day,
on the next preceding Business Day) by the Administrative Agent from three
negotiable certificate of deposit dealers of recognized standing selected by
it.
"Total Capitalization", of any Person on any date, means the
sum of (i) Total Consolidated Debt of such Person on such date and (ii)
shareholders' equity of such Person on such date, determined on a consolidated
basis in accordance with GAAP.
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"Total Consolidated Debt", of any Person on any date, means
all Debt of such Person and its Consolidated Subsidiaries on such date,
determined on a consolidated basis in accordance with GAAP.
"Total Exposure" means, with respect to any Lender at any
time, the sum of (i) the Revolving Credit Exposure of such Lender and (ii) the
aggregate outstanding principal amount of such Lender's Competitive Loans.
"Transactions" means each of the execution, delivery and
performance by the Company of this Agreement and the borrowing of Loans
hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the Adjusted LIBO
Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Utilization Fee" has the meaning ascribed to it in Section
2.10(b).
SECTION I.2. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION I.3. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's permitted successors and assigns, (c)
the words "herein", "hereof" and "hereunder", and words of similar import,
shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections
of, and Exhibits and Schedules to, this Agreement and (e) the words "asset"
and "property" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
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SECTION I.4. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Company notifies the Administrative Agent that the
Company requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such amendment is rejected or such
provision is amended in accordance herewith.
ARTICLE II
The Credits
SECTION II.1. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to the
Company from time to time during the Availability Period in an aggregate
principal amount not exceeding the amount of such Lender's Commitment;
provided, that after giving effect to each Revolving Credit Loan (a) no
Lender's Revolving Credit Exposure shall exceed such Lender's Commitment, and
(b) the sum of the Total Exposures of all the Lenders shall not exceed the sum
of the Commitments of all Lenders. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Company may borrow, prepay and
reborrow Revolving Loans.
SECTION II.2. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders, ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments and Competitive Bids of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make
Loans as required.
SUBJECT TO SECTION 2.12, (i) EACH REVOLVING BORROWING SHALL BE COMPRISED
ENTIRELY OF ABR LOANS OR EURODOLLAR LOANS AS THE COMPANY MAY REQUEST IN
ACCORDANCE HEREWITH AND SHALL BE IN DOLLARS AND (ii) EACH COMPETITIVE
BORROWING SHALL BE COMPRISED ENTIRELY OF EURODOLLAR LOANS OR FIXED RATE LOANS
AS THE COMPANY MAY REQUEST IN ACCORDANCE HEREWITH AND SHALL BE IN DOLLARS.
EACH LENDER AT ITS OPTION MAY MAKE ANY LOAN BY CAUSING ANY DOMESTIC OR FOREIGN
BRANCH OR AFFILIATE OF
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SUCH LENDER TO MAKE SUCH LOAN; PROVIDED THAT ANY EXERCISE OF SUCH OPTION SHALL
NOT AFFECT THE OBLIGATION OF THE COMPANY TO REPAY SUCH LOAN IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT.
AT THE COMMENCEMENT OF EACH INTEREST PERIOD FOR ANY EURODOLLAR REVOLVING
BORROWING, SUCH BORROWING SHALL BE IN AN AGGREGATE AMOUNT THAT IS AN INTEGRAL
MULTIPLE OF $1,000,000 AND NOT LESS THAN $10,000,000. AT THE TIME THAT EACH
ABR REVOLVING BORROWING IS MADE, SUCH BORROWING SHALL BE IN AN AGGREGATE
AMOUNT THAT IS AN INTEGRAL MULTIPLE OF $1,000,000 AND NOT LESS THAN
$10,000,000; PROVIDED THAT AN ABR REVOLVING BORROWING MAY BE IN AN AGGREGATE
AMOUNT THAT IS EQUAL TO THE ENTIRE UNUSED BALANCE OF THE TOTAL COMMITMENTS.
EACH COMPETITIVE BORROWING SHALL BE IN AN AGGREGATE AMOUNT THAT IS AN INTEGRAL
MULTIPLE OF $1,000,000 AND NOT LESS THAN $10,000,000. BORROWINGS OF MORE THAN
ONE TYPE AND CLASS MAY BE OUTSTANDING AT THE SAME TIME; PROVIDED THAT THERE
SHALL NOT AT ANY TIME BE MORE THAN A TOTAL OF 10 OUTSTANDING EURODOLLAR
REVOLVING BORROWINGS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE COMPANY SHALL NOT
BE ENTITLED TO REQUEST, OR TO ELECT TO CONVERT OR CONTINUE, ANY BORROWING IF
THE INTEREST PERIOD REQUESTED WITH RESPECT THERETO WOULD END AFTER THE
MATURITY DATE.
SECTION II.3. Requests for Revolving Borrowings. To request
a Revolving Borrowing, the Company shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of any ABR Borrowing, not later than
11:00 a.m., New York City time, on the Business Day of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent at
its office set forth in Section 9.01 of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Company. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
THE AGGREGATE AMOUNT OF THE REQUESTED BORROWING;
THE DATE OF SUCH BORROWING, WHICH SHALL BE A BUSINESS DAY;
WHETHER SUCH BORROWING IS TO BE AN ABR BORROWING OR A EURODOLLAR BORROWING;
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IN THE CASE OF A EURODOLLAR BORROWING, THE INITIAL INTEREST PERIOD TO BE
APPLICABLE THERETO, WHICH SHALL BE A PERIOD CONTEMPLATED BY THE DEFINITION OF
THE TERM "INTEREST PERIOD"; AND
THE LOCATION AND NUMBER OF THE COMPANY'S ACCOUNT TO WHICH FUNDS ARE TO BE
DISBURSED, WHICH SHALL COMPLY WITH THE REQUIREMENTS OF SECTION 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing,
then the Company shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
SECTION II.4 Bid Procedure for Competitive Loans. (a)
Subject to the terms and conditions set forth herein, from time to time during
the Availability Period the Company may request Competitive Bids and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided, that after giving effect to each Competitive Loan
the sum of the Total Exposures of all the Lenders shall not exceed the sum of
the Commitments of all Lenders. To request Competitive Bids, the Company shall
notify the Administrative Agent at its office set forth in Section 9.01 of
such request by telephone, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Competitive
Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved
by the Administrative Agent and signed by the Company. Each such telephonic
and written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
THE AGGREGATE AMOUNT OF THE REQUESTED BORROWING;
THE DATE OF SUCH BORROWING, WHICH SHALL BE A BUSINESS DAY;
WHETHER SUCH BORROWING IS TO BE A EURODOLLAR BORROWING OR A FIXED RATE
BORROWING;
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THE INTEREST PERIOD TO BE APPLICABLE TO SUCH BORROWING, WHICH SHALL BE A
PERIOD CONTEMPLATED BY THE DEFINITION OF THE TERM "INTEREST PERIOD";
THE MATURITY DATE OF SUCH BORROWING, WHICH SHALL BE NO LESS THAN SEVEN AND NO
MORE THAN 360 DAYS FROM THE REQUESTED DRAWDOWN DATE OF SUCH BORROWING; AND
THE LOCATION AND NUMBER OF THE COMPANY'S ACCOUNT TO WHICH FUNDS ARE TO BE
DISBURSED, WHICH SHALL COMPLY WITH THE REQUIREMENTS OF SECTION 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with
this Section, the Administrative Agent shall notify the Competitive Loan
Lenders of the details thereof by telecopy, inviting the Competitive Loan
Lenders to submit Competitive Bids.
EACH COMPETITIVE LOAN LENDER MAY (BUT SHALL NOT HAVE ANY OBLIGATION TO) MAKE
ONE OR MORE COMPETITIVE BIDS TO THE COMPANY IN RESPONSE TO A COMPETITIVE BID
REQUEST. EACH COMPETITIVE BID BY A COMPETITIVE LOAN LENDER MUST BE IN A FORM
APPROVED BY THE ADMINISTRATIVE AGENT AND MUST BE RECEIVED BY THE
ADMINISTRATIVE AGENT AT ITS OFFICE SET FORTH IN SECTION 9.01 BY TELECOPY, (i)
IN THE CASE OF A EURODOLLAR COMPETITIVE BORROWING, NOT LATER THAN 9:30 A.M.,
NEW YORK CITY TIME, THREE BUSINESS DAYS BEFORE THE DATE OF THE PROPOSED
BORROWING AND (ii) IN THE CASE OF A FIXED RATE BORROWING, NOT LATER THAN 9:30
A.M., NEW YORK CITY TIME, ON THE PROPOSED DATE OF SUCH COMPETITIVE BORROWING.
COMPETITIVE BIDS THAT DO NOT CONFORM SUBSTANTIALLY TO THE FORM APPROVED BY THE
ADMINISTRATIVE AGENT MAY BE REJECTED BY THE ADMINISTRATIVE AGENT, AND THE
ADMINISTRATIVE AGENT SHALL NOTIFY THE APPLICABLE COMPETITIVE LOAN LENDER OF
SUCH REJECTION AS PROMPTLY AS PRACTICABLE. EACH COMPETITIVE BID SHALL SPECIFY
(i) THE PRINCIPAL AMOUNT (WHICH SHALL BE A MINIMUM OF $5,000,000 AND AN
INTEGRAL MULTIPLE OF $1,000,000 AND WHICH MAY EQUAL THE ENTIRE PRINCIPAL
AMOUNT OF THE COMPETITIVE BORROWING REQUESTED BY THE COMPANY) OF THE
COMPETITIVE LOAN OR LOANS THAT THE COMPETITIVE LOAN LENDER IS WILLING TO MAKE,
(ii) THE COMPETITIVE BID RATE OR RATES AT WHICH THE COMPETITIVE LOAN LENDER IS
PREPARED TO MAKE SUCH LOAN OR LOANS (EXPRESSED AS A PERCENTAGE RATE PER ANNUM
IN THE FORM OF A DECIMAL TO NO MORE THAN FOUR DECIMAL PLACES) AND (iii) THE
INTEREST PERIOD APPLICABLE TO EACH SUCH LOAN AND THE LAST DAY THEREOF.
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THE ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY THE COMPANY BY TELECOPY OF THE
COMPETITIVE BID RATE AND THE PRINCIPAL AMOUNT SPECIFIED IN EACH COMPETITIVE
BID AND THE IDENTITY OF THE LENDER THAT SHALL HAVE MADE SUCH COMPETITIVE BID.
SUBJECT ONLY TO THE PROVISIONS OF THIS PARAGRAPH, THE COMPANY MAY ACCEPT OR
REJECT ANY COMPETITIVE BID. THE COMPANY SHALL NOTIFY THE ADMINISTRATIVE AGENT
BY TELEPHONE, CONFIRMED BY TELECOPY IN A FORM APPROVED BY THE ADMINISTRATIVE
AGENT, WHETHER AND TO WHAT EXTENT IT HAS DECIDED TO ACCEPT OR REJECT EACH
COMPETITIVE BID, (i) IN THE CASE OF A EURODOLLAR COMPETITIVE BORROWING, NOT
LATER THAN 10:30 A.M., NEW YORK CITY TIME, THREE BUSINESS DAYS BEFORE THE DATE
OF THE PROPOSED BORROWING AND (ii) IN THE CASE OF A FIXED RATE BORROWING, NOT
LATER THAN 10:30 A.M., NEW YORK CITY TIME, ON THE PROPOSED DATE OF SUCH
COMPETITIVE BORROWING; PROVIDED THAT (i) THE FAILURE OF THE COMPANY TO GIVE
SUCH NOTICE SHALL BE DEEMED TO BE A REJECTION OF EACH COMPETITIVE BID, (ii)
THE COMPANY SHALL NOT ACCEPT A COMPETITIVE BID MADE AT A PARTICULAR
COMPETITIVE BID RATE IF THE COMPANY REJECTS A COMPETITIVE BID MADE AT A LOWER
COMPETITIVE BID RATE, (iii) THE AGGREGATE AMOUNT OF THE COMPETITIVE BIDS
ACCEPTED BY THE COMPANY SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE REQUESTED
COMPETITIVE BORROWING SPECIFIED IN THE RELATED COMPETITIVE BID REQUEST, (iv)
TO THE EXTENT NECESSARY TO COMPLY WITH CLAUSE (iii) OF THIS PROVISO, THE
COMPANY MAY ACCEPT COMPETITIVE BIDS AT THE SAME COMPETITIVE BID RATE IN PART,
WHICH ACCEPTANCE, IN THE CASE OF MULTIPLE COMPETITIVE BIDS AT SUCH COMPETITIVE
BID RATE, SHALL BE MADE PRO RATA IN ACCORDANCE WITH THE AMOUNT OF EACH SUCH
COMPETITIVE BID, AND (v) EXCEPT PURSUANT TO CLAUSE (iv) ABOVE, NO COMPETITIVE
BID SHALL BE ACCEPTED FOR A COMPETITIVE LOAN UNLESS SUCH COMPETITIVE LOAN IS
IN A MINIMUM PRINCIPAL AMOUNT OF $5,000,000 AND AN INTEGRAL MULTIPLE OF
$1,000,000; PROVIDED FURTHER THAT IF A COMPETITIVE LOAN MUST BE IN AN AMOUNT
LESS THAN $5,000,000 BECAUSE OF THE PROVISIONS OF CLAUSE (iv) ABOVE, SUCH
COMPETITIVE LOAN MAY BE FOR A MINIMUM OF $1,000,000 OR ANY INTEGRAL MULTIPLE
THEREOF, AND IN CALCULATING THE PRO RATA ALLOCATION OF ACCEPTANCES OF PORTIONS
OF MULTIPLE COMPETITIVE BIDS AT A PARTICULAR COMPETITIVE BID RATE PURSUANT TO
CLAUSE (iv) THE AMOUNTS SHALL BE ROUNDED TO INTEGRAL MULTIPLES OF $1,000,000
IN A MANNER DETERMINED BY THE COMPANY. A NOTICE GIVEN BY THE COMPANY PURSUANT
TO THIS PARAGRAPH SHALL BE IRREVOCABLE.
THE ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH BIDDING LENDER BY TELECOPY
WHETHER OR NOT ITS COMPETITIVE BID HAS BEEN ACCEPTED (AND, IF SO, THE AMOUNT
AND COMPETITIVE BID RATE SO ACCEPTED), AND EACH SUCCESSFUL BIDDER WILL
THEREUPON BECOME BOUND, SUBJECT TO THE TERMS AND CONDITIONS HEREOF, TO MAKE
THE COMPETITIVE LOAN IN RESPECT OF WHICH ITS COMPETITIVE BID HAS BEEN
ACCEPTED.
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IF THE ADMINISTRATIVE AGENT SHALL ELECT TO SUBMIT A COMPETITIVE BID IN ITS
CAPACITY AS A LENDER, IT SHALL SUBMIT SUCH COMPETITIVE BID DIRECTLY TO THE
COMPANY AT LEAST ONE QUARTER OF AN HOUR EARLIER THAN THE TIME BY WHICH THE
OTHER COMPETITIVE LOAN LENDERS ARE REQUIRED TO SUBMIT THEIR COMPETITIVE BIDS
TO THE ADMINISTRATIVE AGENT PURSUANT TO PARAGRAPH (b) OF THIS SECTION.
SECTION II.5. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the
Lenders; such transfers shall be made by (x) 12:00 Noon, New York City time in
the case of Borrowings other than ABR Borrowings and (y) 2:00 PM, New York
City time in the case of ABR Borrowings on the date such Loan is made. The
Administrative Agent will make such amounts available to the Company by
promptly crediting the amounts so received, in like funds, to an account of
the Company designated by the Company in the applicable Borrowing Request or
Competitive Bid Request.
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM A LENDER PRIOR
TO THE PROPOSED DATE OF ANY BORROWING THAT SUCH LENDER WILL NOT MAKE AVAILABLE
TO THE ADMINISTRATIVE AGENT SUCH LENDER'S SHARE OF SUCH BORROWING, THE
ADMINISTRATIVE AGENT MAY ASSUME THAT SUCH LENDER HAS MADE SUCH SHARE AVAILABLE
ON SUCH DATE IN ACCORDANCE WITH PARAGRAPH (a) OF THIS SECTION AND MAY, IN
RELIANCE UPON SUCH ASSUMPTION, MAKE AVAILABLE TO THE COMPANY A CORRESPONDING
AMOUNT. IN SUCH EVENT, IF A LENDER HAS NOT IN FACT MADE ITS SHARE OF THE
APPLICABLE BORROWING AVAILABLE TO THE ADMINISTRATIVE AGENT, THEN THE
APPLICABLE LENDER AND THE COMPANY SEVERALLY AGREE TO PAY TO THE ADMINISTRATIVE
AGENT FORTHWITH ON DEMAND SUCH CORRESPONDING AMOUNT WITH INTEREST THEREON, FOR
EACH DAY FROM AND INCLUDING THE DATE SUCH AMOUNT IS MADE AVAILABLE TO THE
COMPANY TO BUT EXCLUDING THE DATE OF PAYMENT TO THE ADMINISTRATIVE AGENT, AT
(i) IN THE CASE OF SUCH LENDER, THE FEDERAL FUNDS EFFECTIVE RATE OR (ii) IN
THE CASE OF THE COMPANY, THE INTEREST RATE APPLICABLE TO ABR LOANS. IF SUCH
LENDER PAYS SUCH AMOUNT TO THE ADMINISTRATIVE AGENT, THEN SUCH AMOUNT SHALL
CONSTITUTE SUCH LENDER'S LOAN INCLUDED IN SUCH BORROWING.
SECTION II.6. Interest Elections. (a) Each Revolving
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Revolving Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter,
the Company may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Company may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate
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Borrowing. This Section shall not apply to Competitive Borrowings, which may
not be converted or continued.
TO MAKE AN ELECTION PURSUANT TO THIS SECTION, THE COMPANY SHALL NOTIFY THE
ADMINISTRATIVE AGENT OF SUCH ELECTION BY TELEPHONE BY THE TIME THAT A
BORROWING REQUEST WOULD BE REQUIRED UNDER SECTION 2.03 IF THE COMPANY WERE
REQUESTING A REVOLVING BORROWING OF THE TYPE RESULTING FROM SUCH ELECTION TO
BE MADE ON THE EFFECTIVE DATE OF SUCH ELECTION. EACH SUCH TELEPHONIC INTEREST
ELECTION REQUEST SHALL BE IRREVOCABLE AND SHALL BE CONFIRMED PROMPTLY BY HAND
DELIVERY OR TELECOPY TO THE ADMINISTRATIVE AGENT OF A WRITTEN INTEREST
ELECTION REQUEST IN A FORM APPROVED BY THE ADMINISTRATIVE AGENT AND SIGNED BY
THE COMPANY.
EACH TELEPHONIC AND WRITTEN INTEREST ELECTION REQUEST SHALL SPECIFY THE
FOLLOWING INFORMATION IN COMPLIANCE WITH SECTION 2.02:
THE BORROWING TO WHICH SUCH INTEREST ELECTION REQUEST APPLIES AND, IF
DIFFERENT OPTIONS ARE BEING ELECTED WITH RESPECT TO DIFFERENT PORTIONS
THEREOF, THE PORTIONS THEREOF TO BE ALLOCATED TO EACH RESULTING BORROWING (IN
WHICH CASE THE INFORMATION TO BE SPECIFIED PURSUANT TO CLAUSES (iii) AND (iv)
BELOW SHALL BE SPECIFIED FOR EACH RESULTING BORROWING);
THE EFFECTIVE DATE OF THE ELECTION MADE PURSUANT TO SUCH INTEREST ELECTION
REQUEST, WHICH SHALL BE A BUSINESS DAY;
WHETHER THE RESULTING BORROWING IS TO BE AN ABR BORROWING OR A EURODOLLAR
BORROWING; AND
IF THE RESULTING BORROWING IS A EURODOLLAR BORROWING, THE INTEREST PERIOD TO
BE APPLICABLE THERETO AFTER GIVING EFFECT TO SUCH ELECTION, WHICH SHALL BE A
PERIOD CONTEMPLATED BY THE DEFINITION OF THE TERM "INTEREST PERIOD".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Company shall be deemed to have
selected an Interest Period of one month's duration.
PROMPTLY FOLLOWING RECEIPT OF AN INTEREST ELECTION REQUEST, THE ADMINISTRATIVE
AGENT SHALL ADVISE EACH LENDER OF THE DETAILS THEREOF AND OF SUCH LENDER'S
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PORTION OF EACH RESULTING BORROWING.
IF THE COMPANY FAILS TO DELIVER A TIMELY INTEREST ELECTION REQUEST WITH
RESPECT TO A EURODOLLAR REVOLVING BORROWING PRIOR TO THE END OF THE INTEREST
PERIOD APPLICABLE THERETO, THEN, UNLESS SUCH BORROWING IS REPAID AS PROVIDED
HEREIN, AT THE END OF SUCH INTEREST PERIOD SUCH BORROWING SHALL BE CONVERTED
TO AN ABR BORROWING. NOTWITHSTANDING ANY CONTRARY PROVISION HEREOF, IF AN
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND THE ADMINISTRATIVE AGENT,
AT THE REQUEST OF THE REQUIRED LENDERS, SO NOTIFIES THE COMPANY, THEN, SO LONG
AS AN EVENT OF DEFAULT IS CONTINUING (i) NO OUTSTANDING REVOLVING BORROWING
MAY BE CONVERTED TO OR CONTINUED AS A EURODOLLAR BORROWING AND (ii) UNLESS
REPAID, EACH EURODOLLAR REVOLVING BORROWING SHALL BE CONVERTED TO AN ABR
BORROWING AT THE END OF THE INTEREST PERIOD APPLICABLE THERETO.
SECTION II.7. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Initial Maturity Date.
THE COMPANY MAY AT ANY TIME TERMINATE, OR FROM TIME TO TIME REDUCE, THE
AGGREGATE AMOUNT OF THE COMMITMENTS; PROVIDED THAT (i) EACH REDUCTION OF THE
COMMITMENTS SHALL BE IN AN AMOUNT THAT IS AN INTEGRAL MULTIPLE OF $10,000,000
AND NOT LESS THAN $50,000,000 AND (ii) THE COMPANY SHALL NOT TERMINATE OR
REDUCE THE COMMITMENTS IF, AFTER GIVING EFFECT TO ANY CONCURRENT PREPAYMENT OF
THE LOANS IN ACCORDANCE WITH SECTION 2.09, THE SUM OF THE TOTAL EXPOSURES OF
ALL THE LENDERS WOULD EXCEED THE TOTAL COMMITMENTS.
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THE COMPANY SHALL NOTIFY THE ADMINISTRATIVE AGENT OF ANY ELECTION TO TERMINATE
OR REDUCE THE COMMITMENTS UNDER PARAGRAPH (b) OF THIS SECTION AT LEAST THREE
BUSINESS DAYS PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION OR REDUCTION,
SPECIFYING SUCH ELECTION AND THE EFFECTIVE DATE THEREOF. PROMPTLY FOLLOWING
RECEIPT OF ANY NOTICE, THE ADMINISTRATIVE AGENT SHALL ADVISE THE LENDERS OF
THE CONTENTS THEREOF. EACH NOTICE DELIVERED BY THE COMPANY PURSUANT TO THIS
SECTION SHALL BE IRREVOCABLE; PROVIDED THAT A NOTICE OF TERMINATION OF THE
COMMITMENTS DELIVERED BY THE COMPANY MAY STATE THAT SUCH NOTICE IS CONDITIONED
UPON THE EFFECTIVENESS OF OTHER CREDIT FACILITIES, IN WHICH CASE SUCH NOTICE
MAY BE REVOKED BY THE COMPANY (BY NOTICE TO THE ADMINISTRATIVE AGENT ON OR
PRIOR TO THE SPECIFIED EFFECTIVE DATE) IF SUCH CONDITION IS NOT SATISFIED. ANY
TERMINATION OR REDUCTION OF THE COMMITMENTS SHALL BE PERMANENT. EACH REDUCTION
OF THE COMMITMENTS SHALL BE MADE RATABLY AMONG THE LENDERS BASED ON THEIR
RESPECTIVE COMMITMENTS.
SECTION II.8. Repayment of Loans; Evidence of Debt. (a) The
Company hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan made to the Company on the Maturity Date applicable to each
Loan and (ii) to the Administrative Agent for the account of each Competitive
Loan Lender the then unpaid principal amount of each Competitive Loan made by
such Competitive Loan Lender to the Company on the last day of the Interest
Period applicable to such Loan.
EACH LENDER SHALL MAINTAIN IN ACCORDANCE WITH ITS USUAL PRACTICE AN ACCOUNT OR
ACCOUNTS EVIDENCING THE INDEBTEDNESS OF THE COMPANY TO SUCH LENDER RESULTING
FROM EACH LOAN MADE BY SUCH LENDER TO THE COMPANY, INCLUDING THE AMOUNTS OF
PRINCIPAL AND INTEREST PAYABLE AND PAID TO SUCH LENDER BY THE COMPANY FROM
TIME TO TIME HEREUNDER.
THE ADMINISTRATIVE AGENT SHALL MAINTAIN ACCOUNTS IN WHICH IT SHALL RECORD (i)
THE AMOUNT OF EACH LOAN MADE HEREUNDER, THE CLASS AND TYPE THEREOF AND THE
INTEREST PERIOD APPLICABLE THERETO, (ii) THE AMOUNT OF ANY PRINCIPAL OR
INTEREST DUE AND PAYABLE OR TO BECOME DUE AND PAYABLE FROM THE COMPANY TO EACH
LENDER HEREUNDER AND (iii) THE AMOUNT OF ANY SUM RECEIVED BY THE
ADMINISTRATIVE AGENT HEREUNDER FOR THE ACCOUNT OF THE LENDERS AND EACH
LENDER'S SHARE THEREOF.
THE ENTRIES MADE IN THE ACCOUNTS MAINTAINED PURSUANT TO PARAGRAPH (b) OR (c)
OF THIS SECTION SHALL, ABSENT MANIFEST ERROR, BE PRIMA FACIE EVIDENCE OF THE
EXISTENCE AND AMOUNTS OF THE OBLIGATIONS RECORDED THEREIN; PROVIDED THAT THE
FAILURE OF ANY LENDER OR THE ADMINISTRATIVE AGENT TO MAINTAIN SUCH ACCOUNTS OR
ANY ERROR
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THEREIN SHALL NOT IN ANY MANNER AFFECT THE OBLIGATION OF THE COMPANY TO REPAY
THE LOANS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
ANY LENDER MAY REQUEST THAT LOANS MADE BY IT BE EVIDENCED BY A PROMISSORY
NOTE. IN SUCH EVENT, THE COMPANY SHALL PREPARE, EXECUTE AND DELIVER TO SUCH
LENDER A NON-NEGOTIABLE PROMISSORY NOTE SUBSTANTIALLY IN THE FORM ATTACHED AS
EXHIBIT B (A "NOTE") PAYABLE TO THE ORDER OF SUCH LENDER (OR, IF REQUESTED BY
SUCH LENDER, TO SUCH LENDER AND ITS PERMITTED REGISTERED ASSIGNS). THEREAFTER,
THE LOANS EVIDENCED BY SUCH NOTE AND INTEREST THEREON SHALL AT ALL TIMES
(INCLUDING AFTER ASSIGNMENT PURSUANT TO SECTION 9.04) BE REPRESENTED BY ONE OR
MORE NOTES PAYABLE TO THE ORDER OF THE PAYEE NAMED THEREIN (OR, IF SUCH NOTE
IS A REGISTERED NOTE, TO SUCH PAYEE AND ITS PERMITTED REGISTERED ASSIGNS).
SECTION II.9. Prepayment of Loans. (a) The Company shall
have the right at any time and from time to time to prepay any Borrowing made
by it in whole or in part, subject to prior notice in accordance with
paragraph (b) of this Section; provided that the Company shall not have the
right to prepay any Competitive Loan without the prior consent of the Lender
thereof.
THE COMPANY SHALL NOTIFY THE ADMINISTRATIVE AGENT BY TELEPHONE (CONFIRMED BY
TELECOPY) OF ANY PREPAYMENT HEREUNDER (i) IN THE CASE OF PREPAYMENT OF A
EURODOLLAR REVOLVING BORROWING, NOT LATER THAN 11:00 A.M., NEW YORK CITY TIME,
THREE BUSINESS DAYS BEFORE THE DATE OF PREPAYMENT AND (ii) IN THE CASE OF
PREPAYMENT OF AN ABR REVOLVING BORROWING, NOT LATER THAN 11:00 A.M., NEW YORK
CITY TIME, ONE BUSINESS DAY BEFORE THE DATE OF PREPAYMENT. EACH SUCH NOTICE
SHALL BE IRREVOCABLE AND SHALL SPECIFY THE PREPAYMENT DATE AND THE PRINCIPAL
AMOUNT OF EACH BORROWING OR PORTION THEREOF TO BE PREPAID; PROVIDED THAT, IF A
NOTICE OF PREPAYMENT IS GIVEN IN CONNECTION WITH A CONDITIONAL NOTICE OF
TERMINATION OF THE COMMITMENTS AS CONTEMPLATED BY SECTION 2.07, THEN SUCH
NOTICE OF PREPAYMENT MAY BE REVOKED IF SUCH NOTICE OF TERMINATION IS REVOKED
IN ACCORDANCE WITH SECTION 2.07. PROMPTLY FOLLOWING RECEIPT OF ANY SUCH NOTICE
RELATING TO A REVOLVING BORROWING, THE ADMINISTRATIVE AGENT SHALL ADVISE THE
LENDERS OF THE CONTENTS THEREOF. EACH PARTIAL PREPAYMENT OF ANY REVOLVING
BORROWING SHALL BE IN AN AMOUNT THAT WOULD BE PERMITTED IN THE CASE OF AN
ADVANCE OF A REVOLVING BORROWING OF THE SAME TYPE AS PROVIDED IN SECTION 2.02.
EACH PREPAYMENT OF A REVOLVING BORROWING SHALL BE APPLIED RATABLY TO THE LOANS
INCLUDED IN THE PREPAID BORROWING. PREPAYMENTS SHALL BE ACCOMPANIED BY ACCRUED
INTEREST TO THE EXTENT REQUIRED BY SECTION 2.11.
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SECTION II.10. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, (the
"Facility Fee") which shall accrue at the Applicable Facility Fee Rate on the
daily amount of the Commitment of such Lender (whether used or unused) during
the period from and including the date hereof to but excluding the date on
which such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such
Facility Fee shall continue to accrue on the daily amount of such Lender's
Revolving Credit Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued Facility Fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the
date on which the Commitments terminate, commencing on the first such date to
occur after the date hereof; provided that any Facility Fees accruing after
the date on which the Commitments terminate shall be payable on demand. All
Facility Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
FOR ANY DAY THAT THE AGGREGATE PRINCIPAL AMOUNT OF THE LOANS OUTSTANDING
EXCEEDS 33% OF THE AGGREGATE COMMITMENTS, COMPANY SHALL PAY TO THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH LENDER A UTILIZATION FEE (THE
"UTILIZATION FEE") EQUAL TO THE APPLICABLE UTILIZATION FEE RATE TIMES THE
AGGREGATE OUTSTANDING REVOLVING LOANS ON SUCH DATE. THE UTILIZATION FEE SHALL
ACCRUE, TO THE EXTENT APPLICABLE, AT ALL TIMES FROM THE THIRD AMENDED AND
RESTATED EFFECTIVE DATE UNTIL THE MATURITY DATE AND SHALL BE PAYABLE IN
ARREARS ON THE LAST DAY OF MARCH, JUNE, SEPTEMBER AND DECEMBER OF EACH YEAR
AND ON THE MATURITY DATE APPLICABLE TO EACH LOAN, COMMENCING ON THE FIRST SUCH
DATE TO OCCUR AFTER THE DATE HEREOF. ALL UTILIZATION FEES SHALL BE COMPUTED ON
THE BASIS OF A YEAR OF 360 DAYS AND SHALL BE PAYABLE FOR THE ACTUAL NUMBER OF
DAYS ELAPSED (INCLUDING THE FIRST DAY BUT EXCLUDING THE LAST DAY).
THE COMPANY AGREES TO PAY TO THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS,
FOR THEIR OWN ACCOUNTS, FEES PAYABLE IN THE AMOUNTS AND AT THE TIMES
SEPARATELY AGREED UPON BETWEEN THE COMPANY AND SUCH OTHER PARTIES.
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ALL FEES PAYABLE HEREUNDER SHALL BE PAID ON THE DATES DUE, IN IMMEDIATELY
AVAILABLE FUNDS, TO THE ADMINISTRATIVE AGENT (OR TO EACH OF THE LENDERS, IN
THE CASE OF FEES PAYABLE TO IT) FOR DISTRIBUTION, IN THE CASE OF FACILITY FEES
AND/OR UTILIZATION FEES, TO THE LENDERS; PROVIDED, THAT WITH RESPECT TO
ALLOCATING FACILITY FEES, THE ADMINISTRATIVE AGENT WILL TAKE INTO ACCOUNT THE
CHANGES IN THE COMMITMENTS AND ADJUSTMENTS TO PRO RATA SHARES OF THE LENDERS
MADE HEREIN AND IN THE PRIOR CREDIT AGREEMENTS. ABSENT MANIFEST ERROR, FEES
PAID SHALL NOT BE REFUNDABLE UNDER ANY CIRCUMSTANCES.
SECTION II.11. Interest. (a) The Loans comprising each
ABR Borrowing shall bear interest at a rate per annum equal to the Alternate
Base Rate.
THE LOANS COMPRISING EACH EURODOLLAR BORROWING SHALL BEAR INTEREST AT A RATE
PER ANNUM EQUAL TO (i) IN THE CASE OF A EURODOLLAR REVOLVING LOAN, THE
ADJUSTED LIBO RATE FOR THE INTEREST PERIOD IN EFFECT FOR SUCH BORROWING PLUS
THE APPLICABLE MARGIN OR (ii) IN THE CASE OF A EURODOLLAR COMPETITIVE LOAN,
THE LIBO RATE FOR THE INTEREST PERIOD IN EFFECT FOR SUCH BORROWING PLUS (OR
MINUS, AS APPLICABLE) THE MARGIN APPLICABLE TO SUCH LOAN.
(b Each Fixed Rate Loan shall bear interest at a rate
per annum equal to the Fixed Rate applicable to such Loan.
NOTWITHSTANDING THE FOREGOING, IF ANY PRINCIPAL OF OR INTEREST ON ANY LOAN OR
ANY FEE OR OTHER AMOUNT PAYABLE BY THE COMPANY HEREUNDER IS NOT PAID WHEN DUE,
WHETHER AT STATED MATURITY, UPON ACCELERATION OR OTHERWISE, SUCH OVERDUE
AMOUNT SHALL BEAR INTEREST, AFTER AS WELL AS BEFORE JUDGMENT, AT A RATE PER
ANNUM EQUAL TO (i) IN THE CASE OF OVERDUE PRINCIPAL OF ANY LOAN, 2% PLUS THE
RATE OTHERWISE APPLICABLE TO SUCH LOAN AS PROVIDED ABOVE OR (ii) IN THE CASE
OF ANY OTHER AMOUNT, 2% PLUS THE RATE APPLICABLE TO ABR LOANS AS PROVIDED
ABOVE.
ACCRUED INTEREST ON EACH LOAN SHALL BE PAYABLE IN ARREARS ON EACH INTEREST
PAYMENT DATE FOR SUCH LOAN; PROVIDED THAT (i) INTEREST ACCRUED PURSUANT TO
PARAGRAPH (d) OF THIS SECTION SHALL BE PAYABLE ON DEMAND, (ii) IN THE EVENT OF
ANY REPAYMENT OR PREPAYMENT OF ANY LOAN (OTHER THAN A PREPAYMENT OF AN ABR
REVOLVING LOAN PRIOR TO THE END OF THE AVAILABILITY PERIOD), ACCRUED INTEREST
ON THE PRINCIPAL AMOUNT REPAID OR PREPAID SHALL BE PAYABLE ON THE DATE OF SUCH
REPAYMENT OR PREPAYMENT, (iii) IN THE EVENT OF ANY CONVERSION OF ANY
EURODOLLAR REVOLVING LOAN PRIOR TO THE END OF THE CURRENT INTEREST PERIOD
THEREFOR, ACCRUED INTEREST ON SUCH LOAN SHALL BE PAYABLE ON THE EFFECTIVE DATE
OF SUCH CONVERSION AND (iv) ALL ACCRUED INTEREST ON SUCH LOAN SHALL BE PAYABLE
ON THE MATURITY DATE
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APPLICABLE TO SUCH LOAN.
ALL INTEREST HEREUNDER SHALL BE COMPUTED ON THE BASIS OF A YEAR OF 360 DAYS,
EXCEPT THAT INTEREST COMPUTED BY REFERENCE TO THE ALTERNATE BASE RATE AT TIMES
WHEN THE ALTERNATE BASE RATE IS BASED ON THE PRIME RATE, SHALL BE COMPUTED ON
THE BASIS OF A YEAR OF 365 DAYS (OR 366 DAYS IN A LEAP YEAR), AND SHALL BE
PAYABLE FOR THE ACTUAL NUMBER OF DAYS ELAPSED (INCLUDING THE FIRST DAY BUT
EXCLUDING THE LAST DAY). THE APPLICABLE ALTERNATE BASE RATE, ADJUSTED LIBO
RATE OR LIBO RATE SHALL BE DETERMINED BY THE ADMINISTRATIVE AGENT, AND SUCH
DETERMINATION SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR.
SECTION II.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that because of a change in
circumstances affecting the eurodollar market generally the Adjusted
LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to,
or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Company for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby
and (B) if the circumstances giving rise to such notice affect only one Type
of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION II.13. Increased Costs. (a) If any Change in Law
shall:
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IMPOSE, MODIFY OR DEEM APPLICABLE ANY RESERVE, SPECIAL DEPOSIT OR SIMILAR
REQUIREMENT AGAINST ASSETS OF, DEPOSITS WITH OR FOR THE ACCOUNT OF, OR CREDIT
EXTENDED BY, ANY LENDER (EXCEPT ANY SUCH RESERVE REQUIREMENT REFLECTED IN THE
ADJUSTED LIBO RATE); OR
IMPOSE ON ANY LENDER OR THE LONDON INTERBANK MARKET ANY OTHER CONDITION
AFFECTING THIS AGREEMENT OR EURODOLLAR LOANS OR FIXED RATE LOANS MADE BY SUCH
LENDER;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Company will pay to such Lender such
additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
IF ANY LENDER DETERMINES THAT ANY CHANGE IN LAW REGARDING CAPITAL REQUIREMENTS
HAS OR WOULD HAVE THE EFFECT OF REDUCING THE RATE OF RETURN ON SUCH LENDER'S
CAPITAL OR ON THE CAPITAL OF SUCH LENDER'S HOLDING COMPANY, IF ANY, AS A
CONSEQUENCE OF THIS AGREEMENT OR THE LOANS MADE BY, SUCH LENDER, TO A LEVEL
BELOW THAT WHICH SUCH LENDER OR SUCH LENDER'S HOLDING COMPANY COULD HAVE
ACHIEVED BUT FOR SUCH CHANGE IN LAW (TAKING INTO CONSIDERATION SUCH LENDER'S
POLICIES AND THE POLICIES OF SUCH LENDER'S HOLDING COMPANY WITH RESPECT TO
CAPITAL ADEQUACY), THEN FROM TIME TO TIME THE COMPANY WILL PAY TO SUCH LENDER
SUCH ADDITIONAL AMOUNT OR AMOUNTS AS WILL COMPENSATE SUCH LENDER OR SUCH
LENDER'S HOLDING COMPANY FOR ANY SUCH REDUCTION SUFFERED.
A CERTIFICATE OF A LENDER SETTING FORTH THE AMOUNT OR AMOUNTS NECESSARY TO
COMPENSATE SUCH LENDER OR ITS HOLDING COMPANY, AS THE CASE MAY BE, AS
SPECIFIED IN PARAGRAPH (a) OR (b) OF THIS SECTION SHALL BE DELIVERED TO THE
COMPANY AND SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR. THE COMPANY SHALL PAY
SUCH LENDER THE AMOUNT SHOWN AS DUE ON ANY SUCH CERTIFICATE WITHIN 10 DAYS
AFTER RECEIPT THEREOF.
FAILURE OR DELAY ON THE PART OF ANY LENDER TO DEMAND COMPENSATION PURSUANT TO
THIS SECTION SHALL NOT CONSTITUTE A WAIVER OF SUCH LENDER'S RIGHT TO DEMAND
SUCH COMPENSATION; PROVIDED THAT THE COMPANY SHALL NOT BE REQUIRED TO
COMPENSATE A LENDER PURSUANT TO THIS SECTION FOR ANY INCREASED COSTS OR
REDUCTIONS INCURRED MORE THAN THREE MONTHS PRIOR TO THE DATE THAT SUCH LENDER
NOTIFIES THE COMPANY OF THE CHANGE IN LAW GIVING RISE TO SUCH INCREASED COSTS
OR REDUCTIONS AND OF
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SUCH LENDER'S INTENTION TO CLAIM COMPENSATION THEREFOR; PROVIDED, FURTHER
THAT, IF THE CHANGE IN LAW GIVING RISE TO SUCH INCREASED COSTS OR REDUCTIONS
IS RETROACTIVE, THEN THE THREE-MONTH PERIOD REFERRED TO ABOVE SHALL BE
EXTENDED TO INCLUDE THE PERIOD OF RETROACTIVE EFFECT THEREOF.
(b Notwithstanding the foregoing provisions of this
Section, a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Bid pursuant to which such Loan was
made.
SECTION II.14. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurodollar Loan or Fixed Rate Loan other
than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Revolving Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable under Section 2.09(b) and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Company pursuant to
Section 2.17, then, in any such event, the Company shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case
of a Eurodollar Loan, the loss to any Lender attributable to any such event
shall be deemed to include an amount determined by such Lender to be equal to
the excess, if any, of (i) the amount of interest that such Lender would pay
for a deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last day of
the then current Interest Period for such Loan (or, in the case of a failure
to borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the interest
rate payable on such deposit were equal to the Adjusted LIBO Rate for such
Interest Period, over (ii) the amount of interest that such Lender would earn
on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by
such Lender (or an affiliate of such Lender) for dollar deposits from other
banks in the eurodollar market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
SECTION II.15. Taxes. (a) Any and all payments by or on
account of any obligation of the Company hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Company shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions
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applicable to additional sums payable under this Section) the Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
IN ADDITION, THE COMPANY SHALL PAY ANY OTHER TAXES TO THE RELEVANT
GOVERNMENTAL AUTHORITY IN ACCORDANCE WITH APPLICABLE LAW.
THE COMPANY SHALL INDEMNIFY THE ADMINISTRATIVE AGENT AND EACH LENDER, WITHIN
10 DAYS AFTER WRITTEN DEMAND THEREFOR, FOR THE FULL AMOUNT OF ANY INDEMNIFIED
TAXES OR OTHER TAXES (INCLUDING INDEMNIFIED TAXES OR OTHER TAXES IMPOSED OR
ASSERTED ON OR ATTRIBUTABLE TO AMOUNTS PAYABLE UNDER THIS SECTION) PAID BY THE
ADMINISTRATIVE AGENT OR SUCH LENDER, AS THE CASE MAY BE, AND ANY PENALTIES,
INTEREST AND REASONABLE EXPENSES ARISING THEREFROM OR WITH RESPECT THERETO,
WHETHER OR NOT SUCH INDEMNIFIED TAXES OR OTHER TAXES WERE CORRECTLY OR LEGALLY
IMPOSED OR ASSERTED BY THE RELEVANT GOVERNMENTAL AUTHORITY. A CERTIFICATE AS
TO THE AMOUNT OF SUCH PAYMENT OR LIABILITY DELIVERED TO THE COMPANY BY A
LENDER, OR BY THE ADMINISTRATIVE AGENT ON ITS OWN BEHALF OR ON BEHALF OF A
LENDER, SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR.
AS SOON AS PRACTICABLE AFTER ANY PAYMENT OF INDEMNIFIED TAXES OR OTHER TAXES
BY THE COMPANY TO A GOVERNMENTAL AUTHORITY, THE COMPANY SHALL DELIVER TO THE
ADMINISTRATIVE AGENT THE ORIGINAL OR A CERTIFIED COPY OF A RECEIPT ISSUED BY
SUCH GOVERNMENTAL AUTHORITY EVIDENCING SUCH PAYMENT, A COPY OF THE RETURN
REPORTING SUCH PAYMENT OR OTHER EVIDENCE OF SUCH PAYMENT REASONABLY
SATISFACTORY TO THE ADMINISTRATIVE AGENT.
ANY FOREIGN LENDER THAT IS ENTITLED TO AN EXEMPTION FROM OR REDUCTION OF
WITHHOLDING TAX UNDER THE LAW OF THE JURISDICTION IN WHICH THE COMPANY IS
LOCATED, OR ANY TREATY TO WHICH SUCH JURISDICTION IS A PARTY, WITH RESPECT TO
PAYMENTS UNDER THIS AGREEMENT SHALL, UPON REQUEST OF THE COMPANY, DELIVER TO
THE COMPANY (WITH A COPY TO THE ADMINISTRATIVE AGENT), AT THE TIME OR TIMES
PRESCRIBED BY APPLICABLE LAW OR REASONABLY REQUESTED BY THE COMPANY, SUCH
PROPERLY COMPLETED AND EXECUTED DOCUMENTATION PRESCRIBED BY APPLICABLE LAW AS
WILL PERMIT SUCH PAYMENTS TO BE MADE WITHOUT WITHHOLDING OR AT A REDUCED RATE.
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SECTION II.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Company shall make each payment required to be
made by it hereunder (whether of principal, interest or fees, or under Section
2.13, 2.14 or 2.15, or otherwise) prior to 12:00 Noon, New York City time, on
the date when due in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at One
Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, except that
payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in dollars.
IF AT ANY TIME INSUFFICIENT FUNDS ARE RECEIVED BY AND AVAILABLE TO THE
ADMINISTRATIVE AGENT TO PAY FULLY ALL AMOUNTS OF PRINCIPAL, INTEREST AND FEES
THEN DUE HEREUNDER, SUCH FUNDS SHALL BE APPLIED (i) FIRST, TO PAY INTEREST AND
FEES THEN DUE HEREUNDER, RATABLY AMONG THE PARTIES ENTITLED THERETO IN
ACCORDANCE WITH THE AMOUNTS OF INTEREST AND FEES THEN DUE TO SUCH PARTIES, AND
(ii) SECOND, TO PAY PRINCIPAL THEN DUE HEREUNDER, RATABLY AMONG THE PARTIES
ENTITLED THERETO IN ACCORDANCE WITH THE AMOUNTS OF PRINCIPAL THEN DUE TO SUCH
PARTIES.
IF ANY LENDER SHALL, BY EXERCISING ANY RIGHT OF SET-OFF OR COUNTERCLAIM OR
OTHERWISE, OBTAIN PAYMENT IN RESPECT OF ANY PRINCIPAL OF OR INTEREST ON ANY OF
ITS REVOLVING LOANS RESULTING IN SUCH LENDER RECEIVING PAYMENT OF A GREATER
PROPORTION OF THE AGGREGATE AMOUNT OF ITS REVOLVING LOANS AND ACCRUED INTEREST
THEREON THAN THE PROPORTION RECEIVED BY ANY OTHER LENDER, THEN THE LENDER
RECEIVING SUCH GREATER PROPORTION SHALL PURCHASE (FOR CASH AT FACE VALUE)
PARTICIPATIONS IN THE REVOLVING LOANS OF OTHER LENDERS TO THE EXTENT NECESSARY
SO THAT THE BENEFIT OF ALL SUCH PAYMENTS SHALL BE SHARED BY THE LENDERS
RATABLY IN ACCORDANCE WITH THE AGGREGATE AMOUNT OF PRINCIPAL OF AND ACCRUED
INTEREST ON THEIR RESPECTIVE REVOLVING LOANS; PROVIDED THAT (i) IF ANY SUCH
PARTICIPATIONS ARE PURCHASED AND ALL OR ANY PORTION OF THE PAYMENT GIVING RISE
THERETO IS RECOVERED, SUCH PARTICIPATIONS SHALL BE RESCINDED AND THE PURCHASE
PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY, WITHOUT INTEREST, AND (ii) THE
PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO APPLY TO ANY PAYMENT
MADE BY THE COMPANY PURSUANT TO AND IN ACCORDANCE WITH THE EXPRESS TERMS OF
THIS AGREEMENT OR ANY PAYMENT OBTAINED BY A LENDER AS CONSIDERATION FOR THE
ASSIGNMENT OF OR SALE OF A PARTICIPATION IN ANY OF ITS LOANS TO ANY ASSIGNEE
OR PARTICIPANT, OTHER THAN TO THE
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COMPANY OR ANY SUBSIDIARY OR AFFILIATE THEREOF (AS TO WHICH THE PROVISIONS OF
THIS PARAGRAPH SHALL APPLY). THE COMPANY CONSENTS TO THE FOREGOING AND AGREES,
TO THE EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT ANY LENDER
ACQUIRING A PARTICIPATION PURSUANT TO THE FOREGOING ARRANGEMENTS MAY EXERCISE
AGAINST THE COMPANY RIGHTS OF SET-OFF AND COUNTERCLAIM WITH RESPECT TO SUCH
PARTICIPATION AS FULLY AS IF SUCH LENDER WERE A DIRECT CREDITOR OF THE COMPANY
IN THE AMOUNT OF SUCH PARTICIPATION.
UNLESS THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM THE COMPANY
PRIOR TO THE DATE ON WHICH ANY PAYMENT IS DUE TO THE ADMINISTRATIVE AGENT FOR
THE ACCOUNT OF THE LENDERS HEREUNDER THAT THE COMPANY WILL NOT MAKE SUCH
PAYMENT, THE ADMINISTRATIVE AGENT MAY ASSUME THAT THE COMPANY HAS MADE SUCH
PAYMENT ON SUCH DATE IN ACCORDANCE HEREWITH AND MAY, IN RELIANCE UPON SUCH
ASSUMPTION, DISTRIBUTE TO THE LENDERS THE AMOUNT DUE. IN SUCH EVENT, IF THE
COMPANY HAS NOT IN FACT MADE SUCH PAYMENT, THEN EACH OF THE LENDERS SEVERALLY
AGREES TO REPAY TO THE ADMINISTRATIVE AGENT FORTHWITH ON DEMAND THE AMOUNT SO
DISTRIBUTED TO SUCH LENDER WITH INTEREST THEREON, FOR EACH DAY FROM AND
INCLUDING THE DATE SUCH AMOUNT IS DISTRIBUTED TO IT TO BUT EXCLUDING THE DATE
OF PAYMENT TO THE ADMINISTRATIVE AGENT, AT THE FEDERAL FUNDS EFFECTIVE RATE.
IF ANY LENDER SHALL FAIL TO MAKE ANY PAYMENT REQUIRED TO BE MADE BY IT
PURSUANT TO SECTION 2.05(b) OR 2.16(d), THEN THE ADMINISTRATIVE AGENT MAY, IN
ITS DISCRETION (NOTWITHSTANDING ANY CONTRARY PROVISION HEREOF), APPLY ANY
AMOUNTS THEREAFTER RECEIVED BY THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF
SUCH LENDER TO SATISFY SUCH LENDER'S OBLIGATIONS UNDER SUCH SECTIONS UNTIL ALL
SUCH UNSATISFIED OBLIGATIONS ARE FULLY PAID.
SECTION II.17. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.13, or if the
Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
IF ANY LENDER REQUESTS COMPENSATION UNDER SECTION 2.13, OR IF THE COMPANY IS
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REQUIRED TO PAY ANY ADDITIONAL AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL
AUTHORITY FOR THE ACCOUNT OF ANY LENDER PURSUANT TO SECTION 2.15, OR IF ANY
LENDER DEFAULTS IN ITS OBLIGATION TO FUND LOANS HEREUNDER, THEN THE COMPANY
MAY, AT ITS SOLE EXPENSE AND EFFORT, UPON NOTICE TO SUCH LENDER AND THE
ADMINISTRATIVE AGENT, REQUIRE SUCH LENDER TO ASSIGN AND DELEGATE, WITHOUT
RECOURSE (IN ACCORDANCE WITH AND SUBJECT TO THE RESTRICTIONS CONTAINED IN
SECTION 9.04), ALL ITS INTERESTS, RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
(OTHER THAN ANY OUTSTANDING COMPETITIVE LOANS HELD BY IT) TO AN ASSIGNEE THAT
SHALL ASSUME SUCH OBLIGATIONS (WHICH ASSIGNEE MAY BE ANOTHER LENDER, IF A
LENDER ACCEPTS SUCH ASSIGNMENT); PROVIDED THAT (i) THE COMPANY SHALL HAVE
RECEIVED THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT, WHICH CONSENT
SHALL NOT UNREASONABLY BE WITHHELD, (ii) SUCH LENDER SHALL HAVE RECEIVED
PAYMENT OF AN AMOUNT EQUAL TO THE OUTSTANDING PRINCIPAL OF ITS LOANS (OTHER
THAN COMPETITIVE LOANS), ACCRUED INTEREST THEREON, ACCRUED FEES AND ALL OTHER
AMOUNTS PAYABLE TO IT HEREUNDER, FROM THE ASSIGNEE (TO THE EXTENT OF SUCH
OUTSTANDING PRINCIPAL AND ACCRUED INTEREST AND FEES) OR THE COMPANY (IN THE
CASE OF ALL OTHER AMOUNTS) AND (iii) IN THE CASE OF ANY SUCH ASSIGNMENT
RESULTING FROM A CLAIM FOR COMPENSATION UNDER SECTION 2.13 OR PAYMENTS
REQUIRED TO BE MADE PURSUANT TO SECTION 2.15, SUCH ASSIGNMENT WILL RESULT IN A
REDUCTION IN SUCH COMPENSATION OR PAYMENTS. A LENDER SHALL NOT BE REQUIRED TO
MAKE ANY SUCH ASSIGNMENT AND DELEGATION IF, PRIOR THERETO, AS A RESULT OF A
WAIVER BY SUCH LENDER OR OTHERWISE, THE CIRCUMSTANCES ENTITLING THE COMPANY TO
REQUIRE SUCH ASSIGNMENT AND DELEGATION CEASE TO APPLY.
SECTION II.18. Extension of Initial Maturity Date. The
Company may, by written notice to the Administrative Agent no less than 30
days nor more than 40 days prior to the Initial Maturity Date, elect that the
Initial Maturity Date for no more than $500,000,000 of the outstanding amount
of Loans drawn hereunder be extended to a date which is 364 days after the
Initial Maturity Date. Upon receipt of such notice, the Administrative Agent
shall promptly give notice to each Lender of the Company's election to extend
the Initial Maturity Date. During the period that the Initial Maturity Date is
extended, any Loans repaid or prepaid by the Company may not be reborrowed.
ARTICLE III
Representations and Warranties
The Company represents and warrants to each of the Lenders
as follows (which representations and warranties will be deemed made by the
Company on the date of each Borrowing by the Company hereunder, the date of
conversion or continuation of any Interest Period with respect to any Loan
pursuant to Section 2.06 and each Interest Payment Date in respect of any ABR
Loan):
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SECTION III.1. Corporate Existence and Power; Compliance
with Law. The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation. The Company
is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, does not constitute a Material
Adverse Effect.
SECTION III.2. Corporate Authority. The execution, delivery
and performance by the Company of this Agreement and each Note executed by the
Company have been duly authorized by all necessary corporate action and are
within the Company's corporate power, do not require the approval of the
shareholders of the Company, and will not violate any provision of law or of
its certificate of incorporation or other constitutive document or by-laws, or
result in the breach of or constitute a default or require any consent under,
or result in the creation of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, any indenture or other agreement or
instrument to which the Company is a party or by which the Company or its
property may be bound or affected. The execution, delivery and performance by
the Company of this Agreement and each Note executed by the Company do not
require any license, consent or approval of or advance notice to or advance
filing with any governmental agency or regulatory authority or any other third
party, or if required, any such license, consent or approval shall have been
obtained and any such notice or filing shall have been made.
SECTION III.3. Enforceability. This Agreement is, and each
Note when delivered by the Company hereunder will be, duly executed and
delivered by the Company and does or will constitute the legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms except as enforceability may be limited
by general principles of equity and bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and by moratorium laws from
time to time in effect.
SECTION III.4. Financial Condition. The audited consolidated
financial statements of the Company for the fiscal year ended December 31,
1999, reported on by Ernst & Young, LLP, heretofore furnished to the Lenders
fairly present in all material respects the consolidated financial condition
of the Company and its Consolidated Subsidiaries as at the date thereof and
the results of their operations for the period covered thereby. The unaudited
interim consolidated financial statements of the Company for the quarterly
period ended September 30, 2000, heretofore furnished to the Lenders fairly
present in all material respects the consolidated financial condition of the
Company and its Consolidated Subsidiaries as at the date thereof and the
results of their operations for the period covered thereby (subject to normal
year-end audit adjustments). Said financial statements were prepared in
accordance with GAAP. Since December 31, 1999, there has been no Material
Adverse Effect.
SECTION III.5. Litigation. There are no suits or
proceedings (including proceedings by or before any arbitrator, government
commission, board, bureau or other
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administrative agency) pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Consolidated Subsidiaries that
constitute a Material Adverse Effect.
SECTION III.6. ERISA. The Company has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each employee benefit plan of the Company subject to such standards
and is in compliance in all material respects with the applicable provisions
of ERISA, and has not incurred any liability to the PBGC or any employee
benefit plan of the Company under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
SECTION III.7. Environmental Matters. Each of the Company
and its Consolidated Subsidiaries has obtained all permits, licenses and other
authorizations which are required under all Environmental Laws, including laws
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without limitation,
ambient air, surface water, ground water or land), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemical, or industrial,
toxic or hazardous substances or wastes, except to the extent failure to have
any such permit, license or authorization does not constitute a Material
Adverse Effect. The Company and its Consolidated Subsidiaries are in
compliance with all terms and conditions of all required permits, licenses and
authorizations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables, contained in those laws or contained in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the
extent failure to comply does not constitute a Material Adverse Effect.
SECTION III.8. Federal Regulations. No part of the
proceeds of any Loans will be used for any purpose which violates the
provisions of the Regulations of the Board including, without limitation,
Regulations T, U and X of the Board as in effect from time to time.
SECTION III.9. Investment and Holding Company Status.
Neither the Company nor any of its Consolidated Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION III.10. Scheduled Debt. Schedule 3.10 sets out all
of the Debt for borrowed money of the Consolidated Subsidiaries of Company as
of the date hereof which the Company, having made all due inquiry is, at the
date hereof, aware (the "Scheduled Debt").
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ARTICLE IV
Conditions
CONDITIONS TO THIRD AMENDED AND RESTATED EFFECTIVE DATE. The obligations of
the Lenders to make Revolving Loans to the Company shall not become effective
until the date on which each of the following conditions are satisfied (or
waived in accordance with Section 9.02):
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED AT
LEAST ONE EXECUTED COUNTERPART OF THIS AGREEMENT AND THE FACILITY B CREDIT
AGREEMENT FROM THE COMPANY, THE AGENTS AND THE LENDERS, TOGETHER WITH
ARRANGEMENTS SATISFACTORY TO THE SYNDICATION AGENT AND THE ADMINISTRATIVE
AGENT FOR ADDITIONAL EXECUTED COUNTERPARTS, SUFFICIENT IN NUMBER FOR
DISTRIBUTION TO THE LENDERS AND THE COMPANY, TOGETHER WITH ALL EXHIBITS
THERETO;
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A
FAVORABLE WRITTEN OPINION (ADDRESSED TO THE SYNDICATION AGENT, THE
ADMINISTRATIVE AGENT AND THE LENDERS AND DATED THE THIRD AMENDED AND RESTATED
EFFECTIVE DATE) OF J. XXXXXXX XXXXXXX, GENERAL COUNSEL TO THE COMPANY,
SUBSTANTIALLY IN THE FORM OF EXHIBIT C;
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
DOCUMENTS AND CERTIFICATES RELATING TO THE ORGANIZATION, EXISTENCE AND GOOD
STANDING OF THE COMPANY, THE AUTHORIZATION OF THE TRANSACTIONS, THE INCUMBENCY
OF THE PERSONS EXECUTING THIS AGREEMENT ON BEHALF OF THE COMPANY AND ANY OTHER
LEGAL MATTERS RELATING TO THE COMPANY, THIS AGREEMENT OR THE TRANSACTIONS AS
REASONABLY REQUESTED BY THE LENDERS, ALL IN FORM AND SUBSTANCE SATISFACTORY TO
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT;
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A
CERTIFICATE, DATED THE THIRD AMENDED AND RESTATED EFFECTIVE DATE AND SIGNED BY
THE PRESIDENT, A VICE PRESIDENT OR A FINANCIAL OFFICER OF THE COMPANY,
CONFIRMING COMPLIANCE WITH THE CONDITIONS SET FORTH IN PARAGRAPHS (a) AND (b)
OF SECTION 4.02;
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT AND EACH LENDER (AND ITS
AFFILIATES) SHALL HAVE RECEIVED ALL FEES AND OTHER AMOUNTS DUE AND PAYABLE ON
OR
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PRIOR TO THE THIRD AMENDED AND RESTATED EFFECTIVE DATE, INCLUDING, TO THE
EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES
REQUIRED TO BE REIMBURSED OR PAID BY THE COMPANY HEREUNDER;
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
EVIDENCE FROM THE ADMINISTRATIVE AGENT UNDER THE EXISTING CREDIT AGREEMENT
THAT ALL LOANS OUTSTANDING UNDER THE EXISTING CREDIT AGREEMENT SHALL HAVE BEEN
REPAID, ALL COMMITMENTS THEREUNDER SHALL HAVE BEEN TERMINATED AND THE EXISTING
CREDIT AGREEMENT ITSELF SHALL HAVE BEEN CANCELLED AND COMPANY SHALL DELIVER A
TERMINATION NOTICE TO THE ADMINISTRATIVE AGENT UNDER THE EXISTING CREDIT
AGREEMENT AT LEAST THREE BUSINESS DAYS PRIOR TO THE THIRD AMENDED AND RESTATED
EFFECTIVE DATE NOTIFYING THE ADMINISTRATIVE AGENT THEREUNDER THAT THE EXISTING
CREDIT AGREEMENT SHALL BE TERMINATED UPON THE THIRD AMENDED AND RESTATED
EFFECTIVE DATE;
THE OFFER SHALL HAVE IRREVOCABLY LAPSED AND THE COMPANY SHALL HAVE NO
OBLIGATION TO ACQUIRE THE TARGET OR ANY SECURITIES THEREOF;
THE LENDERS SHALL HAVE RECEIVED COPIES OF AND SHALL BE REASONABLY SATISFIED,
IN FORM AND SUBSTANCE, WITH THE FINANCIAL STATEMENTS REFERRED TO IN SECTION
3.04, CERTIFIED BY A FINANCIAL OFFICER OF THE COMPANY; AND
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, WITH A
COPY FOR EACH LENDER, A CERTIFICATE OF AN OFFICER OF THE COMPANY ACCEPTABLE TO
THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT STATING THAT ALL CONSENTS,
AUTHORIZATIONS, NOTICES AND FILINGS REQUIRED OR ADVISABLE IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS ARE IN FULL FORCE AND EFFECT, EXCEPT FOR
SUCH CONSENTS, AUTHORIZATIONS, NOTICES AND FILINGS WHICH IF NOT IN FULL FORCE
OR EFFECT WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT,
AND THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
EVIDENCE THEREOF REASONABLY SATISFACTORY TO IT.
CONDITIONS TO EACH BORROWING. The obligation of each Lender to make a Loan to
the Company on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
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THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN THIS AGREEMENT
SHALL BE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH BORROWING.
AT THE TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH BORROWING, NO
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
Each Borrowing by the Company shall be deemed to constitute a representation
and warranty by the Company on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full, the Company covenants and agrees with the
Lenders that:
SECTION V.1. Financial Statements and Other Information.
The Company will furnish to each Lender:
AS SOON AS AVAILABLE AND IN ANY EVENT WITHIN 100 DAYS AFTER THE END OF EACH OF
ITS FISCAL YEARS, A COPY OF THE COMPANY'S FORM 10-K FOR SUCH FISCAL YEAR FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION CONTAINING A CONSOLIDATED BALANCE
SHEET AS AT THE CLOSE OF SUCH FISCAL YEAR, STATEMENTS OF CONSOLIDATED INCOME
AND RETAINED EARNINGS AND A STATEMENT OF CONSOLIDATED CASH FLOWS FOR SUCH
YEAR, SETTING FORTH IN COMPARATIVE FORM THE CORRESPONDING FIGURES FOR THE
PRECEDING FISCAL YEAR AND CERTIFIED BY ERNST & YOUNG, LLP, OR OTHER
INDEPENDENT PUBLIC ACCOUNTANTS SELECTED BY THE COMPANY AND SATISFACTORY TO THE
LENDERS (AND, IN THE EVENT ANY SUCH FINANCIAL STATEMENTS SHALL NO LONGER BE
REQUIRED TO BE INCLUDED IN THE COMPANY'S FORM 10-K, THE COMPANY SHALL
NEVERTHELESS FURNISH SUCH FINANCIAL STATEMENTS);
AS SOON AS AVAILABLE AND IN ANY EVENT WITHIN 60 DAYS AFTER THE END OF EACH OF
THE FIRST THREE QUARTERS OF EACH OF ITS FISCAL YEARS, A COPY OF THE COMPANY'S
FORM 10-Q FOR EACH SUCH QUARTER FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION CONTAINING A CONSOLIDATED BALANCE SHEET AS AT THE END OF SUCH
QUARTER, A STATEMENT OF CONSOLIDATED INCOME AND A STATEMENT OF CONSOLIDATED
CASH FLOWS FOR SUCH PERIOD, PREPARED ON A BASIS CONSISTENT WITH THE
CORRESPONDING PERIOD OF THE
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PRECEDING FISCAL YEAR, EXCEPT AS DISCLOSED IN SAID FINANCIAL STATEMENTS OR
OTHERWISE DISCLOSED TO THE LENDERS IN WRITING, AND CERTIFIED BY A FINANCIAL
OFFICER OF THE COMPANY, SUBJECT HOWEVER, TO YEAR-END AND AUDIT ADJUSTMENTS
(AND, IN THE EVENT SUCH FINANCIAL STATEMENTS OF THE COMPANY SHALL NO LONGER BE
REQUIRED TO BE INCLUDED IN FORM 10-Q, THE COMPANY SHALL NEVERTHELESS FURNISH
SUCH FINANCIAL STATEMENTS);
WITHIN 120 DAYS AFTER THE END OF EACH FISCAL YEAR OF THE COMPANY, A
CERTIFICATE OF THE INDEPENDENT PUBLIC ACCOUNTANTS REFERRED TO IN PARAGRAPH (a)
ABOVE AS TO WHETHER, DURING THE COURSE OF THEIR EXAMINATION OF THE COMPANY'S
FINANCIAL STATEMENTS, THEY OBTAINED ANY KNOWLEDGE OF ANY DEFAULT, INSOFAR AS
SUCH DEFAULT INVOLVES ACCOUNTING MATTERS;
WITHIN 120 DAYS AFTER THE END OF EACH FISCAL YEAR OF THE COMPANY AND WITHIN 60
DAYS AFTER THE END OF EACH OF THE FIRST THREE QUARTERS OF EACH FISCAL YEAR OF
THE COMPANY, A STATEMENT, SIGNED BY A FINANCIAL OFFICER OF THE COMPANY,
SETTING FORTH THE COMPUTATIONS OF THE COMPANY CAPITALIZATION RATIO AND THE
COMPANY SUBSIDIARY DEBT RATIO AS OF THE END OF EACH SUCH FISCAL YEAR AND EACH
SUCH QUARTER;
PROMPTLY AFTER THE SENDING OR FILING THEREOF, COPIES OF ALL PROXY STATEMENTS,
FINANCIAL STATEMENTS AND REGULAR OR SPECIAL REPORTS (OTHER THAN REPORTS ON
FORM 10-K AND FORM 10-Q BUT INCLUDING THOSE ON FORM 8-K) AND REGISTRATION
STATEMENTS UNDER THE SECURITIES ACT OF 1933, AS AMENDED (OTHER THAN THOSE ON
FORM S-8 OR ANY SUCCESSOR FORM RELATING TO THE REGISTRATION OF SECURITIES
OFFERED PURSUANT TO ANY EMPLOYEE BENEFIT PLAN) WHICH THE COMPANY SENDS TO ITS
STOCKHOLDERS OR FILES WITH THE SECURITIES AND EXCHANGE COMMISSION (OR ANY
SUCCESSOR GOVERNMENTAL AUTHORITY);
AS SOON AS AVAILABLE AND IN ANY EVENT WITHIN 120 DAYS AFTER THE END OF EACH
FISCAL YEAR OF THE COMPANY, A CONSOLIDATING BALANCE SHEET OF THE COMPANY AND
ITS CONSOLIDATED SUBSIDIARIES AS AT THE CLOSE OF SUCH FISCAL YEAR AND
CONSOLIDATING STATEMENTS OF INCOME AND RETAINED EARNINGS OF THE COMPANY AND
ITS CONSOLIDATED SUBSIDIARIES FOR SUCH YEAR; AND
FROM TIME TO TIME SUCH FURTHER INFORMATION REGARDING THE BUSINESS, AFFAIRS AND
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FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES AS THE LENDERS SHALL
REASONABLY REQUEST.
SECTION V.2. Notices of Material Events. The Company will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
THE OCCURRENCE OF ANY DEFAULT;
THE FILING OR COMMENCEMENT OF ANY ACTION, SUIT OR PROCEEDING BY OR BEFORE ANY
ARBITRATOR OR GOVERNMENTAL AUTHORITY AGAINST OR AFFECTING THE COMPANY OR ANY
AFFILIATE THEREOF THAT CONSTITUTES A MATERIAL ADVERSE EFFECT; AND
ANY OTHER DEVELOPMENT THAT CONSTITUTES A MATERIAL ADVERSE EFFECT.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION V.3. Existence; Conduct of Business. The Company will,
and will cause each of its Consolidated Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises
necessary to the conduct of its business, except, in the case of the legal
existence of any such Consolidated Subsidiary or any such right, license,
permit, privilege or franchise, where the failure to so preserve, renew and keep
in full force and effect does not constitute a Material Adverse Effect; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION V.4. Compliance with Contractual Obligations. The Company
will, and will cause each of its Consolidated Subsidiaries to comply with all
its Contractual Obligations except to the extent that failure to comply
therewith does not, in the aggregate, constitute a Material Adverse Effect.
SECTION V.5. Insurance. The Company will, and will cause each of
its Consolidated Subsidiaries to, maintain in full force and effect such
policies of insurance in such amounts issued by insurers of recognized
responsibility covering the properties and operations of the Company and its
Consolidated Subsidiaries as is customarily maintained by corporations engaged
in the same or similar business in the localities where the properties and
operations are located, including but not limited to insurance in connection
with the disposal, handling, storage,
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transportation or generation of hazardous materials; provided, however, that
nothing shall prevent the Company or any of its Consolidated Subsidiaries from
effecting workers' compensation or similar insurance in respect of operations in
any state or other jurisdiction through an insurance fund operated by such state
or jurisdiction or from maintaining a system or systems of self-insurance
covering its properties or operations as provided above to the extent that such
self-insurance is customarily effected by corporations engaged in the same or
similar businesses similarly situated and is otherwise prudent in the
circumstances.
SECTION V.6. Compliance with Laws. The Company will, and will
cause each of its Consolidated Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
does not constitute a Material Adverse Effect.
SECTION V.7. Use of Proceeds. The proceeds of the Loans will be
applied by the Company:
(a) to repay amounts outstanding under the Existing Credit
Agreement and to refinance amounts outstanding from time to time under the
Company's commercial paper program; and
(b) to meet part of the working capital and general corporate
requirements of the Company and its Subsidiaries.
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations T, U and X of the Board as in effect from
time to time.
ARTICLE VI
Negative Covenants
The Company covenants and agrees with the Lenders that until the
Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder by the Company have been paid in full:
FINANCIAL COVENANT. The Company shall not permit the Company Capitalization
Ratio to exceed 62.5%.
LIENS. The Company will not, and will not permit any of its Consolidated
Subsidiaries
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to, create, incur, assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
PERMITTED ENCUMBRANCES;
ANY LIEN ON ANY PROPERTY OR ASSET OF THE COMPANY OR ANY OF ITS CONSOLIDATED
SUBSIDIARIES EXISTING ON THE DATE HEREOF AND SET FORTH IN SCHEDULE 6.02;
PROVIDED THAT (i) SUCH LIEN SHALL NOT APPLY TO ANY OTHER PROPERTY OR ASSET OF
THE COMPANY OR ANY OF ITS CONSOLIDATED SUBSIDIARIES AND (ii) SUCH LIEN SHALL
SECURE ONLY THOSE OBLIGATIONS WHICH IT SECURES ON THE DATE HEREOF AND
EXTENSIONS, RENEWALS AND REPLACEMENTS THEREOF THAT DO NOT INCREASE THE
OUTSTANDING PRINCIPAL AMOUNT THEREOF;
ANY LIEN EXISTING ON ANY PROPERTY OR ASSET PRIOR TO THE ACQUISITION THEREOF BY
THE COMPANY OR ANY OF ITS CONSOLIDATED SUBSIDIARIES OR EXISTING ON ANY PROPERTY
OR ASSET OF ANY PERSON THAT BECOMES A CONSOLIDATED SUBSIDIARY AFTER THE DATE
HEREOF PRIOR TO THE TIME SUCH PERSON BECOMES A CONSOLIDATED SUBSIDIARY; PROVIDED
THAT (i) SUCH LIEN IS NOT CREATED IN CONTEMPLATION OF OR IN CONNECTION WITH SUCH
ACQUISITION OR SUCH PERSON BECOMING A CONSOLIDATED SUBSIDIARY, (ii) SUCH LIEN
SHALL NOT APPLY TO ANY OTHER PROPERTY OR ASSETS OF THE COMPANY OR ANY OF ITS
CONSOLIDATED SUBSIDIARIES AND (iii) SUCH LIEN SHALL SECURE ONLY THOSE
OBLIGATIONS WHICH IT SECURES ON THE DATE OF SUCH ACQUISITION OR THE DATE SUCH
PERSON BECOMES A CONSOLIDATED SUBSIDIARY, AND EXTENSIONS, RENEWALS AND
REPLACEMENTS THEREOF THAT DO NOT INCREASE THE OUTSTANDING PRINCIPAL AMOUNT
THEREOF;
LIENS SECURING OR CONSISTING OF DEBT OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES INCURRED TO FINANCE THE ACQUISITION OF FIXED OR CAPITAL ASSETS;
PROVIDED THAT (i) SUCH LIENS SHALL BE CREATED SUBSTANTIALLY SIMULTANEOUSLY WITH
SUCH ACQUISITION, (ii) SUCH LIENS SECURING SUCH DEBT DO NOT AT ANY TIME ENCUMBER
ANY PROPERTY OTHER THAN THE PROPERTY FINANCED BY SUCH DEBT AND (iii) THE
PRINCIPAL AMOUNT OF DEBT SECURED BY ANY SUCH LIEN SHALL AT NO TIME EXCEED 100%
OF THE ORIGINAL PURCHASE PRICE OF SUCH ASSETS (IN THE CASE OF A PURCHASE) OR
FAIR VALUE OF SUCH PROPERTY AT THE TIME IT WAS ACQUIRED (IN ALL OTHER CASES);
LIENS TO SECURE DEBT OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES NOT
OTHERWISE PERMITTED BY THIS SECTION 6.02, TO THE EXTENT THAT THE AGGREGATE DEBT
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SECURED THEREBY DOES NOT EXCEED 15% OF THE CONSOLIDATED NET TANGIBLE ASSETS OF
THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES;
LIENS ON ASSETS OF ANY CONSOLIDATED SUBSIDIARY OF THE COMPANY SECURING
INDEBTEDNESS OWED TO THE COMPANY OR ANY OTHER CONSOLIDATED SUBSIDIARY OF THE
COMPANY.
SECTION VI.8. Fundamental Changes. (a) The Company will not
consolidate with or merge into any other Person, or permit any Person to merge
or consolidate into it, or make any sale or other disposition of all or
substantially all of its assets to, or acquire substantially all of the assets
of, any other Person, or liquidate or dissolve unless:
THE SURVIVOR OF ANY SUCH MERGER OR CONSOLIDATION OR THE PURCHASER OR ACQUIROR OF
SUCH ASSETS SHALL BE A CORPORATION INCORPORATED UNDER THE LAWS XX XXX XX XXX
XXXXXX XX XXX XXXXXX XXXXXX AND NOT MORE THAN 25% OF THE VOTING STOCK (ASSUMING
THE CONVERSION OF ALL CONVERTIBLE SECURITIES AND EXERCISE OF ALL OPTIONS, RIGHTS
OR WARRANTS) OF SUCH SURVIVOR OR SUCH PURCHASER SHALL BE OWNED BY SUCH OTHER
PERSON OR ITS OWNERS AND SHAREHOLDERS;
SUCH SURVIVOR OR SUCH PURCHASER (IF NOT THE COMPANY) SHALL EXPRESSLY ASSUME THE
OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT PURSUANT TO DOCUMENTATION IN
FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT; AND
AT THE TIME THEREOF AND IMMEDIATELY AFTER GIVING EFFECT THERETO NO DEFAULT SHALL
HAVE OCCURRED AND BE CONTINUING AND THE COMPANY SHALL HAVE FURNISHED THE
ADMINISTRATIVE AGENT WITH EVIDENCE OF COMPLIANCE WITH THE PROVISIONS OF THIS
SECTION 6.03.
THE COMPANY WILL NOT, AND WILL NOT PERMIT ANY OF ITS CONSOLIDATED SUBSIDIARIES
TO, ENGAGE TO ANY MATERIAL EXTENT IN ANY BUSINESS OTHER THAN ENERGY-RELATED
BUSINESSES.
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RESTRICTIVE AGREEMENTS. The Company will not, and will not permit any of its
Consolidated Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon the ability of any Significant Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Company.
FUTURE SUBSIDIARY GUARANTIES. The Company will not permit any Subsidiary to
Guaranty any other Debt of the Company unless such Subsidiary simultaneously
executes a guaranty agreement in a form and substance reasonably satisfactory to
the Administrative Agent for the Guaranty of the payment of the obligations
hereunder; provided, however, that the Company shall not be obligated to provide
any such Guaranty if the provision of such Guaranty would result in an adverse
Tax consequence to the Company or its Subsidiaries.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
THE COMPANY SHALL BE IN DEFAULT IN THE PAYMENT WHEN DUE OF ANY PRINCIPAL OF ANY
LOAN ON THE MATURITY DATE THEREOF;
THE COMPANY SHALL BE IN DEFAULT FOR FIVE DAYS IN THE PAYMENT WHEN DUE OF ANY
INTEREST ON ANY LOAN OR ANY OTHER AMOUNT (OTHER THAN PRINCIPAL) DUE HEREUNDER;
ANY REPRESENTATION OR WARRANTY MADE OR DEEMED MADE BY THE COMPANY IN ARTICLE III
OR IN ANY CERTIFICATE OF THE COMPANY FURNISHED TO THE SYNDICATION AGENT AND THE
ADMINISTRATIVE AGENT OR ANY LENDER HEREUNDER SHALL PROVE TO HAVE BEEN INCORRECT,
WHEN MADE OR DEEMED MADE, IN ANY MATERIAL RESPECT; PROVIDED, HOWEVER, THAT NO
SUCH REPRESENTATION OR WARRANTY CONTAINED IN SECTION 3.04 OR 3.05 SHALL BE
DEEMED TO HAVE BEEN INCORRECT WHEN MADE BY THE COMPANY BY REASON OF ANY FACTS OR
CIRCUMSTANCES DISCLOSED IN ANY FINANCIAL STATEMENTS OR REPORTS FURNISHED UNDER
SECTION 5.01 AND RECEIVED BY THE LENDERS NOT LATER THAN 45 DAYS PRIOR TO, OR
OTHERWISE SPECIFICALLY DISCLOSED IN WRITING TO THE LENDERS AT LEAST 15 DAYS
PRIOR TO, THE DATE SUCH REPRESENTATION AND WARRANTY IS MADE OR DEEMED TO BE MADE
IN CONNECTION WITH THE ENTERING INTO OF THIS AGREEMENT OR IN CONNECTION WITH THE
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MAKING OF A LOAN TO THE COMPANY OR THE OCCASION OF ANY BORROWING AS CONTEMPLATED
IN SECTION 4.02;
THE COMPANY SHALL BE IN DEFAULT IN THE PERFORMANCE OF (i) THE COVENANTS
CONTAINED IN SECTIONS 5.07, 6.01, 6.02, 6.03, 6.04 AND 6.05 FOR FIVE CONSECUTIVE
DAYS AFTER SUCH DEFAULT SHALL HAVE BECOME KNOWN TO THE COMPANY, (ii) ANY OTHER
COVENANT, CONDITION OR AGREEMENT CONTAINED IN THIS AGREEMENT FOR 30 CONSECUTIVE
DAYS AFTER SUCH DEFAULT SHALL HAVE BECOME KNOWN TO THE COMPANY;
ANY OBLIGATION OF THE COMPANY IN RESPECT OF ANY MATERIAL INDEBTEDNESS NOW OR
HEREAFTER OUTSTANDING SHALL BECOME DUE BY ITS TERMS WHETHER BY ACCELERATION OR
OTHERWISE AND SHALL NOT BE PAID, EXTENDED OR REFUNDED OR ANY DEFAULT OR EVENT OF
DEFAULT SHALL OCCUR IN RESPECT OF ANY SUCH OBLIGATION AND SHALL CONTINUE FOR A
PERIOD OF TIME SUFFICIENT TO CAUSE OR PERMIT THE ACCELERATION OF MATURITY
THEREOF, OR THE COMPANY SHALL FAIL TO PAY ANY SWAP PAYMENT OBLIGATION OF THE
COMPANY IN EXCESS OF $10,000,000 WHEN DUE AND PAYABLE (WHETHER BY ACCELERATION
OR OTHERWISE), UNLESS THE COMPANY IS CONTESTING SUCH SWAP PAYMENT OBLIGATION IN
GOOD FAITH BY APPROPRIATE PROCEEDINGS AND HAS SET ASIDE APPROPRIATE RESERVES
RELATING THERETO IN ACCORDANCE WITH GAAP; PROVIDED THAT IN THE CASE OF ANY
GUARANTIES, ENDORSEMENTS AND OTHER CONTINGENT OBLIGATIONS IN RESPECT OF ANY SUCH
OBLIGATION FOR BORROWED MONEY OF AN ENTITY OTHER THAN THE COMPANY (ALL OF THE
FOREGOING BEING HEREIN CALLED "ACCOMMODATION GUARANTY INDEBTEDNESS"), A DEFAULT
WITH RESPECT TO ANY EVIDENCE OF ACCOMMODATION GUARANTY INDEBTEDNESS OF THE
COMPANY OR UNDER ANY AGREEMENT UNDER WHICH ANY SUCH EVIDENCE OF ACCOMMODATION
GUARANTY INDEBTEDNESS MAY BE OUTSTANDING SHALL CONSTITUTE AN EVENT OF DEFAULT
HEREUNDER ONLY IF THERE SHALL HAVE BEEN A DEFAULT IN THE PERFORMANCE BY THE
COMPANY OF ITS OBLIGATIONS WITH RESPECT TO SUCH ACCOMMODATION GUARANTY
INDEBTEDNESS AND SUCH DEFAULT SHALL CONTINUE FOR MORE THAN 30 DAYS AFTER A
HOLDER OR BENEFICIARY OF SUCH ACCOMMODATION GUARANTY INDEBTEDNESS SHALL HAVE
DEMANDED THE PERFORMANCE OF SUCH OBLIGATION;
FINAL JUDGMENT FOR THE PAYMENT OF MONEY IN EXCESS OF $10,000,000 SHALL BE
RENDERED AGAINST THE COMPANY AND THE SAME SHALL REMAIN UNDISCHARGED FOR A PERIOD
OF 60 DAYS DURING WHICH THE JUDGMENT SHALL NOT BE ON APPEAL OR EXECUTION THEREOF
SHALL NOT BE EFFECTIVELY STAYED;
COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES SHALL (i) APPLY FOR OR CONSENT TO
THE APPOINTMENT OF A RECEIVER, TRUSTEE, ADMINISTRATOR OR LIQUIDATOR OF ITSELF OR
OF ALL OR A
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SUBSTANTIAL PART OF ITS ASSETS, (ii) BE UNABLE, OR ADMIT IN WRITING ITS
INABILITY OR FAILURE, TO PAY ITS DEBTS GENERALLY, (iii) MAKE A GENERAL
ASSIGNMENT FOR THE BENEFIT OF CREDITORS, (iv) BE ADJUDICATED A BANKRUPT OR
INSOLVENT, (v) COMMENCE ANY CASE, PROCEEDING OR OTHER ACTION UNDER ANY EXISTING
OR FUTURE LAW RELATING TO BANKRUPTCY, INSOLVENCY, REORGANIZATION OR RELIEF OF
DEBTORS SEEKING TO HAVE AN ORDER FOR RELIEF ENTERED WITH RESPECT TO IT, OR
SEEKING TO ADJUDICATE IT A BANKRUPT OR INSOLVENT, OR SEEKING REORGANIZATION,
ARRANGEMENT, ADJUSTMENT, WINDING UP, LIQUIDATION, DISSOLUTION, COMPOSITION OR
OTHER RELIEF WITH RESPECT TO IT OR ITS DEBTS OR AN ARRANGEMENT WITH CREDITORS OR
TAKING ADVANTAGE OF ANY INSOLVENCY LAW OR PROCEEDING FOR THE RELIEF OF DEBTORS,
OR FILE AN ANSWER ADMITTING THE MATERIAL ALLEGATIONS OF A PETITION FILED AGAINST
IT IN ANY BANKRUPTCY, REORGANIZATION OR INSOLVENCY PROCEEDING, OR (vi) TAKE
CORPORATE ACTION FOR THE PURPOSE OF EFFECTING ANY OF THE FOREGOING;
ANY CASE, PROCEEDING OR OTHER ACTION SHALL BE INSTITUTED IN ANY COURT OF
COMPETENT JURISDICTION, AGAINST COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES,
SEEKING IN RESPECT OF SUCH COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES
ADJUDICATION IN BANKRUPTCY, REORGANIZATION, DISSOLUTION, WINDING UP,
LIQUIDATION, ADMINISTRATION, A COMPOSITION OR ARRANGEMENT WITH CREDITORS, A
READJUSTMENT OF DEBTS, THE APPOINTMENT OF A TRUSTEE, RECEIVER, ADMINISTRATOR,
LIQUIDATOR OR THE LIKE OF SUCH COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES OR
OF ALL OR ANY SUBSTANTIAL PART OF ITS ASSETS, OR OTHER LIKE RELIEF IN RESPECT OF
SUCH COMPANY OR ANY OF ITS SIGNIFICANT SUBSIDIARIES UNDER ANY BANKRUPTCY OR
INSOLVENCY LAW AND SUCH CASE, PROCEEDING OR OTHER ACTION RESULTS IN AN ENTRY OF
AN ORDER FOR RELIEF OR ANY SUCH ADJUDICATION OR APPOINTMENT OR IF SUCH CASE,
PROCEEDING OR OTHER ACTION IS BEING CONTESTED BY SUCH COMPANY OR ANY OF ITS
SIGNIFICANT SUBSIDIARIES IN GOOD FAITH, THE SAME SHALL CONTINUE UNDISMISSED, OR
UNSTAYED AND IN EFFECT, FOR ANY PERIOD OF 60 CONSECUTIVE DAYS; OR
AT ANY TIME SUBSEQUENT TO DECEMBER 31, 1999 AND PRIOR TO THE MATURITY DATE,
CONTINUING DIRECTORS SHALL FAIL TO CONSTITUTE AT LEAST A MAJORITY OF THE BOARD
OF DIRECTORS OF THE COMPANY; FOR THE FOREGOING PURPOSE, THE TERM "CONTINUING
DIRECTORS" MEANS THOSE PERSONS WHO WERE DIRECTORS OF THE COMPANY ON DECEMBER 31,
1999 AND ANY PERSON WHOSE ELECTION OR NOMINATION FOR ELECTION AS A DIRECTOR OF
THE COMPANY AT ANY TIME SUBSEQUENT THERETO WAS APPROVED BY AT LEAST A MAJORITY
OF THE PERSONS WHO WERE THEN CONTINUING DIRECTORS;
then, and in every such event (other than an event described in clause (g) or
(h) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent shall, at the request of the Required Lenders,
by notice to the Company, take either or both of the
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following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of any of the Company accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company; and in case
of any event with respect to the Company described in clause (g) or (h) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Company accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Company.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any of its Subsidiaries
thereof or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken
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by it with the consent or at the request of the Required Lenders or all the
Lenders to the extent required by Section 9.02 or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Company or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Company), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint one of the Lenders a successor. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and in consultation with the Company, appoint one of the Lenders as a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of
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the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Syndication Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, the Syndication Agent or any other Lender and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
The Syndication Agent and the Documentation Agents shall not have
any duties or responsibilities hereunder in their capacity as such (except as
expressly set forth herein) and shall be entitled to the same rights and
privileges afforded to the Administrative Agent, in its capacity as such under
Article VIII.
ARTICLE IX
Miscellaneous
SECTION IX.1. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
IF TO THE COMPANY, TO AMERADA XXXX CORPORATION, 0000 XXXXXX XX XXX XXXXXXXX, XXX
XXXX, XXX XXXX 00000, ATTENTION OF TREASURER (TELECOPY NO. (000) 000-0000);
IF TO THE SYNDICATION AGENT, TO XXXXXXX SACHS CREDIT PARTNERS L.P., 00 XXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION OF XXXXXXX XXXX (TELECOPY NO. (212)
357-0932), WITH A COPY TO XXXXXXX XXXXX (TELECOPY NO. (000) 000-0000).
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(c) if to the Administrative Agent, to The Chase Manhattan
Bank, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of XxXxx XxXxxxxxx (Telecopy No. (000) 000-0000).
(d) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION IX.2. Waivers: Amendments. (a) No failure or delay by the
Syndication Agent and the Administrative Agent or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Syndication Agent and the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be permitted by this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
NEITHER THIS AGREEMENT NOR ANY PROVISION HEREOF MAY BE WAIVED, AMENDED OR
MODIFIED EXCEPT PURSUANT TO AN AGREEMENT OR AGREEMENTS IN WRITING ENTERED INTO
BY THE COMPANY AND THE REQUIRED LENDERS OR BY THE COMPANY AND THE ADMINISTRATIVE
AGENT WITH THE CONSENT OF THE REQUIRED LENDERS; PROVIDED THAT NO SUCH AGREEMENT
SHALL (i) INCREASE THE COMMITMENT OF ANY LENDER WITHOUT THE WRITTEN CONSENT OF
SUCH LENDER, (ii) REDUCE THE PRINCIPAL AMOUNT OF ANY LOAN OR REDUCE THE RATE OF
INTEREST THEREON, OR REDUCE ANY FEES PAYABLE HEREUNDER, WITHOUT THE WRITTEN
CONSENT OF EACH LENDER AFFECTED THEREBY, (iii) POSTPONE THE SCHEDULED DATE OF
PAYMENT OF THE PRINCIPAL AMOUNT OF ANY LOAN, OR ANY INTEREST THEREON, OR ANY
FEES OR ANY OTHER AMOUNT PAYABLE HEREUNDER, OR REDUCE THE AMOUNT OF, WAIVE OR
EXCUSE ANY SUCH PAYMENT, OR POSTPONE THE SCHEDULED DATE OF EXPIRATION OF ANY
COMMITMENT, WITHOUT THE WRITTEN CONSENT OF EACH LENDER AFFECTED THEREBY, (iv)
CHANGE SECTION 2.16(b) OR (c) IN A MANNER THAT WOULD ALTER THE PRO RATA SHARING
OF PAYMENTS REQUIRED THEREBY, WITHOUT THE WRITTEN CONSENT OF EACH LENDER, OR (v)
CHANGE ANY OF THE PROVISIONS OF THIS SECTION OR THE DEFINITION OF "REQUIRED
LENDERS" OR ANY OTHER PROVISION HEREOF SPECIFYING THE NUMBER OR PERCENTAGE OF
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LENDERS REQUIRED TO WAIVE, AMEND OR MODIFY ANY RIGHTS HEREUNDER OR MAKE ANY
DETERMINATION OR GRANT ANY CONSENT HEREUNDER, WITHOUT THE WRITTEN CONSENT OF
EACH LENDER; PROVIDED FURTHER THAT NO SUCH AGREEMENT SHALL AMEND, MODIFY OR
OTHERWISE AFFECT THE RIGHTS OR DUTIES OF THE ADMINISTRATIVE AGENT HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT.
SECTION ___ Expenses; Indemnity: Damage Waiver. (a) THE COMPANY AGREES TO PAY
(i) ALL REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY THE SYNDICATION AGENT AND
THE ADMINISTRATIVE AGENT AND THEIR AFFILIATES, INCLUDING THE REASONABLE FEES,
CHARGES AND DISBURSEMENTS OF COUNSEL FOR THE SYNDICATION AGENT AND THE
ADMINISTRATIVE AGENT, IN CONNECTION WITH THE SYNDICATION OF THE CREDIT
FACILITIES PROVIDED FOR HEREIN, THE PREPARATION AND ADMINISTRATION OF THIS
AGREEMENT AND THE PRIOR CREDIT AGREEMENTS OR ANY AMENDMENTS, MODIFICATIONS OR
WAIVERS OF THE PROVISIONS HEREOF (WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY SHALL BE CONSUMMATED) AND (ii) ALL OUT-OF-POCKET EXPENSES
INCURRED BY THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT OR ANY LENDER,
INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR THE SYNDICATION
AGENT AND THE ADMINISTRATIVE AGENT OR ANY LENDER, IN CONNECTION WITH THE
ENFORCEMENT OR PROTECTION OF ITS RIGHTS IN CONNECTION WITH THIS AGREEMENT,
INCLUDING ITS RIGHTS UNDER THIS SECTION, OR IN CONNECTION WITH THE LOANS MADE
HEREUNDER, INCLUDING IN CONNECTION WITH ANY WORKOUT, RESTRUCTURING OR
NEGOTIATIONS IN RESPECT THEREOF.
THE COMPANY AGREES TO INDEMNIFY THE SYNDICATION AGENT AND THE ADMINISTRATIVE
AGENT AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS
(EACH SUCH PERSON BEING CALLED AN "INDEMNITEE") AGAINST, AND HOLD EACH
INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND
RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS, OF ANY COUNSEL
FOR ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT
OF, IN CONNECTION WITH, OR AS A RESULT OF (i) THE EXECUTION OR DELIVERY OF THIS
AGREEMENT AND THE PRIOR CREDIT AGREEMENTS OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE
OBLIGATIONS HEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER
TRANSACTIONS CONTEMPLATED HEREBY, (ii) ANY LOAN OR THE USE OF THE PROCEEDS
THEREFROM, (iii) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE COMPANY
OR ANY OF ITS
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SUBSIDIARIES, OR (iv) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION
OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO;
PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES
ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH
INDEMNITEE OR FROM A BREACH OF THIS AGREEMENT BY SUCH INDEMNITEE.
TO THE EXTENT THAT THE COMPANY FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID BY IT
TO THE SYNDICATION AGENT AND THE ADMINISTRATIVE AGENT UNDER PARAGRAPH (a) OR (b)
OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE SYNDICATION AGENT
AND THE ADMINISTRATIVE AGENT SUCH LENDER'S APPLICABLE PERCENTAGE (DETERMINED AS
OF THE TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS
SOUGHT) OF SUCH UNPAID AMOUNT; PROVIDED THAT THE UNREIMBURSED EXPENSE OR
INDEMNIFIED LOSS, CLAIM, DAMAGE, LIABILITY OR RELATED EXPENSE, AS THE CASE MAY
BE, WAS INCURRED BY OR ASSERTED AGAINST THE SYNDICATION AGENT AND THE
ADMINISTRATIVE AGENT IN THEIR CAPACITY AS SUCH.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL NOT ASSERT, AND
HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR
ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS
AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS,
ANY LOAN OR THE USE OF THE PROCEEDS THEREOF.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE PROMPTLY AFTER WRITTEN
DEMAND THEREFOR.
SECTION IX.3. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Company may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any the Company without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Syndication Agent and
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
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ANY LENDER MAY ASSIGN TO ONE OR MORE ASSIGNEES ALL OR A PORTION OF ITS RIGHTS
AND OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ALL OR A PORTION OF ITS
COMMITMENT AND THE LOANS AT THE TIME OWING TO IT); PROVIDED THAT (i) EXCEPT IN
THE CASE OF AN ASSIGNMENT TO A LENDER OR AN AFFILIATE OF A LENDER, EACH OF THE
COMPANY (EXCEPT, UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT, THE CONSENT OF THE COMPANY SHALL NOT BE REQUIRED) AND THE
ADMINISTRATIVE AGENT MUST GIVE THEIR PRIOR WRITTEN CONSENT TO SUCH ASSIGNMENT
(WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), (ii) EXCEPT IN THE CASE OF
AN ASSIGNMENT TO A LENDER OR AN AFFILIATE OF A LENDER OR AN ASSIGNMENT OF THE
ENTIRE REMAINING AMOUNT OF THE ASSIGNING LENDER'S COMMITMENT, THE AMOUNT OF THE
COMMITMENT OF THE ASSIGNING LENDER SUBJECT TO EACH SUCH ASSIGNMENT (DETERMINED
AS OF THE DATE THE ASSIGNMENT AND ACCEPTANCE WITH RESPECT TO SUCH ASSIGNMENT IS
DELIVERED TO THE ADMINISTRATIVE AGENT) SHALL EACH NOT BE LESS THAN $5,000,000
UNLESS EACH OF THE COMPANY AND THE ADMINISTRATIVE AGENT OTHERWISE CONSENT, (iii)
EACH PARTIAL ASSIGNMENT SHALL BE MADE AS AN ASSIGNMENT OF A PROPORTIONATE PART
OF ALL THE ASSIGNING LENDER'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT,
EXCEPT THAT THIS CLAUSE (iii) SHALL NOT APPLY TO RIGHTS IN RESPECT OF
OUTSTANDING COMPETITIVE LOANS, (iv) THE PARTIES TO EACH ASSIGNMENT SHALL EXECUTE
AND DELIVER TO THE ADMINISTRATIVE AGENT AN ASSIGNMENT AND ACCEPTANCE, TOGETHER
(EXCEPT IN THE CASE OF AN ASSIGNMENT BY A LENDER TO ONE OF ITS AFFILIATES OR AN
ASSIGNMENT AS A RESULT OF ANY OF THE EVENTS CONTEMPLATED BY SECTION 2.17) WITH A
PROCESSING AND RECORDATION FEE OF $500 IN THE CASE OF ASSIGNMENTS MADE BY OR TO
SYNDICATION AGENT AND $2,000 IN THE CASE OF ALL OTHER ASSIGNMENTS, AND (v) THE
ASSIGNEE, IF IT SHALL NOT BE A LENDER, SHALL DELIVER TO THE ADMINISTRATIVE AGENT
AN ADMINISTRATIVE QUESTIONNAIRE; PROVIDED FURTHER THAT ANY CONSENT OF THE
COMPANY OTHERWISE REQUIRED UNDER THIS PARAGRAPH SHALL NOT BE REQUIRED IF AN
EVENT OF DEFAULT UNDER CLAUSE (g) OR (h) OF ARTICLE VII HAS OCCURRED AND IS
CONTINUING. UPON ACCEPTANCE AND RECORDING PURSUANT TO PARAGRAPH (d) OF THIS
SECTION, FROM AND AFTER THE EFFECTIVE DATE SPECIFIED IN EACH ASSIGNMENT AND
ACCEPTANCE, THE ASSIGNEE THEREUNDER SHALL BE A PARTY HERETO AND, TO THE EXTENT
OF THE INTEREST ASSIGNED BY SUCH ASSIGNMENT AND ACCEPTANCE, HAVE THE RIGHTS AND
OBLIGATIONS OF A LENDER UNDER THIS AGREEMENT, AND THE ASSIGNING LENDER
THEREUNDER SHALL, TO THE EXTENT OF THE INTEREST ASSIGNED BY SUCH ASSIGNMENT AND
ACCEPTANCE, BE RELEASED FROM ITS OBLIGATIONS UNDER THIS AGREEMENT (AND, IN THE
CASE OF AN ASSIGNMENT AND ACCEPTANCE COVERING ALL OF THE ASSIGNING LENDER'S
RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT, SUCH LENDER SHALL CEASE TO BE A
PARTY HERETO BUT SHALL CONTINUE TO BE ENTITLED TO THE BENEFITS OF SECTIONS 2.13,
2.14, 2.15 AND 9.03). ANY ASSIGNMENT OR TRANSFER BY A LENDER OF RIGHTS OR
OBLIGATIONS UNDER THIS AGREEMENT THAT DOES NOT COMPLY WITH THIS PARAGRAPH SHALL
BE TREATED FOR PURPOSES OF THIS AGREEMENT AS A SALE BY SUCH LENDER OF A
PARTICIPATION IN SUCH RIGHTS AND OBLIGATIONS IN ACCORDANCE WITH PARAGRAPH (e) OF
THIS SECTION.
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THE ADMINISTRATIVE AGENT, ACTING FOR THIS PURPOSE AS AN AGENT OF THE COMPANY,
SHALL MAINTAIN AT ONE OF ITS OFFICES IN THE CITY OF NEW YORK A COPY OF EACH
ASSIGNMENT AND ACCEPTANCE DELIVERED TO IT AND A REGISTER FOR THE RECORDATION OF
THE NAMES AND ADDRESSES OF THE LENDERS, AND THE COMMITMENT OF, AND PRINCIPAL
AMOUNT OF THE LOANS OWING TO, EACH LENDER PURSUANT TO THE TERMS HEREOF FROM TIME
TO TIME (THE "REGISTER"). THE ENTRIES IN THE REGISTER SHALL BE CONCLUSIVE, AND
THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS MAY TREAT EACH PERSON
WHOSE NAME IS RECORDED IN THE REGISTER PURSUANT TO THE TERMS HEREOF AS A LENDER
HEREUNDER FOR ALL PURPOSES OF THIS AGREEMENT, NOTWITHSTANDING NOTICE TO THE
CONTRARY.
UPON ITS RECEIPT OF A DULY COMPLETED ASSIGNMENT AND ACCEPTANCE EXECUTED BY AN
ASSIGNING LENDER AND AN ASSIGNEE, THE ASSIGNEE'S COMPLETED ADMINISTRATIVE
QUESTIONNAIRE (UNLESS THE ASSIGNEE SHALL ALREADY BE A LENDER HEREUNDER), THE
PROCESSING AND RECORDATION FEE REFERRED TO IN PARAGRAPH (b) OF THIS SECTION AND
ANY WRITTEN CONSENT TO SUCH ASSIGNMENT REQUIRED BY PARAGRAPH (b) OF THIS
SECTION, THE ADMINISTRATIVE AGENT SHALL ACCEPT SUCH ASSIGNMENT AND ACCEPTANCE
AND RECORD THE INFORMATION CONTAINED THEREIN IN THE REGISTER. NO ASSIGNMENT
SHALL BE EFFECTIVE FOR PURPOSES OF THIS AGREEMENT UNLESS IT HAS BEEN RECORDED IN
THE REGISTER AS PROVIDED IN THIS PARAGRAPH.
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ANY LENDER MAY, WITHOUT THE CONSENT OF ANY OF THE COMPANY OR THE ADMINISTRATIVE
AGENT, SELL PARTICIPATIONS TO ONE OR MORE BANKS OR OTHER ENTITIES (A
"PARTICIPANT") IN ALL OR A PORTION OF SUCH LENDER'S RIGHTS AND OBLIGATIONS UNDER
THIS AGREEMENT (INCLUDING ALL OR A PORTION OF ITS COMMITMENT AND THE LOANS OWING
TO IT); PROVIDED THAT (i) SUCH LENDER'S OBLIGATIONS UNDER THIS AGREEMENT SHALL
REMAIN UNCHANGED, (ii) SUCH LENDER SHALL REMAIN SOLELY RESPONSIBLE TO THE OTHER
PARTIES HERETO FOR THE PERFORMANCE OF SUCH OBLIGATIONS AND (iii) THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE OTHER LENDERS SHALL CONTINUE TO DEAL SOLELY AND
DIRECTLY WITH SUCH LENDER IN CONNECTION WITH SUCH LENDER'S RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT. ANY AGREEMENT OR INSTRUMENT PURSUANT TO WHICH
A LENDER SELLS SUCH A PARTICIPATION SHALL PROVIDE THAT SUCH LENDER SHALL RETAIN
THE SOLE RIGHT TO ENFORCE THIS AGREEMENT AND TO APPROVE ANY AMENDMENT,
MODIFICATION OR WAIVER OF ANY PROVISION OF THIS AGREEMENT; PROVIDED THAT SUCH
AGREEMENT OR INSTRUMENT MAY PROVIDE THAT SUCH LENDER WILL NOT, WITHOUT THE
CONSENT OF THE PARTICIPANT, AGREE TO ANY AMENDMENT, MODIFICATION OR WAIVER
DESCRIBED IN THE FIRST PROVISO TO SECTION 9.02(b) THAT AFFECTS SUCH PARTICIPANT.
SUBJECT TO PARAGRAPH (f) OF THIS SECTION, THE COMPANY AGREES THAT EACH
PARTICIPANT SHALL BE ENTITLED TO THE BENEFITS OF SECTIONS 2.13, 2.14 AND 2.15 TO
THE SAME EXTENT AS IF IT WERE A LENDER AND HAD ACQUIRED ITS INTEREST BY
ASSIGNMENT PURSUANT TO PARAGRAPH (b) OF THIS SECTION.
A PARTICIPANT SHALL NOT BE ENTITLED TO RECEIVE ANY GREATER PAYMENT UNDER SECTION
2.13 OR 2.15 THAN THE APPLICABLE LENDER WOULD HAVE BEEN ENTITLED TO RECEIVE WITH
RESPECT TO THE PARTICIPATIONS SOLD TO SUCH PARTICIPANT, UNLESS THE SALE OF THE
PARTICIPATIONS TO SUCH PARTICIPANT IS MADE WITH THE COMPANY'S PRIOR WRITTEN
CONSENT. A PARTICIPANT THAT WOULD BE A FOREIGN LENDER IF IT WERE A LENDER SHALL
NOT BE ENTITLED TO THE BENEFITS OF SECTION 2.15 UNLESS THE COMPANY IS NOTIFIED
OF THE PARTICIPATIONS SOLD TO SUCH PARTICIPANT AND SUCH PARTICIPANT AGREES, FOR
THE BENEFIT OF THE COMPANY, TO COMPLY WITH SECTION 2.15(e) AS THOUGH IT WERE A
LENDER.
ANY LENDER MAY AT ANY TIME PLEDGE OR ASSIGN A SECURITY INTEREST IN ALL OR ANY
PORTION OF ITS RIGHTS UNDER THIS AGREEMENT TO SECURE OBLIGATIONS OF SUCH LENDER,
INCLUDING ANY SUCH PLEDGE OR ASSIGNMENT TO A FEDERAL RESERVE BANK, AND THIS
SECTION SHALL NOT APPLY TO ANY SUCH PLEDGE OR ASSIGNMENT OF A SECURITY INTEREST;
PROVIDED THAT NO SUCH PLEDGE OR ASSIGNMENT OF A SECURITY INTEREST SHALL RELEASE
A LENDER FROM ANY OF ITS OBLIGATIONS HEREUNDER OR SUBSTITUTE ANY SUCH ASSIGNEE
FOR SUCH LENDER AS A PARTY HERETO.
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SECTION IX.4. Survival. All covenants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Syndication Agent and the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.13,
2.14, 2.15 and 9.03 shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Commitments or the termination
of this Agreement or any provision hereof.
SECTION IX.5. Counterparts: Integration: Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Syndication
Agent and the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Syndication Agent and the
Administrative Agent and when the Syndication Agent and the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION IX.6. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION IX.7. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Company against any of and all the
obligations of the Company now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement
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and although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION IX.8. Governing Law; Jurisdiction; Consent to Service of
Process; Process Agent; Waiver of Immunity. (a) This Agreement shall be
construed in accordance with and governed by the law of the State of New York.
THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF
THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR,
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST THE COMPANY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION
THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b)
OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
THE COMPANY IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES TO THE COMPANY IN SECTION 9.01 AND EACH OTHER PARTY TO THIS
AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES TO IT IN SECTION 9.01. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
SECTION IX.9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
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ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION IX.10. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION IX.11. Confidentiality. Each of the Syndication Agent and
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Syndication Agent and the
Administrative Agent or any Lender on a non-confidential basis from a source
other than the Company. For the purposes of this Section, "Information" means
all information received from the Company relating to the Company or its
business, other than any such information that is available to the Syndication
Agent and the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Company; provided that, in the case of information
received from the Company after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
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SECTION IX.12. Third Amendment & Restatement. Upon the Third
Amended and Restated Effective Date, this Agreement shall amend and restate and
replace in its entirety the Second Amended and Restated Credit Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
COMPANY: AMERADA XXXX CORPORATION
By: s/s Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
S-1
72
SOLE SYNDICATION AGENT,
JOINT BOOK RUNNER, JOINT
LEAD ARRANGER AND
A LENDER: XXXXXXX SACHS CREDIT PARTNERS L.P.
By: s/s Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
S-2
73
JOINT BOOK RUNNER AND JOINT
LEAD ARRANGER CHASE SECURITIES INC.
By: s/s Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
X-0
00
XX-XXXXXXXXXXXXX XXXXX,
XXXXXXXX AND A LENDER CITIBANK, N.A.
By: s/s Xxxxxx XxXxxxxx
-------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
X-0
00
XX-XXXXXXXXXXXXX XXXXX,
XXXXXXXX AND A LENDER BANK OF AMERICA, N.A.
By: s/s Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
X-0
00
XX-XXXXXXXXXXXXX XXXXX,
XXXXXXXX AND A LENDER BARCLAYS BANK PLC
By: s/s Xxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
S-6
77
ADMINISTRATIVE AGENT
AND A LENDER: THE CHASE MANHATTAN BANK
By: s/s Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
S-7
78
LENDERS: THE DAI-ICHI KANGYO BANK, LTD.
By: s/s Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Account Officer
S-8
79
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: s/s Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
S-9
80
THE FUJI BANK, LIMITED
By: s/s Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-10
81
ABN AMRO BANK, N.V.
By: s/s W. Xxxxx Xxxxxxx
-------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Group Vice President
By: s/s Xxxxx X. Xxxxx Xx.
-------------------------------
Name: Xxxxx X. Xxxxx Xx.
Title: Vice President
S-11
82
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: s/s X. Xxxxxxxxx
-------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
S-12
83
BNP PARIBAS
By: s/s Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
By: s/s Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
S-13
84
FLEET NATIONAL BANK
By: s/s Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
S-14
85
ROYAL BANK OF CANADA
By: s/s Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Manager
S-15
86
THE ROYAL BANK OF SCOTLAND PLC
By: s/s Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-16
00
XXX XXXX XX XXXX XXXXXX
By: s/s Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
X-00
00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX
By: s/s Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
By: s/s Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Manager
X-00
00
XXX XXXXXX XXXX XXX
By: s/s Hans Jorgen Ormar
-------------------------------
Name: Hans Jorgen Ormar
Title: Vice President
By: s/s Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
S-19
00
XXX XXXX XX XXX XXXX
By: s/s Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
S-20
91
CIBC, INC.
By: s/s Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Director
CIBC World Markets Corp., as Agent
S-21
92
THE SUMITOMO BANK, LIMITED
By: s/s C. Xxxxxxx Xxxxxxx
-------------------------------
Name: C. Xxxxxxx Xxxxxxx
Title: Senior Vice President
S-22
93
UNIBANK
By: s/s Torben Rolver
-------------------------------
Name: Torben Rolver
Title: First Vice President
By: s/s Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
X-00
00
XXXXXXXX XXXX
By: s/s Xxxxx X. Edge
-------------------------------
Name: Xxxxx X. Edge
Title: Director
X-00
00
XXXXXXXXXX XXXXXXXXXX
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
By: s/s Xxxxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: First Vice President
By: s/s Xxxx X'Xxxxxxxx
-------------------------------
Name: Xxxx X'Xxxxxxxx
Title: Vice President
S-25
96
THE NORTHERN TRUST BANK
By: s/s Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
S-26
97
SCHEDULE 2.01
TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Commitments
----------------------------------------------------------------------------------------------------
Lender Commitment
------ ----------
----------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Credit Partners L.P. $112,500,000
----------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $112,500,000
----------------------------------------------------------------------------------------------------
Citibank, N.A. $100,000,000
----------------------------------------------------------------------------------------------------
Bank of America, N.A. $100,000,000
----------------------------------------------------------------------------------------------------
Barclays Bank PLC $100,000,000
----------------------------------------------------------------------------------------------------
Mizuho Financial Group $97,500,000
----------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited $42,500,000
----------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $32,500,000
----------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd. $22,500,000
----------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust Company $75,000,000
----------------------------------------------------------------------------------------------------
BNP Paribas $75,000,000
----------------------------------------------------------------------------------------------------
Fleet National Bank $75,000,000
----------------------------------------------------------------------------------------------------
Royal Bank of Canada $75,000,000
----------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $75,000,000
----------------------------------------------------------------------------------------------------
Royal Bank of Scotland plc $75,000,000
----------------------------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale $75,000,000
----------------------------------------------------------------------------------------------------
Den norske Bank ASA $62,500,000
----------------------------------------------------------------------------------------------------
ABN AMRO Bank, N.V. $50,000,000
----------------------------------------------------------------------------------------------------
CIBC, Inc. $50,000,000
----------------------------------------------------------------------------------------------------
The Bank of New York $50,000,000
----------------------------------------------------------------------------------------------------
The Sumitomo Bank, Limited $50,000,000
----------------------------------------------------------------------------------------------------
Bayerische Landesbank, Cayman Islands Branch $25,000,000
----------------------------------------------------------------------------------------------------
Unibank $25,000,000
----------------------------------------------------------------------------------------------------
SunTrust Bank $25,000,000
----------------------------------------------------------------------------------------------------
The Northern Trust Bank $15,000,000
-----------
----------------------------------------------------------------------------------------------------
Total $1,500,000,000
==============
----------------------------------------------------------------------------------------------------
SCH 2.01-1
98
SCHEDULE 3.10
TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Scheduled Debt
SCH 3.10-1
99
SCHEDULE 6.02
TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Existing Liens
SCH 6.02-1
100
EXHIBIT A
TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Third Amended and Restated "Facility A"
Credit Agreement, dated as of January 23, 2001, among Amerada Xxxx Corporation
(the "Company"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), Xxxxxxx Sachs Credit Partners L.P., as
Joint Book Runner, Joint Lead Arranger and sole Syndication Agent, Chase
Securities Inc., as Joint Book Runner and Joint Lead Arranger, Bank of America,
N.A., as Co-Documentation Agent and Arranger, Citibank, N.A., as
Co-Documentation Agent and Arranger, Barclays Bank PLC, as Co-Documentation
Agent and Arranger and The Chase Manhattan Bank, as Administrative Agent (the
"Credit Agreement"). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and
the Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest set forth on Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those revolving credit facility
contained in the Credit Agreement (the "Assigned Facility") in a principal
amount and/or commitment amount for the Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor is the legal and beneficial owner of the interest being assigned by it
hereunder, it has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, any of its Subsidiaries,
any other obligor or the performance or observance by the Company, any of its
Subsidiaries, any other obligor of any of their respective obligations under the
Credit Agreement or any document executed in connection therewith or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by
101
it evidencing the Assigned Facility and (i) requests that the Administrative
Agent, upon request by the Assignee, exchange any attached Notes for a new Note
payable to the Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Administrative Agent exchange any
attached Notes for a new Note payable to the Assignor, in each case in amounts
which reflect the assignment being made hereby (and after giving effect to any
other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Sections 5.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section 2.15
of the Credit Agreement.
4. The effective date of this Assignment and Acceptance
shall be the date set forth on Schedule 1 hereto (the "Effective Date").
Following the execution of this Assignment and Acceptance, it will be delivered
to the Administrative Agent for acceptance by them and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue on or subsequent to the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other documents executed in connection therewith
EXHIBIT A-2
102
and shall be bound by the provisions thereof and (b) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
EXHIBIT A-3
103
SCHEDULE 1
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
---------------------------------------------------------------
Principal/Commitment Commitment Percentage
Amount Assigned Assigned
---------------------------------------------------------------
---------------------------------------------------------------
$ $
---------- ----------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------- -----------------------
Title: Title:
Accepted: :
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------
Title:
Consented to By:
AMERADA XXXX CORPORATION
By:
------------------------
Title:
By:
------------------------
Title:
104
EXHIBIT B
TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
FORM OF NON-NEGOTIABLE
REVOLVING LOAN NOTE
U.S.$___________ New York, New York
__________ __, 2001
FOR VALUE RECEIVED, the undersigned, AMERADA XXXX CORPORATION, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of__________ (the "Lender") on the dates and in the manner set forth
in Sections 2.08 and 2.16 of the Credit Agreement (as defined below) referred to
below at the office of the Administrative Agent set forth in Section 2.16 of the
Credit Agreement in immediately available funds, on the Maturity Date (as
defined in the Credit Agreement) the principal amount of (a) _________ U.S.
DOLLARS (U.S.$_____), or (b) the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to subsection 2.03
of such Credit Agreement. The Borrower further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.11 of such
Credit Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Revolving Loan made by the Lender pursuant to such Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period and the applicable
Adjusted LIBO Rate with respect thereto. Each such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded, provided
that the failure to make any such recordation or any error in any such
recordation shall not affect the obligations of the Borrower under such Credit
Agreement or this Note.
This Note (a) is one of the Notes referred to in the "Facility A"
Third Amended and Restated Credit Agreement, dated as of January 23, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the other banks and financial
institutions from time to time parties thereto, Xxxxxxx Xxxxx Credit Partners
L.P., as Joint Book Runner, Joint Lead Arranger and sole Syndication Agent,
Chase Securities Inc., as Joint Book Runner and Joint Lead Arranger, Bank of
America, N.A., as Co-Documentation Agent and Arranger, Citibank, N.A., as
Co-Documentation Agent and Arranger, Barclays Bank PLC, as Co-Documentation
Agent and Arranger and The Chase Manhattan Bank, as Administrative Agent, (b) is
105
subject to the provisions of the Credit Agreement and (c) is subject to optional
and mandatory prepayment in whole or in part as provided in the Credit
Agreement.
Upon the occurrence of any one or more Events of Default as
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
AMERADA XXXX CORPORATION
By:
Title:
EXHIBIT B-2
106
Schedule A
to Note
ABR LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
------------------------------------------------------------------------------------------------------------------------
Date Amount of ABR Amount Amount of Amount of ABR Unpaid Notation Made
Loans Converted to Principal of Loans Principal By
ABR Loans ABR Loans Converted to Balance of ABR
Repaid Eurodollar Loans
Loans
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
107
Schedule B
to Note
EURODOLLAR LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-----------------------------------------------------------------------------------------------------------------------------------
Date Amount of Amount Interest Period Amount of Amount of Unpaid Notation
Eurodollar Loans Converted to and Eurodollar Principal of Eurodollar Principal Made By
Eurodollar Loans Rate with Eurodollar Loans Converted Balance of
Respect Thereto Loans Repaid to ABR Loans Eurodollar
Loans
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
108
EXHIBIT C
TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMERADA XXXX CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
J. XXXXXXX XXXXXXX, XX
Executive Vice President
and General Counsel
(000) 000-0000
FAX: (000) 000-0000
January 23, 2001
Xxxxxxx Sachs Credit Partners L.P.,
as Joint Lead Arranger, Joint Book Runner and
Sole Syndication Agent
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc.,
as Joint Lead Arranger and Joint Book Runner
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Chase Manhattan Bank
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders party to the
Credit Agreements referred to below from time to time
Ladies and Gentlemen:
I am the general counsel to Amerada Xxxx Corporation, a Delaware
corporation (the "Company"), and have acted as such in connection with the
preparation, execution and delivery of (i) the Third Amended and Restated Credit
Agreement, dated as of January 23, 2001 (the "Facility A Credit Agreement"),
among the Company, the several banks and other financial institutions from time
109
to time parties thereto (the "Lenders"), Xxxxxxx Sachs Credit Partners L.P., as
joint book runner, joint lead arranger and sole syndication agent (in such
capacity, the "Syndication Agent"), Chase Securities Inc., as joint book runner
and joint lead arranger, Bank of America, N.A., as co-documentation agent and
arranger, Citibank, N.A., as co-documentation agent and arranger, Barclays Bank
PLC, as co-documentation agent and arranger and The Chase Manhattan Bank, as
administrative agent (in such capacity, the "Administrative Agent) and (ii) the
Third Amended and Restated Credit Agreement, dated as of January 23, 2001 (the
"Facility B Credit Agreement" and together with the Facility A Credit Agreement,
the "Credit Agreements"), among the Company, the several banks and other
financial institutions from time to time parties thereto (the "Lenders"),
Xxxxxxx Xxxxx Credit Partners L.P., as joint book runner, joint lead arranger
and sole syndication agent (in such capacity, the "Syndication Agent"), Chase
Securities Inc., as joint book runner and joint lead arranger, Bank of America,
N.A., as co-documentation agent and arranger, Citibank, N.A., as
co-documentation agent and arranger, Barclays Bank PLC, as co-documentation
agent and arranger and The Chase Manhattan Bank, as administrative agent (in
such capacity, the "Administrative Agent).
The opinions expressed below are furnished to you pursuant to
Section 4.01 of the Credit Agreements. Unless otherwise defined herein, terms
defined in the Credit Agreements and used herein shall have the meanings given
to them in the Credit Agreements.
In arriving at the opinions expressed below, I have examined the
following documents:
(a) the Credit Agreements and the Notes signed by the
Company (the Credit Agreements and such Notes being hereinafter referred to
collectively as the "Transaction Documents"); and
(b) such corporate documents and records of the Company and
such other instruments and certificates of public officials, officers and
representatives of the Company and other Persons as I have deemed necessary or
appropriate for the purpose of the opinion.
In arriving at the opinions expressed below, I have made such
investigations of law as I have deemed appropriate as a basis for such opinions.
In rendering the opinions expressed below, I have (a) relied as
to certain matters of fact on certificates of the officers of the Company, (b)
assumed, with your permission, without independent investigation or inquiry, (i)
the authenticity of all documents submitted as originals, (ii) the genuineness
of all signatures on all documents that I have examined (other than those of the
Company and officers of the Company) and (iii) the conformity to authentic
originals of documents submitted as certified, conformed or photostatic copies.
When the opinions expressed below are stated "to the best of my
knowledge," I have made reasonable and diligent investigation of the subject
matters of such opinions and have no reason
EXHIBIT C-2
110
to believe that there exist any facts or other information that would render
such opinions incomplete or incorrect.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The Company is duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation.
2. The Company has the corporate power and authority to
own, lease and operate its properties and to conduct the business in which it is
currently engaged and is duly qualified to transact business as a foreign
corporation or other legal entity and is in good standing or appropriately
qualified in each jurisdiction where its ownership, leasing, or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to have such power and authority and the failure to
be so qualified and in good standing does not, in the aggregate, constitute a
Material Adverse Effect.
3. The Company has the corporate power and authority to
make, deliver and perform its obligations under each Transaction Document and to
borrow under the Credit Agreements. The Company has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of the
Credit Agreements and the other Transaction Documents, and to authorize the
execution, delivery and performance of the Credit Agreements and each other
Transaction Document. No consent or authorization of, notice to, filing with or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with (i) the borrowings by the Company under the Credit
Agreements or (ii) the execution, delivery and performance by the Company, or
the validity or enforceability against the Company, of each Transaction
Document.
4. Each Transaction Document has been duly executed and
delivered on behalf of the Company. Each Transaction Document constitutes a
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms.
5. The execution and delivery of each Transaction Document
by the Company, the performance by the Company of its obligations thereunder,
the consummation of the transactions contemplated thereby, the compliance by the
Company with any of the provisions thereof, the borrowings by the Company under
the Credit Agreements and the use of proceeds thereof, all as provided therein,
(a) will not violate (i) any requirement of law or any regulation or order of
any Governmental Authority applicable to the Company or (ii) any Contractual
Obligation of the Company or any of its Subsidiaries and (b) will not result in,
or require, the creation or imposition of any Lien on any of its or their
respective assets or properties pursuant to any such requirement of law (or
regulation or order) or Contractual Obligation.
6. No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the best of my
knowledge, threatened by or against the
EXHIBIT C-3
111
Company or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to the Credit Agreements or any of the
other Transaction Documents or (b) which would constitute a Material Adverse
Effect.
7. To the best of my knowledge, neither the Company nor any
of its Subsidiaries is in default under or with respect to any Contractual
Obligations in any respect which would constitute a Material Adverse Effect.
8. The Company 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. The Company is not subject to regulation under
any Federal or state statute or regulation which limits its ability to incur
Indebtedness.
The opinions set forth in the second sentence of paragraph 4
above are subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law), including, without limitation,
concepts of materiality and reasonableness and an implied covenant of good faith
and fair dealing.
I am a member of the bar of the State of New York and the
opinions expressed herein are based upon and are limited to the laws of such
state, the General Corporation Law of the State of Delaware and the Federal laws
of the United States of America.
This opinion has been rendered solely for your benefit and for
the benefit of your permitted assignees pursuant to Section 9.04 of the Credit
Agreements in connection with the Credit Agreements and the other Transaction
Documents and the transactions contemplated thereby and may not be used,
circulated, quoted, relied upon or otherwise referred to for any other purpose
without my prior written consent; provided, however, that this opinion may be
delivered to your regulators, accountants, attorneys and other professional
advisers and may be used in connection with any legal or regulatory proceeding
relating to the subject matter of this opinion.
Very truly yours,
s/s J. Xxxxxxx Xxxxxxx
-----------------------------
J. Xxxxxxx Xxxxxxx
EXHIBIT C-4
