EXHIBIT 4.8
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
June 27, 2002
Lyondell Chemical Company,
Borrower
The Lenders Party Hereto
JPMorgan Chase Bank,
Administrative Agent
Bank of America, N.A.
and Citibank, N.A.,
Co-Syndication Agents
Societe Generale
and UBS Warburg LLC,
Co-Documentation Agents
------------------------------
X.X. Xxxxxx Securities Inc.
and Banc of America Securities LLC,
Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions..................................................................... 1
Section 1.02. Accounting Terms and Determinations............................................. 32
Section 1.03. Classes and Types of Loans and Borrowings....................................... 33
Section 1.04. Other Definitional Provisions................................................... 33
ARTICLE 2
THE CREDITS
Section 2.01. Facilities...................................................................... 34
Section 2.02. Notice of Borrowing............................................................. 34
Section 2.03. Notice to Lenders; Funding of Loans............................................. 34
Section 2.04. Maturity of Loans; Mandatory Prepayments........................................ 35
Section 2.05. Interest Rates.................................................................. 38
Section 2.06. Method of Electing Interest Rates............................................... 39
Section 2.07. Fees............................................................................ 41
Section 2.08. Termination or Reduction of Commitments......................................... 41
Section 2.09. Optional Prepayments............................................................ 42
Section 2.10. General Provisions as to Payments............................................... 43
Section 2.11. Funding Losses.................................................................. 43
Section 2.12. Computation of Interest and Fees................................................ 44
Section 2.13. Notes........................................................................... 44
Section 2.14. Registry........................................................................ 44
Section 2.15. Regulation D Compensation....................................................... 45
Section 2.16. Letters of Credit............................................................... 45
Section 2.17. Swing Loans..................................................................... 50
Section 2.18. Stop Issuance Notice............................................................ 52
ARTICLE 3
CONDITIONS
Section 3.01. Restatement Date................................................................ 53
Section 3.02. Effect of Amendment and Restatement............................................. 54
Section 3.03. Borrowings and Issuances of Letters of Credit................................... 54
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence and Power................................................... 55
Section 4.02. Corporate and Governmental Authorization; No Contravention...................... 55
Section 4.03. Binding Effect; Liens Enforceable............................................... 55
Section 4.04. Financial Information........................................................... 56
Section 4.05. Litigation...................................................................... 57
Section 4.06. Compliance with Laws............................................................ 57
Section 4.07. Environmental Matters........................................................... 57
Section 4.08. Taxes........................................................................... 58
Section 4.09. Subsidiaries.................................................................... 58
Section 4.10. No Regulatory Restrictions on Borrowing......................................... 58
Section 4.11. Full Disclosure................................................................. 58
ARTICLE 5
COVENANTS
Section 5.01. Information..................................................................... 59
Section 5.02. Payment of Obligations.......................................................... 62
Section 5.03. Maintenance of Property; Insurance.............................................. 62
Section 5.04. Conduct of Business and Maintenance of Existence................................ 62
Section 5.05. Compliance with Laws............................................................ 62
Section 5.06. Inspection of Property, Books and Records....................................... 63
Section 5.07. Mergers and Sales of Assets..................................................... 63
Section 5.08. Use of Proceeds................................................................. 63
Section 5.09. Negative Pledge................................................................. 63
Section 5.10. Limitation on Subsidiary Debt................................................... 65
Section 5.11. Adjusted Debt to Adjusted EBITDA................................................ 66
Section 5.12. Fixed Charge Coverage Ratio..................................................... 66
Section 5.13. Minimum Consolidated Net Worth.................................................. 67
Section 5.14. Lease Payments.................................................................. 67
Section 5.15. Restricted Payments; Optional Prepayments....................................... 67
Section 5.16. Investments; Business Acquisitions.............................................. 68
Section 5.17. Transactions with Affiliates.................................................... 68
Section 5.18. Limitation on Restrictions Affecting Subsidiaries............................... 68
Section 5.19. Further Assurances.............................................................. 69
Section 5.20. Restrictions on Borrower Joint Ventures......................................... 71
Section 5.21. Issuance of Equity Securities................................................... 72
Section 5.22. Major Asset Sales............................................................... 72
Section 5.23. Capital Expenditures............................................................ 75
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default............................................................... 75
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Section 6.02. Notice of Default............................................................... 78
Section 6.03. Cash Cover...................................................................... 79
ARTICLE 7
THE AGENTS
Section 7.01. Appointment and Authorization................................................... 79
Section 7.02. Agents and Affiliates........................................................... 79
Section 7.03. Action by the Administrative Agent.............................................. 79
Section 7.04. Consultation with Experts....................................................... 79
Section 7.05. Liability of Agents............................................................. 79
Section 7.06. Indemnification................................................................. 80
Section 7.07. Credit Decision................................................................. 80
Section 7.08. Successor Administrative Agents................................................. 80
Section 7.09. Administrative Agent's Fees..................................................... 81
Section 7.10. Co-Syndication Agents, Co-Documentation Agents and Arrangers.................... 81
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair........................ 81
Section 8.02. Illegality...................................................................... 82
Section 8.03. Increased Cost and Reduced Return............................................... 82
Section 8.04. Taxes........................................................................... 84
Section 8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans...................... 86
Section 8.06. Substitution of Bank............................................................ 86
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices......................................................................... 87
Section 9.02. No Waivers...................................................................... 87
Section 9.03. Expenses; Indemnification....................................................... 88
Section 9.04. Set-Offs........................................................................ 88
Section 9.05. Amendments and Waivers.......................................................... 89
Section 9.06. Successors; Participations and Assignments...................................... 90
Section 9.07. Designated Lenders.............................................................. 92
Section 9.08. No Reliance on Margin Stock..................................................... 93
Section 9.09. Governing Law; Submission to Jurisdiction....................................... 94
Section 9.10. Counterparts; Effectiveness..................................................... 94
Section 9.11. WAIVER OF JURY TRIAL............................................................ 94
Section 9.12. ERISA Matters................................................................... 94
Section 9.13. Confidentiality................................................................. 96
Section 9.14. Waiver.......................................................................... 96
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COMMITMENT SCHEDULE
TERM LOAN SCHEDULE
PRICING SCHEDULE
SCHEDULE 1.01 C Existing Collateral Documents
SCHEDULE 4.09 C Subsidiaries
SCHEDULE 5.20 C Existing Joint Venture Agreements
EXHIBIT A C Note
EXHIBIT B C Opinion of Counsel for Borrower
EXHIBIT C C Opinion of Deputy General Counsel of Borrower
EXHIBIT D C Form of Assignment and Assumption Agreement
EXHIBIT E C Form of Designation Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 27, 2002 among
LYONDELL CHEMICAL COMPANY, the LENDERS party hereto, JPMORGAN CHASE BANK, as
Administrative Agent, BANK OF AMERICA, N.A. and CITIBANK, N.A., as
Co-Syndication Agents and SOCIETE GENERALE and UBS WARBURG LLC, as
Co-Documentation Agents.
RECITAL
The Borrower (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article 1) has
heretofore entered into a Credit Agreement dated as of July 28, 1998 with the
lenders and agents party thereto (as amended as of April 1, 1999, as amended and
restated as of April 16, 1999, and as amended as of February 3, 2000, September
22, 2000, March 27, 2001 and September 26, 2001, the "Original Credit
Agreement"). The Borrower desires to enter into this Amended Agreement to amend
and restate the Original Credit Agreement. The Lenders are willing to amend and
restate the Original Credit Agreement and to extend credit to the Borrower on
the terms and subject to the conditions set forth herein.
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Accepting Term Lender" has the meaning set forth in Section 2.04(e)(iii).
"Acquiring Person" has the meaning set forth in Section 5.22.
"Acquisition" means the acquisition by the Borrower, directly or
indirectly, of ARCO Chemical.
"Additional JV Debt" means Debt incurred by Equistar, LCR or LMC after the
Closing Date in connection with the admission into such Borrower Joint Venture
of a new partner or member, as the case may be; provided that, at the time such
Debt is incurred, such Borrower Joint Venture's ratio of Debt to EBITDA,
calculated on a pro forma basis (without giving effect to anticipated expense
reductions or other synergies) for its then most recent fiscal year for which
financial statements are available, does not exceed 2.25:1.00.
"Adjusted Debt" means, at any date, the difference of (i) the Debt of the
Non-JV Group at such date (exclusive of (A) the Lyondell-Equistar Debt and
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(B) Loans required to be prepaid pursuant to Section 2.04, if and to the extent
that cash available for payment thereof is held in an escrow account established
with the Administrative Agent) minus (ii) the amount of cash reflected on the
balance sheet of the Non-JV Group at such date in an amount not to exceed the
Maximum Cash Adjustment Amount.
"Adjusted EBITDA" means, for any period, the sum of (i) the EBITDA of the
Non-JV Group for such period, adjusted to exclude the effect of one time charges
incurred subsequent to June 30, 2001 in connection with (A) the Acquisition and
subsequent Asset Sales (other than a TDI Sale) in an aggregate amount not
exceeding $62,000,000, (B) a TDI Sale and (C) the TDI Restructuring in an amount
not exceeding $80,000,000, plus (ii) the Distributable Cash Flow of all Borrower
Joint Ventures and non-wholly owned Subject Assets Transferees for such period.
"Administrative Agent" means JPMorgan Chase Bank in its capacity as
administrative agent for the Lenders under the Loan Documents, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
completed by such Lender and returned to the Administrative Agent (with a copy
to the Borrower).
"Affiliate" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Borrower (a "Controlling Person"), (ii) any
Person (other than the Borrower or a Subsidiary) which is controlled by or is
under common control with a Controlling Person, (iii) any Borrower Joint Venture
or (iv) any Person (other than the Borrower or a Subsidiary) holding a direct or
indirect equity interest in any Borrower Joint Venture. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. No director or
officer of the Borrower shall be considered an Affiliate solely by virtue of
holding such position.
"Agents" means the Administrative Agent, the Co-Syndication Agents and the
Co-Documentation Agents, and "Agent" means any of them as the context may
require.
"Agreement" means the Original Credit Agreement, as amended by this Amended
Agreement and as the same may be further amended from time to time.
"Amended Agreement" means this Amended and Restated Credit Agreement dated
as of June 27, 2002.
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"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, with respect to Loans of any Type and any Class
at any time, the percentage rate per annum set forth in the Pricing Schedule as
the Margin with respect to Loans of such Type and Class which is applicable at
such time; provided that the Applicable Margin on any date shall be the sum of
the percentage so determined plus 2.00%, if on such date (i) an Event of Default
exists and (ii) except in the case of an Event of Default under Section 6.01(a)
or 6.01(b), the Administrative Agent shall have notified the Borrower at the
request of the Required Lenders that this proviso shall be applicable.
"Applicable Term Loans Prepayment Fee Percentage" means (i) on any date
from the date hereof to but excluding May 17, 2003, 2% and (ii) on any date from
and including May 17, 2003 to and including the May 17, 2004, 1%.
"ARCO Chemical" means Lyondell Chemical Worldwide, Inc., a Delaware
corporation (formerly named ARCO Chemical Company).
"Arrangers" means X.X. Xxxxxx Securities Inc. and Banc of America
Securities LLC.
"Asset Sale" means any sale, lease or other disposition (including any such
transaction effected by way of merger or consolidation) by the Borrower or any
of its Subsidiaries of any asset, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, including
any Major Asset Sale but excluding (i) dispositions of inventory or equipment in
the ordinary course of business, (ii) dispositions of Temporary Cash Investments
and cash payments otherwise permitted under this Agreement (including Restricted
Payments permitted by Section 5.15), (iii) dispositions to the Borrower or a
Subsidiary of the Borrower, (iv) dispositions constituting mergers or
consolidations permitted by Section 5.07, (v) dispositions constituting
Investments permitted by Section 5.16 (except as provided below) and (v)
dispositions constituting Liens permitted by Section 5.09. For avoidance of
doubt, a Securitization Transaction constitutes an Asset Sale and does not, in
itself, give rise to an obligation secured by a Lien on an asset of the Borrower
or a Subsidiary. To the extent that, in connection with (x) an Investment by the
Borrower or a Subsidiary in a Borrower Joint Venture or (y) a reduction in the
proportionate interest of the Borrower or a Subsidiary in a Borrower Joint
Venture as contemplated by Section 5.19(d)(ii), the Borrower or a Subsidiary
receives Net Cash Proceeds (determined as if such transaction were an Asset
Sale), then such transaction shall be treated as an Asset Sale to the extent of
such Net Cash Proceeds.
"Asset Sale Lien" has the meaning set forth in Section 5.22.
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"Assignee" has the meaning set forth in Section 9.06(c).
"Available Cash Flow" means, for any Person for any fiscal period, the sum
of (i) the Net Income of such Person for such period plus (ii) to the extent
deducted in determining such Net Income for such period, depreciation,
amortization and other noncash charges plus (iii) any increase (or minus any
decrease) during such period in the deferred tax liabilities of such Person plus
(iv) any decrease (or minus any increase) in the Net Working Investment of such
Person between the beginning and end of such period minus (v) the capital
expenditures of such Person for such period (except to the extent financed with
the proceeds of Debt of such Person) minus (vi) to the extent reflected in
Consolidated Net Income, Major Casualty Proceeds to the extent Borrower has
committed to expend or has expended such Major Casualty Proceeds in accordance
with the proviso of the Reduction Event definition; provided that, for the
purposes of clause (v) above only, "capital expenditures" shall (x) include
(without duplication) Investments made in the PO-11 JV or the PO-12 JV during
such fiscal year to finance capital expenditures of such Borrower Joint Ventures
and (y) exclude expenditures funded by proceeds of property and casualty
insurance or any award or other compensation with respect to any condemnations
of property (or any transfer or disposition of property in lieu of condemnation)
and related insurance deductibles to the extent such insurance, award, or other
compensation is not reflected in Net Income.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Loan which bears interest based on the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the provisions of Section 2.06(a) or Article 8.
"Borrower" means Lyondell Chemical Company (formerly named Lyondell
Petrochemical Company), a Delaware corporation, and its successors.
"Borrower Joint Ventures" means Equistar, LCR and any Future Joint Venture,
and "Borrower Joint Venture" means any of them, as the context may require.
"Borrower Pledge Agreement" means a Pledge Agreement dated as of the
Closing Date between the Borrower and the Administrative Agent.
"Borrowing" has the meaning set forth in Section 1.03.
"Business Acquisition" means (i) an Investment by the Borrower or any of
its Subsidiaries in any other Person (other than the Borrower or any of its
Subsidiaries) (including an Investment by way of acquisition of securities of
any
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other Person) pursuant to which such Person shall become a Subsidiary or shall
be merged into or consolidated with the Borrower or any of its Subsidiaries or
(ii) an acquisition by the Borrower or any of its Subsidiaries of the property
and assets of any Person (other than the Borrower or any of its Subsidiaries)
that constitute substantially all the assets of such Person or any division or
other business unit of such Person.
"Capital Expenditures" means, for any Person for any fiscal period, the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Consolidated Subsidiaries for such period, as the same are (or
would in accordance with GAAP be) set forth in a statement of cash flows of such
Person for such period; provided that "Capital Expenditures" shall exclude (i)
expenditures required, mandated or necessary to comply with the laws, rules,
regulations or other requirements of any governmental authority and (ii)
expenditures of property and casualty insurance or any award or other
compensation with respect to any condemnations of property (or any transfer or
disposition of property in lieu of condemnation) and related insurance
deductibles; and provided further that "Capital Expenditures" shall include
(without duplication) Investments made in the PO-11 JV or the PO-12 JV during
such fiscal year to finance Capital Expenditures of such Borrower Joint
Ventures.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, and any rules or regulations promulgated
thereunder.
"Change of Control" shall occur if (i) any Person or group (within the
meaning of Section 13 or 14 of the Exchange Act) of Persons (other than
Millennium Chemicals Inc., Occidental Chemical Corp. and/or their affiliates)
shall have acquired Voting Control of 20% or more of the outstanding shares of
common stock of the Borrower; or (ii) Continuing Directors shall cease to
constitute a majority of the Borrower's board of directors.
"Class" has the meaning set forth in Section 1.03.
"Closing Date" means July 28, 1998.
"Co-Documentation Agents" means Societe Generale and UBS Warburg LLC, each
in its capacity as documentation agent in respect of the Loan Documents.
"Co-Syndication Agents" means Bank of America, N.A. and Citibank, N.A.,
each in its capacity as syndication agent in respect of the Loan Documents.
"Collateral" means the collateral purported to be subject to the Liens of
the Collateral Documents.
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"Collateral Documents" means the Existing Collateral Documents, and any
additional security agreements or pledge agreements required to be delivered
pursuant to the Loan Documents to secure the obligations of the Obligors under
the Loan Documents and the Senior Notes and, to the extent provided therein, the
obligations of the Borrower under the PBGC Settlement Agreement and the Existing
ARCO Chemical Debt, and any instruments of assignment or other instruments or
agreements executed pursuant to the foregoing.
"Commitment" means any Revolving Commitment, or Swing Loan Commitment, and
"Commitments" means any or all of the foregoing, as the context may require.
"Commitment Fee Rate" has the meaning set forth in the Pricing Schedule.
"Commitment Schedule" means the Schedule attached hereto and identified as
such.
The "Compliance Test" is satisfied at any date if, and only if, at such
date (i) the ratio of Adjusted Debt at the date of the then most recent annual
or quarterly consolidated financial statements of the Borrower furnished to the
Administrative Agent pursuant to Section 5.01 (the date of such financial
statements being referred to as the "determination date") to Adjusted EBITDA for
the period of four consecutive Fiscal Quarters ended on the determination date
does not exceed 5.00 and (ii) the Fixed Charge Coverage Ratio at the
determination date is not less than 2.50.
"Consolidated Assets" means, at any date, the consolidated assets of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis as
of such date.
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
for such period, adjusted to exclude the effect of one time charges incurred in
connection with the Acquisition and subsequent Asset Sales in an aggregate
amount not exceeding $250,000,000.
"Consolidated Net Worth" means, at any date, the consolidated stockholders'
equity of the Borrower and its Consolidated Subsidiaries determined as of such
date, adjusted to exclude the effect of (i) one time charges incurred in
connection with the Acquisition and subsequent Asset Sales in an aggregate
amount not exceeding $250,000,000 and (ii) any change subsequent to December 31,
1998 in the cumulative foreign currency translation adjustment.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Borrower in
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its consolidated financial statements if such statements were prepared as of
such date.
"Continuing Directors" means (i) directors of the Borrower on the date
hereof and (ii) individuals who were recommended for election or elected to
become directors of the Borrower by a majority of the Continuing Directors then
in office.
"Controlling Person" has the meaning set forth in the definition of
"Affiliate".
"Credit Exposure" means, with respect to any Lender at any time, the sum of
(i) such Lender's Revolving Commitment at such time or, if its Revolving
Commitment shall have been terminated, the amount of such Lender's Revolving
Outstandings at such time plus (ii) the aggregate outstanding principal amount
of such Lender's Term Loans at such time.
"Debt" of any Person means, at any date, without duplication, (i) the
principal amount of all obligations of such Person for borrowed money, (ii) the
principal amount of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services (except trade
accounts payable, accrued expenses and deferred compensation and other pension,
benefit and welfare expenses, in each case arising in the ordinary course of
business) if and to the extent the foregoing would appear as a liability on a
balance sheet of such Person in accordance with GAAP, (iv) all obligations of
such Person as lessee which are capitalized in accordance with GAAP, (v) all
non-contingent obligations (and, solely for purposes of Section 5.09, all
contingent obligations, which contingent obligations shall for such purposes be
deemed to be in an outstanding principal amount equal to the maximum contingent
amount thereof) of such Person to reimburse any bank or other Person in respect
of amounts paid under a letter of credit or similar instrument, (vi) all capital
stock of such Person which is subject to redemption otherwise than at the sole
option of such Person at any time prior to the date 12 months after the latest
Maturity Date; (vii) all Debt secured by a Lien on any asset of such Person,
whether or not such Debt is otherwise an obligation of such Person; provided
that, for purposes of determining the amount of any Debt of the type described
in this clause (vii), if recourse with respect to such Debt is limited to such
asset, the amount of such Debt shall be limited to the lesser of (A) the greater
of (x) the book value of such asset or (y) the fair market value of such asset
or (B) the amount of such Debt and (viii) all Guarantees by such Person of Debt
of another Person (each such Guarantee to constitute Debt in an amount equal to
the amount of such other Person's Debt Guaranteed thereby). For avoidance of
doubt, Debt does not include an Equity Equivalent or a Securitization
Transaction.
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"Debt Incurrence" means the issuance for cash proceeds by the Borrower or
any of its Subsidiaries of any debt security having a maturity in excess of one
year, other than any such issuance (i) to the Borrower or a Subsidiary or (ii)
pursuant to a Working Capital Facility.
"Departing Lender" has the meaning set forth in Section 3.02.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Deferred Term Lender Unscheduled Prepayment Date" has the meaning set
forth in Section 2.04(e)(ii).
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Designated Lender" means, with respect to any Designating Lender, an
Eligible Designee designated by it pursuant to Section 9.07(a) as a Designated
Lender for purposes of this Agreement.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 9.07(a).
"Distributable Cash Flow" means with respect to any Borrower Joint Venture
or non-wholly owned Subject Assets Transferee for any period, an amount equal to
the lesser of "A" or "B" where:
"A" equals the greater of (i) zero and (ii) the Borrower's direct
and/or indirect share of the cash from operations (as defined in accordance
with GAAP and adjusted to exclude the effect of any extraordinary gain or
loss) of such Person for such period minus the Borrower's direct and/or
indirect share of the gross capital expenditures of such Person for such
period; and
"B" equals the greater of (i) zero and (ii) cash distributions by such
Person to the Borrower or a JV Subsidiary during such period (including
repayment of loans made to such Person to finance capital expenditures) net
of equity investments and loans made by the Borrower or a Subsidiary in or
to such Person during such period to finance capital expenditures.
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"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Domestic Lending Office" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"EBITDA" means, for any Person for any period, the Net Income of such
Person for such period plus, to the extent deducted in determining such Net
Income, interest expense, income tax expense and depreciation, amortization and
other similar non-cash charges.
"EBITDA Product" has the meaning set forth in Section 5.19(d)(ii).
"Eligible Designee" means a special purpose corporation that (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Moody's.
"Environmental Laws" means any federal, state, local or foreign law,
treaty, judicial decision, regulation, rule, judgment, order, decree,
injunction, permit or governmental restriction or requirement, whether now or
hereafter in effect, relating to human health and safety, the environment or the
protection of the environment.
"Environmental Liabilities" means any and all liabilities of the Borrower
and its Subsidiaries, whether vested or unvested, contingent or fixed, actual or
potential, which arise under or relate to matters covered by Environmental Laws.
"Equistar" means Equistar Chemicals, LP, a Delaware limited partnership and
a joint venture among the Borrower and, at the date hereof, Millennium Chemicals
Inc. and Occidental Chemical Corp. in which the Borrower holds at the date
hereof a 41% indirect equity interest.
"Equistar Partnership Agreement" means the Limited Partnership Agreement of
Equistar dated October 10, 1997.
"Equity Equivalent" means (i) any equity securities of a special purpose
Subsidiary of the Borrower, whose only assets consist of the proceeds of such
issuance and a debt obligation of the Borrower which matures more than one year
after the latest Maturity Date and is subordinated in right of payment to the
Loans
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on terms satisfactory to the Administrative Agent and (ii) any other equity-like
securities the form and substance of which are reasonably acceptable to the
Administrative Agent.
"Equity Issuance" means any issuance of (a) equity securities (including
any preferred equity securities) by the Borrower, other than (i) equity
securities issued to a Subsidiary, (ii) equity securities issued pursuant to
employee benefit and/or dividend reinvestment plans in the ordinary course of
business and (iii) equity securities issued as consideration for a Business
Acquisition (including any equity securities issued in the transactions
described in clauses (ii) and (iii) of the definition of Specified Business
Acquisitions) or (b) an Equity Equivalent.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan which bears interest based on the London
Interbank Offered Rate pursuant to the applicable Notice of Borrowing or Notice
of Interest Rate Election.
"Euro-Dollar Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
10
"Events of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, for any period, the excess (if any) of:
(a) the sum of (i) the Available Cash Flow for the Non-JV Group for such
fiscal period, (ii) the Distributable Cash Flow of all Borrower Joint Ventures
for such period plus (iii) the amount of cash extraordinary or other
non-recurring gains of the Non-JV Group during such period; over
(b) the sum of (i) Regular Preferred Stock Payments for such period, (ii)
the scheduled amortization of long-term Debt of the Non-JV Group during such
period and (iii) dividends paid on the Borrower's common stock during such
period.
The calculation of Excess Cash Flow shall be adjusted, to the extent
necessary, to avoid (x) duplication of amounts of mandatory prepayments pursuant
to Section 2.04(c) and (y) duplication of reductions in Excess Cash Flow on
account of capital expenditures of the PO-11 JV and PO-12 JV financed with
capital contributions made by the Borrower and its Consolidated Subsidiaries and
deducted (but for this clause (y)) in the determination of both Available Cash
Flow and Distributable Cash Flow.
"Excess Cash Flow Prepayment Amount" means, for any period, (i) 50% of
Excess Cash Flow for such period minus (ii) the aggregate principal amount of
Term Loans prepaid during such period pursuant to Section 2.09 (exclusive of the
portion thereof credited against scheduled amortization in forward order of
maturity) and the aggregate principal amount of the Senior Notes prepaid during
such period pursuant to Section 5.15(b)(v).
"Excluded Taxes" has the meaning set forth in Section 8.04(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing ARCO Chemical Debt" means (i) the 9.375% Debentures Due 2005, the
10.25% Debentures Due 2010 and the 9.8% Debentures Due 2020, all issued by ARCO
Chemical pursuant to the Indenture dated June 15, 1988 among ARCO Chemical and
The Bank of New York, as Trustee, (ii) other Debt disclosed in the consolidated
balance sheet of ARCO Chemical set forth in ARCO Chemical's quarterly report on
Form 10-Q for the fiscal quarter ended March 31, 1998, and (iii) other Debt
outstanding on the Closing Date incurred subsequent to March 31, 1998 in the
ordinary course of business consistent with past practice.
"Existing Borrower Debt" means (i) the 6.5% Notes Due 2006 and 7.55% Notes
Due 2026, each issued by the Borrower pursuant to an Indenture dated as of
January 29,1996 between the Borrower and Texas Commerce Bank National
Association, as trustee, as supplemented by the First Supplemental
11
Indenture dated as of February 15, 1996 and the Second Supplemental Indenture
dated as of December 1, 1997; (ii) Debt under the Medium Term Notes (clauses (i)
and (ii) of this paragraph, describing certain Debt with respect to which, as
between the Borrower and Equistar, Equistar is the obligor and the Borrower is a
guarantor, the "Lyondell-Equistar Debt"); (iii) Debt in an amount not in excess
of $20,000,000 under certain uncommitted lines of credit existing on the
Restatement Date; (iv) the Senior Notes issued prior to the Restatement Date
under the Senior Secured Note Indentures; (v) the Senior Subordinated Notes
issued prior to the Restatement Date; (vi) other Debt disclosed in the
consolidated balance sheet of the Borrower set forth in the Borrower's quarterly
report on Form 10-Q for the fiscal quarter ended March 31, 2002, and (vii) other
Debt outstanding on the Restatement Date incurred subsequent to March 31, 2002
in the ordinary course of business consistent with past practice.
"Existing Collateral Documents" means the instruments identified in
Schedule 1.01.
"Existing Debt" means (i) the Existing Borrower Debt, (ii) the Existing
Equistar Debt, (iii) the Existing LCR Debt and (iv) the Existing ARCO Chemical
Debt.
"Existing Equistar Debt" means (i) Debt under the $800,000,000 Amended and
Restated Credit Agreement dated as of August 24, 2001 among Equistar, the
lenders party thereto, Bank of America, N.A., as Servicing Agent and
Administrative Agent, and JPMorgan Chase Bank, as Administrative Agent, and
Citicorp USA, Inc. and Credit Suisse First Boston, as Co-Syndication Agents;
(ii) the Lyondell-Equistar Debt; (iii) the 10 1/8% Notes Due 2008 issued by
Equistar pursuant to an Indenture dated as of August 24, 2001; (iv) the 8.75%
Notes Due 2009 and the 8.5% Notes Due 2004, each issued by Equistar pursuant to
an Indenture dated as of January 15, 1999; (v) other Debt disclosed in the
balance sheet of Equistar set forth in the Borrower's quarterly report on Form
10-Q for the fiscal quarter ended March 31, 2002; and (vi) other Debt
outstanding on the Restatement Date incurred subsequent to March 31, 2002 in the
ordinary course of business consistent with past practice.
"Existing LCR Debt" means (i) Debt under the $70,000,000 Revolving Credit
Agreement dated as of July 20, 2001 among LCR, the lenders party thereto and
Credit Suisse First Boston, as Administrative Agent; (ii) Debt under the
$450,000,000 Credit Agreement dated as of July 20, 2001 among LCR, the lenders
party thereto Credit Suisse First Boston, as Administrative Agent; (iii) other
Debt disclosed in the balance sheet of LCR set forth in the Borrower's quarterly
report on Form 10-Q for the fiscal quarter ended March 31, 2002, and (iv) other
Debt outstanding on the Restatement Date incurred subsequent to March 31, 2002
in the ordinary course of business consistent with past practice.
12
"Existing Letters of Credit" shall mean the letters of credit issued under
the Original Credit Agreement and outstanding on the Restatement Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the immediately preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New York on
such day for such transactions by Federal funds brokers of recognized standing,
as determined by the Administrative Agent.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" means, at any date, the ratio of (i) the sum
of (A) Adjusted EBITDA plus (B) the rental expense of the Non-JV Group, in each
case for the period of four consecutive Fiscal Quarters ended on or most
recently prior to such date to (ii) the sum of (A) the interest expense of the
Non-JV Group for such period plus (B) the rental expense of the Non-JV Group for
such period plus (C) Regular Preferred Stock Payments for such period.
"Fixed Rate Loan" means a Euro-Dollar Loan or a Swing Loan.
"Foreign Subsidiary" means any Subsidiary organized under the laws of a
jurisdiction, and conducting substantially all its operations, outside the
United States.
"Future Joint Venture" means any joint venture (i) in which the Borrower
acquires a direct or indirect equity interest after the Closing Date and (ii)
which is accounted for by the Borrower on the equity method.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders.
13
"General Partner" means a Subsidiary of the Borrower or any of its
Subsidiaries that has no assets and conducts no operations other than its
ownership of a general partnership interest in a Borrower Joint Venture.
"Group of Loans" means at any time a group of Loans of any Class consisting
of (i) all Loans of such Class which are Base Rate Loans at such time or (ii)
all Loans of such Class which are Euro-Dollar Loans having the same Interest
Period at such time, provided that, if a Loan of any particular Lender is
converted to or made as a Base Rate Loan pursuant to Article 8, such Loan shall
be included in the same Group or Groups of Loans from time to time as it would
have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements
(other than, in the case of the Borrower or a Subsidiary of the Borrower, with
respect to the obligations of a Borrower Joint Venture, solely by virtue of a
Subsidiary of the Borrower being the General Partner of such Borrower Joint
Venture if, as of the date of determination, no payment on such Debt or other
obligation has been made by such General Partner of such Borrower Joint Venture
and such arrangement would not be classified and accounted for, in accordance
with GAAP, as a liability on a consolidated balance sheet of the Borrower), by
virtue of an agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or
otherwise), (ii) to reimburse a bank for amounts drawn under a letter of credit
for the purpose of paying such Debt or other obligation or (iii) entered into
for the purpose of assuring in any other manner the holder of such Debt or other
obligation of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any pollutant, contaminant, waste or chemical
or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous
substance, waste or material, or any substance, waste or material having any
constituent elements displaying any of the foregoing characteristics, including
petroleum, its derivatives, by-products and other hydrocarbons, regulated under
Environmental Laws.
"Indemnitee" has the meaning set forth in Section 9.03(b).
14
"Information Memorandum" means the confidential information memorandum
dated June 2002 furnished to the Lenders in connection with the syndication of
the credit facilities established under this Amended Agreement.
"Interest Period" means (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months (or, if corresponding funding
is available to each Lender, nine or twelve months) thereafter, as the Borrower
may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d) below, end on the
last Euro-Dollar Business Day of a calendar month;
(c) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Credit Termination Date; and
(d) no Interest Period applicable to any Term Loan shall extend
beyond any date upon which is due any scheduled principal payment in
respect of the Term Loans unless the aggregate principal amount of Term
Loans represented by Base Rate Loans and Euro-Dollar Loans having Interest
Periods which end on or prior to such date equals or exceeds the amount of
such principal payment.
(2) with respect to each Swing Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Swing Loan Borrowing or on the
last day of the next preceding Interest Period applicable thereto and ending one
week thereafter; provided that;
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) no Interest Period for any Swing Loan shall extend beyond
the Swing Loan Termination Date.
15
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
purchase of equity securities, capital contribution (in cash, property or
services), loan, Guarantee, time deposit or otherwise (but not including any
demand deposit).
"Issuing Bank" means JPMorgan Chase Bank and any other Revolving Lender
that may agree to issue letters of credit hereunder, in each case as issuer of a
letter of credit hereunder.
"JV Subsidiaries" means Lyondell Petrochemical G.P. Inc., Lyondell
Petrochemical L.P. Inc., Lyondell Refining Company, Lyondell Refining LP, LLC
and each other Subsidiary of the Borrower that, at any time, directly holds an
equity interest in any Borrower Joint Venture, and "JV Subsidiary" means any of
the foregoing, as the context may require.
"JV Subsidiary Security Agreement" means a Security Agreement dated as of
the Closing Date entered into by each JV Subsidiary in favor of the
Administrative Agent (or, for purposes of Section 5.19(d), a security agreement
in substantially that form).
"LCR" means LYONDELL-CITGO Refining LP, a Delaware limited partnership (and
as of the date hereof a joint venture between the Borrower and CITGO Petroleum
Corporation) in which the Borrower holds at the date hereof 58.75% indirect
equity interest, the successor to LYONDELL-CITGO Refining Company, Ltd., a Texas
limited liability company.
"LCR Partnership Agreement" means the Limited Partnership Agreement of LCR
dated December 31, 1998.
"LCR Recapitalization" means the refinancing of certain Existing LCR Debt
and the distribution of a portion of the proceeds of the foregoing to the
Borrower.
"Lender" means (i) each lender listed on the Commitment Schedule or on the
Term Loan Schedule, (ii) each Assignee which becomes a Lender pursuant to
Section 9.06(c) and (iii) their respective successors.
"Lender Parties" means the Lenders and the Agents.
"Letter of Credit" means a letter of credit issued or to be issued
hereunder by an Issuing Bank (including an Existing Letter of Credit).
"Letter of Credit Liabilities" means, for any Lender and at any time, such
Lender's ratable participation in the sum of (x) the aggregate amount then
16
owing by the Borrower in respect of amounts drawn under Letters of Credit and
(y) the aggregate amount then available for drawing under all Letters of Credit.
"Letter of Credit Termination Date" means the tenth Domestic Business Day
prior to the Revolving Credit Termination Date.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Borrower
or any Subsidiary shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"LMC" means Lyondell Methanol Company, L.P., a Texas limited partnership in
which the Borrower holds at the date hereof a 100% indirect equity interest.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Swing Loan and
"Loans" means any combination of the foregoing, as the context may require;
provided that, if any such Loan or Loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Loan" shall
refer to the combined principal amount resulting from such combination or to
each of the separate principal amounts resulting from such subdivision, as the
case may be.
"Loan Documents" means this Agreement, the Notes, the Subsidiary Guarantee
and the Collateral Documents.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(b).
"Lyondell TDI" means Lyondell Chimie France TDI, a French limited
partnership and a wholly-owned Subsidiary of the Borrower.
"Lyondell-Equistar Debt" has the meaning set forth in the definition of
"Existing Borrower Debt".
"Major Asset Sale" has the meaning set forth in Section 5.22.
"Major Casualty Proceeds" means (i) the aggregate insurance proceeds
received in connection with one or more related events by the Borrower or any of
its Subsidiaries under any Property Insurance Policy or (ii) any award or other
cash compensation with respect to any one or more related condemnations of
property (or any transfer or disposition of property in lieu of condemnation)
17
received by the Borrower or any of its Subsidiaries if the amount of such
aggregate insurance proceeds or award or other cash compensation exceeds
$10,000,000.
"Mandatory Prepayment Release Date" means the first date on which the
Borrower has Senior Debt Ratings at or above the level of Baa3 by Moody's and
BBB- by S&P.
"Margin Stock" has the meaning set forth in Regulation U.
"Material Adverse Effect" means (i) any material adverse effect upon the
financial condition, results of operations, assets or business of the Borrower
and its Subsidiaries, taken as a whole (other than general economic conditions
affecting the petrochemical industry as a whole); (ii) a material adverse effect
on the ability of the Obligors as a whole to perform their obligations under the
Loan Documents or (iii) any material adverse effect on the rights and remedies
of the Agents and the Lenders under this Agreement, the Notes and the other Loan
Documents.
"Material Debt" means Debt (other than the Loans and Reimbursement
Obligations) of the Borrower and/or one or more of its Subsidiaries (including
for this purpose the Borrower Joint Ventures, but excluding LCR so long as LCR
is not at the time a "Significant Subsidiary" for purposes of the instruments
governing the Senior Notes or the Senior Subordinated Notes), arising in one or
more related or unrelated transactions, in an aggregate principal amount
exceeding $50,000,000.
"Material Plan" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Maturity Date" means, (i) with respect to Revolving Loans, the Revolving
Credit Termination Date, (ii) with respect to Swing Loans, the Swing Loan
Termination Date and (iii) with respect to Term Loans, May 17, 2006.
"Maximum Cash Adjustment Amount" means an amount equal to the difference of
(i) the cash proceeds received by the Borrower from the issuance and sale of the
Series D Senior Secured Notes minus (ii) the sum of (A) the aggregate principal
amount of Term Loans prepaid on the Restatement Date plus (B) any fees, costs
and expenses reasonably incurred by the Borrower in respect of this Amended
Agreement and the Series D Senior Secured Notes.
"Medium Term Notes" means certain medium term notes issued by the Borrower
(in a form set forth as an exhibit to the Borrower's annual report on Form 10-K
for its fiscal year ended December 31, 1988, as filed with the SEC pursuant to
the Exchange Act), maturing at various dates from 2002 to 2005, and having a
weighted average interest rate at December 31, 2001 of 9.8%.
18
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to such
corporation's business of rating debt securities.
"Multiemployer Plan" means, at any time, an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NAIC" has the meaning set forth in Section 8.02.
"Net Cash Proceeds" means, with respect to any Reduction Event, an amount
equal to the cash proceeds received by the Borrower or any of its Subsidiaries
from or in respect of such Reduction Event (including any cash proceeds received
as interest or similar income on, or other cash proceeds of, any noncash
proceeds of any Asset Sale), less (at the option of the Borrower) (a) any fees,
costs and expenses reasonably incurred by such Person in respect of such
Reduction Event, (b) if such Reduction Event is an Asset Sale, (i) any taxes
actually paid or to be payable by such Person (as estimated by the chief
financial officer or chief accounting officer of the Borrower, giving effect to
the overall tax position of the Borrower) in respect of such Asset Sale, (ii)
the amount of all Debt (other than the Loans) secured by any assets subject to
that Asset Sale and subject to mandatory prepayment as a result of that Asset
Sale, (iii) the amount of any reserves established by the Borrower and its
Subsidiaries to fund contingent liabilities payable by the Borrower and its
Subsidiaries attributable to such Asset Sale (as estimated by the chief
financial officer or chief accounting officer of the Borrower), including,
without limitation, liabilities under any indemnification obligations and
severance and other employee termination costs associated with such Asset Sale,
until such time as such amounts are no longer reserved or such reserve is no
longer necessary (at which time any remaining amounts will become Net Cash
Proceeds), (iv) up to $150,000,000 (less the aggregate amount deducted from Net
Cash Proceeds in reliance on this subclause (iv) in connection with one or more
prior Asset Sales consummated on or after the Restatement Date) of such cash
proceeds, so long as the same are invested as capital contributions to the PO-11
JV within 360 days after the receipt thereof, or prior to or within such 360-day
period the Borrower has entered into a binding commitment to invest such cash
proceeds as capital contributions to the PO-11 JV; provided that at the end of
such 360-day period, any remaining amounts not so invested or subject to such
binding commitment will become Net Cash Proceeds; and provided further that any
cash proceeds subject to such a binding commitment which have not been invested
as capital contributions to the PO-11 JV prior to the 180th day following
expiration of the aforementioned 360-day period will become Net Cash Proceeds on
such 180th day, and (v) up to $50,000,000 (less the aggregate amount deducted
from Net Cash Proceeds in reliance on this subclause (v) in connection with one
or more prior Asset Sales) of such cash proceeds, so long as the same are
invested as
19
capital contributions to the PO-12 JV within 360 days after the receipt thereof,
or prior to or within such 360-day period the Borrower has entered into a
binding commitment to invest such cash proceeds as capital contributions to the
PO-12 JV; provided that at the end of such 360-day period, any remaining amounts
not so invested or subject to such binding commitment will become Net Cash
Proceeds; and provided further that any cash proceeds subject to such a binding
commitment which have not been invested as capital contributions to the PO-12 JV
prior to the 180th day following expiration of the aforementioned 360-day period
will become Net Cash Proceeds on such 180th day, and (c) if such Reduction Event
is an Equity Issuance, up to $300,000,000 of such cash proceeds so long as the
same are invested in LCR, directly or indirectly, substantially simultaneously
with the receipt thereof.
"Net Income" means, for any Person for any period, the net income of such
Person for such period, adjusted to exclude the effect of any extraordinary
items of gain or loss.
"Net Working Investment" means at any date current assets (exclusive of
cash and cash equivalents) minus current liabilities (exclusive of Debt).
"New York Interbank Offered Rate" has the meaning set forth in
Section 2.17(c).
"Non-JV Group" means the Borrower and its Consolidated Subsidiaries, but
excluding the Borrower Joint Ventures, the JV Subsidiaries and any non-wholly
owned Subject Assets Transferees.
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the Borrower's obligation to repay the Loans,
and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.06(a).
"Notice of Issuance" has the meaning set forth in Section 2.16(b).
"Notice of Swing Loan Borrowing" has the meaning set forth in
Section 2.17(b).
"Obligor" means the Borrower, each Subsidiary Guarantor and each JV
Subsidiary.
"Ordinary Course Liens" means the following Liens:
20
(a) Liens incurred and pledges and deposits made in the ordinary
course of business in connection with workers' compensation, disability or
unemployment insurance, old-age pensions, retiree health benefits and other
social security benefits and deposits securing liabilities to insurance
carriers under insurance or self-insurance arrangements;
(b) Liens securing the performance of bids, tenders, leases,
government and other contracts (other than for Debt), statutory and
regulatory obligations, surety, customs bonds and other obligations of a
like nature, incurred as an incident to and in the ordinary course of
business;
(c) Liens encumbering pipelines or pipeline facilities that
arise by operation of law, and other Liens imposed by law such as
carriers', warehousemen's, mechanics', materialmen's and vendors liens,
incurred in good faith in the ordinary course of business and securing
obligations which are not overdue for a period of more than 90 days or
which are being contested in good faith by appropriate proceedings;
(d) Liens securing the payment of taxes, assessments and
governmental charges or levies, either (i) not delinquent or (ii) being
contested in good faith by appropriate legal or administrative proceedings;
(e) (i) zoning restrictions, easements, licenses, reservations,
provisions, covenants, conditions, waivers, restrictions on the use of
property, minor irregularities of title and similar encumbrances incurred
or suffered in the ordinary course of business (and with respect to
leasehold interests, the interest of the landlord or owner in the leased
property and mortgages, obligations, liens and other encumbrances incurred,
created, assumed or permitted to exist and arising by, through or under a
landlord or owner of the leased property, with or without consent of the
lessee) and (ii) licenses or leases for patents, copyrights, trademarks,
tradenames and other intellectual property;
(f) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Borrower and its
Subsidiaries;
(g) customary Liens for the fees, costs and expenses of trustees
and escrow agents pursuant to any indenture, escrow agreement or similar
agreement establishing a trust or escrow arrangement, and Liens pursuant to
merger agreements, stock purchase agreements, asset sale agreements, option
agreements and similar agreements in respect of the disposition of property
or assets of the Borrower and the Subsidiaries, to the extent such
dispositions are permitted hereunder;
21
(h) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(i) customary Liens in favor of issuers of documentary letters
of credit;
(j) netting provisions and setoff rights in favor of
counterparties to agreements creating Derivative Obligations;
(k) prejudgment Liens which are being contested in good faith by
appropriate proceedings;
(l) judgment Liens which are being contested in good faith by
appropriate proceedings and Liens securing appeal or similar surety bonds
therefor; provided that (i) no Event of Default exists under Section
6.01(k) relating thereto and (ii) the aggregate amount secured by such
Liens does not exceed $250,000,000 (exclusive of Liens securing judgments
covered by (x) insurance in respect of which the carrier has not contested
coverage or (y) appeal or similar surety bonds);
(m) Liens not otherwise constituting Ordinary Course Liens on
cash or cash equivalents securing appeal or similar surety bonds, provided
that no Event of Default exists at the time any such Lien is created and no
Event of Default would exist at such time under Section 5.13 if (in the
event the judgment for which such bond is to be posted is not deducted as a
liability in determining Consolidated Net Worth) the amount of cash and
cash equivalents subject to such Liens were deducted from Consolidated Net
Worth; and
(n) Liens customarily granted in connection with Securitization
Transactions on related assets or interests of the Borrower or a
Subsidiary.
"Original Credit Agreement" has the meaning set forth in the recital.
"Other Taxes" has the meaning set forth in Section 8.04(a).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PBGC Settlement Agreement" means the settlement agreement effective as of
July 28, 1998 between the Borrower and the PBGC.
22
"Permitted Liens" means Liens permitted by Section 5.09.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means, at any time, an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PO-11 JV and PO-12 JV" each means a Future Joint Venture formed (or to be
formed) between the Borrower and one or more other Persons or their affiliates
in which the Borrower holds at the date hereof (or will hold when formed) not
less than a 50% direct or indirect equity interest, which Future Joint Venture
will construct, own and operate a propylene oxide and/or styrene plant.
"POSM" means POSM II Limited Partnership, L.P., a Delaware limited
partnership.
"Pricing Schedule" means the schedule attached hereto and identified as
such.
"Prime Rate" means the rate of interest publicly announced by JPMorgan
Chase Bank in New York City from time to time as its Prime Rate.
"Property Insurance Policy" means any insurance policy maintained by the
Borrower or any of its Subsidiaries covering losses with respect to tangible
real or personal property or improvements, but excluding coverage for losses
from business interruption.
"Quarterly Payment Dates" means each March 31, June 30, September 30 and
December 31.
"Rating Agency" means each of S&P and Xxxxx'x.
"Reduction Event" means (i) any Asset Sale (other than an Asset Sale, the
Net Cash Proceeds of which, when aggregated with the Net Cash Proceeds of any
related Asset Sale, do not exceed $10,000,000), (ii) any Debt Incurrence, (iii)
any Equity Issuance (other than (x) the initial Equity Issuance or Equity
Issuances after the date hereof, to the extent the aggregate Net Cash Proceeds
thereof do not exceed the sum of $100,800,000 plus (in the case of the initial
such Equity
23
Issuance) the proceeds of an over-allotment option of up to 15% and (y) any
other Equity Issuance if the Restricted Period has ended on or before the date
of consummation thereof), (iv) the LCR Recapitalization or (v) the receipt by
the Borrower or any Subsidiary of Major Casualty Proceeds, provided that with
respect to any such Major Casualty Proceeds, so long as no Event of Default has
occurred and is continuing, the receipt thereof shall not give rise to a
Reduction Event to the extent that (x) within 180 days after receipt of such
Major Casualty Proceeds, the Borrower or a Subsidiary shall have committed to
expend, and (y) within 540 days after receipt of such Major Casualty Proceeds
(or within such greater number of days as may be reasonably required to complete
such restoration or replacement), the Borrower or a Subsidiary shall have
actually expended such Major Casualty Proceeds for the restoration or
replacement of the asset in respect of which such Major Casualty Proceeds were
received, so that the Reduction Event, if any, occurring by reason of the
receipt of such Material Casualty Proceeds shall be deemed to occur on such
180th or 540th (or later) day following receipt thereof as to the amount thereof
not committed or expended as specified above. The description of any transaction
as falling within the above definition does not affect any limitation on such
transaction imposed by Article 5 of this Agreement.
"Reference Lenders" means the principal London offices of Bank of America,
N.A., Citibank, N.A. and JPMorgan Chase Bank.
"Refunding Date" has the meaning set forth in Section 2.17(h).
"Register" has the meaning set forth in Section 2.14.
"Regular Preferred Stock Payment" means, for any period, all fixed or
stated dividends paid or payable by the Borrower and its Consolidated
Subsidiaries during such period pursuant to the terms of any preferred equity
securities issued pursuant to an Equity Issuance after the date hereof.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Obligation" has the meaning set forth in Section 2.16(c).
"Related Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an affiliate of
such Lender.
"Release" means any discharge, emission or release into the environment of
a Hazardous Substance, including a Release as defined in CERCLA at 42 U.S.C.
Section 9601(22).
24
"Required Lenders" means, at any time, Lenders having in the aggregate,
more than 50% of the aggregate amount of the Credit Exposures at such time.
"Responsible Officer" means the President and Chief Executive Officer, any
Executive Vice President, any Senior Vice President, the Treasurer or the
Controller of the Borrower.
"Restatement Date" shall mean the date on which all the conditions
specified in Section 3.01 shall have been satisfied (or waived in accordance
with Section 9.05).
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock of the same class and rights or warrants to purchase
capital stock of the Borrower) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of the
Borrower's capital stock, but does not include (1) payments of principal,
premium (if any) or interest (or equivalent payments) made pursuant to the terms
of any Debt instrument which is (w) convertible into, (x) exchangeable for, (y)
part of an investment unit which includes or (z) otherwise associated with
capital stock, so long as such Debt continues to be Debt, or (2) payments
pursuant to employee compensation or benefit plans in the ordinary course of
business.
"Restricted Period" means the period from and including the Restatement
Date to and including the date on which Borrower first delivers the financial
statements and certificate required pursuant to Section 5.01(a) or (b) and
Section 5.01(c), respectively, demonstrating that the Compliance Test is
satisfied as of the date of such financial statements.
"Revolving Commitment" means,
(i) with respect to each Revolving Lender listed on the
signature pages hereof, the amount set forth opposite the name of such
Lender under the heading "Revolving Commitment" in the Commitment Schedule,
and
(ii) with respect to each Assignee which becomes a Revolving
Lender pursuant to Section 9.06(c), the amount of the Revolving Commitment
thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to Section
2.08 or increased or reduced by reason of an assignment to or by such Lender in
accordance with Section 9.06(c).
25
"Revolving Credit Percentage" means, with respect to any Revolving Lender
at any time, the percentage which the amount of its Revolving Commitment at such
time represents of the aggregate amount of all the Revolving Commitments at such
time. At any time after the Revolving Commitments shall have terminated, the
term "Revolving Credit Percentage" shall refer to a Revolving Lender's Revolving
Credit Percentage immediately before such termination, adjusted to reflect any
subsequent assignments pursuant to Section 9.06(c).
"Revolving Credit Period" means the period from and including the
Restatement Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means June 30, 2005 or, if such date is
not a Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month, in which
case the Revolving Credit Termination Date shall be the immediately preceding
Euro-Dollar Business Day.
"Revolving Lender" means each Lender identified in the Commitment Schedule
as having a Revolving Commitment and each Assignee which acquires a Revolving
Commitment and/or Revolving Loans pursuant to Section 9.06(c), and their
respective successors.
"Revolving Loan" means a loan made by a Revolving Lender pursuant to
Section 2.01.
"Revolving Outstandings" means, at any time as to any Revolving Lender, the
sum of (i) the aggregate principal amount of such Lender's Revolving Loans plus
(ii) such Lender's Letter of Credit Liabilities plus (iii) such Lender's
Revolving Credit Percentage of the aggregate outstanding principal amount of
Swing Loans.
"Rhodia" means Rhodia S.A., a French company and the successor in interest
to Xxxxx-Xxxxxxx Chemie S.A. under the TDI Agreements.
"Rhodia TDI Plant" means the manufacturing facilities for the production of
toluene diisocyanate, currently owned by Rhodia and located at Pont-de-Claix,
France.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to its business of rating debt
securities.
"SEC" means the Securities and Exchange Commission.
26
"Securitization Transaction" means any transaction in which the Borrower or
any Subsidiary sells or otherwise transfers an interest in accounts receivable
(i) to one or more third party purchasers or (ii) to a special purpose entity
that borrows against such accounts receivable or sells such accounts receivable
to one or more third party purchasers, but only to the extent that amounts
received in connection with the sale or other transfer of such accounts
receivable would not under GAAP be accounted for as liabilities on a
consolidated balance sheet of the Borrower.
"Senior Debt Rating" means a rating of the Borrower's senior long-term debt
which is not secured or supported by a guarantee (other than a guarantee issued
pursuant to Section 5.10(e)), letter of credit or other form of credit
enhancement; provided that if a Senior Debt Rating by a Rating Agency is
required to be at or above a specified level and such Rating Agency shall have
changed its system of classifications after the date hereof, the requirement
will be met if the Senior Debt Rating by such Rating Agency is at or above the
new rating which most closely corresponds to the specified level under the old
rating system; and provided further that the Senior Debt Rating in effect on any
date is that in effect at the close of business on such date.
"Senior Notes" means notes of the Borrower which (i) mature no earlier than
November 17, 2007, (ii) are not Guaranteed by any Person other than a Subsidiary
Guarantor (the terms of which Guarantee shall provide that it terminates
automatically upon any termination of the Subsidiary Guarantee of such
Subsidiary Guarantor), (iii) are not secured by any assets of any Person other
than all or any portion of the Collateral and, if so secured, the rights and
remedies of the holders of such notes with respect to such Collateral are
subject to security arrangements in form and substance satisfactory to the
Administrative Agent (which arrangements will provide, in any event, that all
Liens on all or any portion of the Collateral securing such notes shall be
automatically released concurrently with any release of the Liens on all or any
such portion of the Collateral securing the Loans (other than upon a complete
refinancing of the Loans and the Reimbursement Obligations with other Debt to be
secured by such Collateral)), and (iv) contain otherwise substantially the terms
and conditions as the Senior Secured Note Indentures (or, in the case of any
such notes issued after the Restatement Date, terms and conditions that are at
least as favorable to the Lenders as the terms and conditions set forth in the
Senior Secured Note Indentures, except that the interest rate applicable to such
notes shall be the then prevailing market rate or, if such notes are to be
fungible with previously issued notes, the interest rate shall, taken together
with the sales price of such notes, reflect then prevailing market rates);
provided that the outstanding principal amount thereof secured by the Collateral
Documents shall not exceed $3,050,000,000. As of the Restatement Date, after
giving effect to the issuance of the Series D Senior Secured Notes, the Senior
Notes consist of the notes issued on or prior to the Restatement Date under the
Senior Secured Note Indentures.
27
"Senior Subordinated Indenture" means the Indenture as of December 4, 2001
between the Borrower, the subsidiary guarantors party thereto and The Bank of
New York, as trustee, as amended from time to time, pursuant to which the
Borrower has issued the 10 7/8% Senior Subordinated Notes due 2009.
"Senior Secured Note Indentures" means, collectively, the Series A Senior
Secured Note Indenture, the Series B Senior Secured Note Indenture, the Series C
Senior Secured Note Indenture and the Series D Senior Secured Note Indenture.
"Senior Subordinated Notes" means unsecured notes of the Borrower which (i)
mature no earlier than the seventh anniversary of their date of issuance, (ii)
are not Guaranteed by any Person other than a Subsidiary Guarantor (the terms of
which Guarantee shall provide that it terminates automatically upon any
termination of the Subsidiary Guarantee of such Subsidiary Guarantor), (iii) are
subordinated (and the Guarantees of which are subordinated) to the obligations
of the Borrower (and any applicable Subsidiary Guarantor) to the Lenders
pursuant to subordination provisions no less favorable to the Lenders than those
set forth in the Senior Subordinated Indenture and (iv) contain other terms and
conditions no less favorable to the Borrower and the Lenders than those
contemplated by such form of indenture. As of the Restatement Date, the Senior
Subordinated Notes consist of the notes issued under the Senior Subordinated
Indenture.
"Series A Senior Secured Note Indenture" means the Series A Senior Note
Indenture dated as of May 17, 1999 among the Borrower, the subsidiary guarantors
party thereto and The Bank of New York, as trustee, as amended from time to
time, pursuant to which the Borrower issued the 9.625% Senior Notes due 2007.
"Series B Senior Secured Note Indenture" means the Series B Senior Note
Indenture dated as of May 17, 1999 among the Borrower, the subsidiary guarantors
party thereto and The Bank of New York, as trustee, as amended from time to
time, pursuant to which the Borrower issued the 9.875% Senior Notes Due 2007.
"Series C Senior Secured Note Indenture" means the Indenture dated as of
December 4, 2001 among the Borrower, the subsidiary guarantors party thereto and
The Bank of New York, as trustee, as amended from time to time, pursuant to
which the Borrower issued the 9.50% Senior Notes Due 2008.
"Series D Senior Secured Note Indenture" means the Indenture dated on or
about the Restatement Date, among the Borrower, the subsidiary guarantors party
thereto and The Bank of New York, as trustee, as amended from time to time,
having substantially the terms and conditions disclosed to the Lenders prior to
the date hereof and such other terms and conditions as may be reasonably
satisfactory to the Administrative Agent.
28
"Series D Senior Secured Notes" means the notes issued pursuant to the
Series D Senior Secured Note Indenture.
"Significant Subsidiary" means, at any date, any Subsidiary having
consolidated assets equal to or greater than 5% of the consolidated assets of
the Borrower and its Consolidated Subsidiaries at such time; provided that
neither POSM nor any Subsidiary whose only significant assets are partnership
interests in POSM shall be a Significant Subsidiary for purposes of the
definition of "Subsidiary Guarantors" or Section 4.09.
"Special Purpose Subsidiary" means a Subsidiary formed solely for the
purpose of, and whose activities consist solely of, engaging in a Securitization
Transaction or the issuance of an Equity Equivalent.
"Specified Business Acquisition" means (i) the acquisition in whole or in
part by the Borrower or any of its Subsidiaries of a butanediol production
facility in Botlek, The Netherlands (known as BDO-2), whether by acquisition of
securities, property or assets, (ii) the acquisition by the Borrower of the
interests of Occidental Petroleum Corporation in Equistar pursuant to the
transactions described in the Information Memorandum or (iii) the acquisition by
the Borrower or any of its Subsidiaries of additional interests in Equistar,
either directly or through the acquisition of wholly-owned Subsidiaries that own
such interest either directly or indirectly through wholly-owned Subsidiaries,
so long as such acquisition is in exchange for common equity securities of the
Borrower (or cash funded by a substantially simultaneous sale of common equity
securities of the Borrower to the seller or an affiliate of the seller).
"Stop Issuance Notice" has the meaning set forth in Section 2.18.
"Subject Assets" has the meaning set forth in Section 5.22.
"Subject Assets Transferee" has the meaning set forth in Section 5.22.
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person. Unless
otherwise specified, "Subsidiary" (i) means a Subsidiary of the Borrower and
(ii) does not, except where otherwise specifically indicated, include any
Borrower Joint Venture.
"Subsidiary Guarantee" means the Subsidiary Guarantee dated as of the
Closing Date from each Subsidiary Guarantor in favor of the Administrative
Agent.
29
"Subsidiary Guarantors" means each Significant Subsidiary of the Borrower
(excluding any Borrower Joint Venture, any JV Subsidiary and any Foreign
Subsidiary) on the Restatement Date, and any other Person that becomes a party
to the Subsidiary Guarantee pursuant to Section 5.19, and "Subsidiary Guarantor"
means any one of them.
"Swing Credit Period" means the period from and including the first
Domestic Business Day after the Closing Date to but not including the Swing Loan
Termination Date.
"Swing Loan" means a Loan made by the Swing Loan Lender pursuant to Section
2.17.
"Swing Loan Commitment" means $20,000,000 or, if less, the aggregate amount
of the Revolving Commitments.
"Swing Loan Lender" means JPMorgan Chase Bank, in its capacity as the Swing
Loan Lender under the swing loan facility described in Section 2.17.
"Swing Loan Termination Date" means the tenth Euro-Dollar Business Day
prior to the Revolving Credit Termination Date.
"Taxes" has the meaning set forth in Section 8.04(a).
"TDI Agreements" means (i) the Share Purchase Agreement dated as of January
23, 1995 between ARCO Chemical Europe Inc. and Xxxxx-Xxxxxxx Chemie S.A., as
such agreement may be amended, supplemented or otherwise modified from time to
time, (ii) the Processing Agreement dated as of January 23, 1995 between ARCO
Chemical Chemie TDI and Xxxxx-Xxxxxxx Chemie S.A., as such agreement may be
amended, supplemented or otherwise modified from time to time, and (iii) the TDI
License.
"TDI Assets" means (i) all of the rights of ARCO Chemical Europe Inc., ARCO
Chemical Chemie TDI, ARCO Chemical Technology LP and their respective successors
under the TDI Agreements, and (ii) all of Lyondell TDI's customer lists relating
to the Rhodia TDI Plant.
"TDI License" means the TDI Technology Agreement dated as of January 23,
1995 between ARCO Chemical Technology LP and Xxxxx-Xxxxxxx Chemie S.A., as such
agreement may be amended, supplemented or otherwise modified from time to time.
"TDI Restructuring" means (i) actions taken by the Borrower to reorganize
and streamline its Isocyanates business, including the shutdown of the
Borrower's aliphatics diisocyanates manufacturing facility located at its Lake
Charles, Louisiana facility and the restructuring of the remaining toluene
30
diisocyanates business at the Lake Charles, Louisiana facility, and (ii) any
reduction in the Borrower's workforce, any demolition, remediation or
reclamation, or any termination or amendment of feedstock, energy, supply or
other contracts, in each case resulting from the activity described in clause
(i) above.
"TDI Sale" means an Asset Sale of all or any part of the Borrower's
Isocyanates business (including the transfer or assignment of the TDI Assets or
the TDI Agreements), whether consisting of one transaction or more than one
related or unrelated transactions.
"Temporary Cash Investments" shall mean any Investment in (a) securities
issued or directly and fully guaranteed or insured by the United States of
America government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition, (b) demand deposits, time
deposits and certificates of deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year from the date of acquisition and overnight bank deposits, in each case with
any bank or trust company organized or licensed under the laws of the United
States of America or any State thereof having capital, surplus and undivided
profits in excess of $250 million, (c) repurchase obligations with a term of not
more than seven days for underlying securities of the type described in clauses
(a) and (b) above entered into with any financial institution meeting the
qualifications specified in clause (b) above, (d) commercial paper rated at
least P-1 by Xxxxx'x and A-1 by S&P or, if such commercial paper is rated by
only one such agency, at least such rating from such agency, (e) investments in
any Dollar denominated money market fund as defined by Rule 2a-7 of the General
Rules and Regulations promulgated under the Investment Company Act of 1940 and
(f) in the case of a Foreign Subsidiary, substantially similar investments
denominated in foreign currencies (including similarly capitalized foreign
banks).
"Term Loan" means a loan made by a Term Loan Lender, as described in
Section 2.01(b). The Term Loans are the "Term Loans-E", as defined in the
Original Credit Agreement.
"Term Loan Lender" means each Lender identified in the Term Loan Schedule
and each Assignee which acquires any Term Loan pursuant to Section 9.06(c), and
their respective successors.
"Term Loan Prepayment Notice" has the meaning set forth in Section 2.04(e).
"Term Loan Schedule" means the Schedule attached hereto and identified as
such.
31
"Term Loan Unscheduled Prepayment" has the meaning set forth in Section
2.04(e)(i).
"Type" has the meaning set forth in Section 1.03.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America.
"Unscheduled Prepayment Date" has the meaning set forth in Section 2.04(e).
"Voting Control" means with respect to any security the right to exercise,
or to direct the exercise of, the voting rights of a holder of such security;
provided that a Person shall not be deemed to have Voting Control of shares of
common stock of the Borrower if such Person is or such shares are subject to a
valid contract arrangement whereby such shares are voted as directed by the
board of directors of the Borrower and/or in the same proportions as all other
shares of common stock of the Borrower are voted.
"Working Capital Facility" means a committed or uncommitted revolving
credit facility entered into by the Borrower or a Subsidiary to obtain working
capital financing in the ordinary course of business.
Section 1.02. Accounting Terms and Determinations. (a) Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any provision hereof to eliminate the effect of any
change in GAAP (or if the Administrative Agent notifies the Borrower that the
Required Lenders wish to amend any provision hereof for such purpose), then such
provision shall be applied on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such provision is amended in a manner satisfactory to the Borrower and the
Required Lenders.
32
(b) Calculations with respect to the Non-JV Group shall be made on a basis
consolidating the members of the Non-JV Group in accordance with GAAP, except
that there shall be excluded any amounts of income attributable to any Borrower
Joint Venture, JV Subsidiary or non-wholly owned Subject Assets Transferee,
whether or not such amount was or was available to be distributed to a member of
the Non-JV Group during any relevant period.
(c) In the event of any future material acquisition or disposition of
assets by the Borrower and its Consolidated Subsidiaries (other than (i) a TDI
Sale and (ii) the TDI Restructuring), determinations of Adjusted EBITDA for
purposes of Section 5.11 shall be made on a pro forma basis as if such
transaction had been consummated on the first day of such period, reflecting the
benefit of such anticipated expense reductions and similar synergies as such
reductions and synergies could properly be reflected in pro forma financial
statements included in a registration statement filed under the Securities Act
of 1933, as amended.
Section 1.03. Classes and Types of Loans and Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Lenders to be made
to the Borrower pursuant to Article 2 on the same date, all of which Loans are
of the same Class and Type (subject to Article 8) and, in the case of
Euro-Dollar Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers
to the determination whether such Loan is a Term Loan, Revolving Loan or Swing
Loan, each of which constitutes a Class. The "Type" of a Loan refers to the
determination whether such Loan is a Euro-Dollar Loan or a Base Rate Loan, each
of which constitutes a "Type". Identification of a Loan (or a Borrowing) by both
Class and Type (e.g., a "Euro-Dollar Term Loan") indicates that such Loan is
both a Term Loan and a Euro-Dollar Loan (or that such Borrowing is comprised of
such Loans).
Section 1.04. Other Definitional Provisions. References in this Agreement
to "Articles", "Sections", "Schedules" or "Exhibits" shall be to Articles,
Sections, Schedules or Exhibits of or to this Agreement unless otherwise
specifically provided. Any of the terms defined in Section 1.01 may, unless the
context otherwise requires, be used in the singular or plural depending on the
reference. "Include" or "includes" and "including" shall be deemed to be
followed by "without limitation" whether or not they are in fact followed by
such words or words of like import. "Writing", "written" and comparable terms
refer to printing, typing and other means of reproducing words in a visible
form. References to any agreement or contract are to such agreement or contract
as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof. References to any Person include the successors and
assigns of such Person. References "from" or "through" any date mean, unless
otherwise specified, "from and including" or "through and including",
respectively.
33
ARTICLE 2
THE CREDITS
Section 2.01. Facilities. (a) Revolving Credit Facility. During the
Revolving Credit Period, each Revolving Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make Revolving Loans to the
Borrower from time to time in an aggregate amount such that, after giving effect
to such Loans, the Revolving Outstandings of such Lender do not exceed the
amount of its Revolving Commitment. Each Revolving Borrowing shall be in the
aggregate principal amount of $10,000,000 or any larger multiple of $1,000,000
(except that any such Borrowing may be in the aggregate amount of the unused
Revolving Commitments), and shall be made from the several Revolving Lenders
ratably in proportion to their respective Revolving Commitments. Within the
limits specified in this Agreement, the Borrower may borrow under this Section
2.01, prepay Revolving Loans to the extent permitted by Section 2.09 and
reborrow at any time during the Revolving Credit Period pursuant to this Section
2.01.
(b) Term Loan Facility. The Term Loans were advanced to the Borrower on
May 17, 1999 pursuant to the Original Credit Agreement, and there is no further
commitment to make Term Loans hereunder. As of the Restatement Date, after
giving effect to the prepayments to be made on the Restatement Date, the
outstanding principal amount of the Term Loan of each Term Lender will be as set
forth on the Term Loan Schedule. Principal amounts of Term Loans repaid or
prepaid pursuant to Section 2.04 or Section 2.09 shall not be reborrowed.
Section 2.02. Notice of Borrowing. The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") not later than 11:30 A.M.
(New York City time) (i) on the date of each Base Rate Borrowing and (ii) on the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) the initial Type of Loans comprising such Borrowing; and
(d) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
Section 2.03. Notice to Lenders; Funding of Loans. (a) Promptly after
receiving a Notice of Borrowing, the Administrative Agent shall notify each
Lender of the contents thereof and of such Lender's share of such Borrowing.
34
(b) Not later than 1:00 P.M. (New York City time) on the date of each
Borrowing, each Lender participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant to.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Lender before the 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
to the Administrative Agent on the date of such Borrowing in accordance with
Section 2.03(b) and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such share
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) if such amount is repaid by the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable to such Borrowing pursuant to Section 2.05 and (ii) if
such amount is repaid by such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, the Borrower
shall not be required to repay such amount and the amount so repaid by such
Lender shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement.
Section 2.04. Maturity of Loans; Mandatory Prepayments. (a) Maturity Date.
Each Loan of each Class shall mature, and the outstanding principal amount
thereof shall be due and payable (together with interest accrued thereon), on
the Maturity Date for such Class of Loans.
(b) Scheduled Amortization. On each Quarterly Payment Date occurring after
the Restatement Date and on or prior to the fourth Quarterly Payment Date prior
to the Maturity Date of the Term Loans the Borrower shall repay, and there shall
become due and payable, an aggregate principal amount of the Term Loans equal to
$1,085,000. On each Quarterly Payment Date occurring thereafter, the Borrower
shall repay, and there shall become due and payable, an aggregate principal
amount of the Term Loans equal to 25% of the aggregate principal amount of the
Term Loans outstanding on the fourth Quarterly Payment Date prior to the
Maturity Date of the Term Loans (immediately after giving effect to the
repayment of the Term Loans made by the Borrower on such Quarterly Payment Date
pursuant to the preceding sentence) or, if less, the aggregate
35
principal amount of the Term Loans then outstanding (as each such amount may be
reduced pursuant to Section 2.04 and Section 2.09).
(c) Prepayment and Reduction of Term Loans. In addition, at any time prior
to the Mandatory Prepayment Release Date, the Borrower shall, subject to
subsections (e) and (f) of this Section, prepay Term Loans as follows:
(i) Upon the receipt by the Borrower or any of its Subsidiaries
of Net Cash Proceeds in respect of any Reduction Event, the Borrower shall
prepay the Term Loans in an amount equal to such Net Cash Proceeds;
provided that if the Net Cash Proceeds in respect of any Reduction Event
are less than $10,000,000, no such prepayment shall be required until the
amount of such Net Cash Proceeds, together with the amount of all other Net
Cash Proceeds in respect of which no prepayment under this subsection
(c)(i) shall have theretofore been made, are equal to at least $10,000,000.
The Borrower shall give the Administrative Agent at least three Euro-Dollar
Business Days' notice of each prepayment required to be made pursuant to
this subsection (c)(i).
(ii) On the 100th day following the last day of each Fiscal Year
ending during the Restricted Period, the Borrower shall prepay the Term
Loans in an amount equal to the Excess Cash Flow Prepayment Amount for such
Fiscal Year.
(d) Application of Prepayments and Repayments. (i) Each prepayment of the
Term Loans shall be applied ratably to the respective Term Loans of all Term
Loan Lenders, subject to subsection (e) of this Section.
(ii) The amount of any prepayments of Term Loans pursuant to
subsection (c) of this Section shall be applied to reduce the amount of the
subsequent scheduled prepayments of the Term Loans required pursuant to
subsection (b), at the Borrower's option, either pro rata to all remaining
scheduled prepayments or pro rata to the final four scheduled principal
payments of the Term Loans.
(iii) Each payment of principal of the Term Loans shall be made
together with interest accrued and unpaid on the amount repaid to the date
of payment.
(iv) Each payment of the Term Loans shall be applied to such
Group or Groups of Term Loans as the Borrower may designate (or, failing
such designation, as determined by the Administrative Agent).
(e) Option of Term Loan Lenders Not to Accept Mandatory Prepayments. (i)
At least five Euro-Dollar Business Days prior to any date (an "Unscheduled
Prepayment Date") on which any prepayment of the Term Loans
36
(a "Term Loan Unscheduled Prepayment") would, but for the provisions of this
subsection (e), otherwise be required pursuant to subsection (c) of this
Section, the Borrower shall deliver a notice conforming to the requirements of
subsection (d)(ii) (a "Term Loan Prepayment Notice") to the Administrative
Agent. Upon receipt of any Term Loan Prepayment Notice, the Administrative Agent
shall promptly notify each Term Loan Lender of the contents thereof, and such
Term Loan Unscheduled Prepayment shall not occur on such Unscheduled Payment
Date but shall instead be deferred as hereinafter provided in this subsection
(d).
(ii) Each Term Loan Prepayment Notice shall be in writing, shall
refer to this Section and shall (w) set forth the amount (or if
unascertainable at such time, the maximum and minimum amounts) of the Term
Loan Unscheduled Prepayment and the prepayment that the applicable Term
Loan Lender will be entitled to receive if it accepts prepayment of its
Term Loans in accordance with this subsection, (x) contain an offer to
prepay on a specified date (each such date, a "Deferred Term Loan
Unscheduled Prepayment Date"), which shall be the tenth Euro-Dollar
Business Day after the date of such Term Loan Prepayment Notice, the Term
Loans of such Term Loan Lender by an aggregate principal amount equal to
such Term Loan Lender's ratable share of such Term Loan Unscheduled
Prepayment (determined by reference to the outstanding principal amount of
such Lender's Term Loan as a proportion of the aggregate outstanding
principal amount of the Term Loans of all of the Term Loan Lenders), (y)
request such Term Loan Lender to notify the Borrower and the Administrative
Agent in writing, no later than the third Euro-Dollar Business Day prior to
the Deferred Term Loan Unscheduled Prepayment Date, of such Term Loan
Lender's acceptance or rejection (in each case, in whole and not in part)
of such offer of prepayment and (z) inform such Term Loan Lender that the
failure by such Term Loan Lender to reject such offer in writing on or
before the third Euro-Dollar Business Day prior to such Deferred Term Loan
Unscheduled Prepayment Date shall be deemed an acceptance of such
prepayment offer. Notwithstanding the foregoing, if the Borrower has
delivered notice pursuant to Section 2.09 to prepay in full the Term Loans
in connection with the occurrence of a Reduction Event, the Borrower shall
not be required to deliver a Term Loan Prepayment Notice in connection with
such Reduction Event.
(iii) Subject to subsection (f) of this Section, on each Deferred
Term Loan Unscheduled Prepayment Date, the Borrower shall pay to the
Administrative Agent for application to the prepayment of the outstanding
Term Loans of each of the Term Lenders that shall have accepted (or been
deemed to have accepted) prepayment (each, an "Accepting Term Lender"), an
amount equal to the aggregate ratable shares (determined as specified in
paragraph (i) above) of the Accepting Term Lenders of the amount that would
have been payable by the Borrower pursuant to
37
subsection (b) of this Section on the related Unscheduled Prepayment Date
but for the provisions of this subsection (e).
(f) Deferred Payment. If subsections (c) and (e) of this Section would
otherwise require prepayment of Euro-Dollar Loans or portions thereof prior to
the last day of the then current Interest Period therefor, each such prepayment
may, if the Borrower so elects and unless the Administrative Agent otherwise
notifies the Borrower upon the instructions of the Required Lenders, be deferred
to such last day of the related Interest Period. The Borrower shall use
reasonable efforts to minimize any deferrals of payments pursuant to this
subsection.
(g) Remaining Net Cash Proceeds. To the extent that the aggregate amount
required to be paid to the Accepting Term Lenders with respect to any Prepayment
Event is less than the Net Cash Proceeds of such Reduction Event, the Borrower
or relevant Subsidiary may, subject to the other terms of this Agreement, use
any such remaining Net Cash Proceeds for any purpose not prohibited by this
Agreement.
Section 2.05. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the sum of the
Applicable Margin and the Base Rate for such day. Such interest shall be payable
quarterly in arrears on each Quarterly Payment Date. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of the Applicable Margin
plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Applicable Margin for such day plus the
London Interbank Offered Rate applicable to such Interest Period. Such interest
shall be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period means
the rate appearing on Page 3750 of the Telerate screen, at approximately 11:00
A.M. (London time) two Euro-Dollar Business Days before the first day of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "London Interbank Offered Rate" applicable to such
Interest Period shall be the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the respective rates per annum at which deposits in
dollars are offered to each of the Reference Lenders in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the
38
principal amount of the Euro-Dollar Loan of such Reference Lender to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period. If any Reference Lender does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis of
the quotation or quotations furnished by the remaining Reference Lender or
Lenders or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of the Applicable Margin for such day plus
the London Interbank Offered Rate applicable to such Loan on the day before such
payment was due and (ii) the sum of the Applicable Margin for such day plus a
rate per annum equal to the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than three months
as the Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Reference Lenders
are offered to such Reference Lender in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in clause 8.01(a) or
8.01(b) shall exist, at a rate per annum equal to the rate applicable to overdue
Base Rate Loans of such Class for such day).
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall promptly notify the
Borrower and the Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Administrative Agent if and when contemplated by this Section.
Section 2.06. Method of Electing Interest Rates. (a) The Loans included in
each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Group of Term Loans or Revolving Loans (subject to subsection (d) and the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
39
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans as of any Domestic Business Day or
elect to continue such Loans as Euro-Dollar Loans for an additional
Interest Period, subject to Section 2.11 if any such conversion is
effective on any day other than the last day of an Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 11:30 A.M. (New York
City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $10,000,000 (unless such portion is comprised of Base
Rate Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to Base Rate Loans at the end of
such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new Type of Loans and, if the Loans resulting from such conversion are to
be Euro-Dollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Lender of the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
40
(d) The Borrower shall not be entitled to elect to convert any Loans to,
or continue any Loans for an additional Interest Period as, Euro-Dollar Loans if
(i) the aggregate principal amount of any Group of Euro-Dollar Loans created or
continued as a result of such election would be less than $10,000,000 or (ii) a
Default shall exist when the Borrower delivers notice of such election to the
Administrative Agent.
(e) If any Loan is converted to a different Type of Loan, the Borrower
shall pay, on the date of such conversion, the interest accrued to such date on
the principal amount being converted.
Section 2.07. Fees. (a) During the Revolving Credit Period, the Borrower
shall pay to the Administrative Agent for the account of the Revolving Lenders
ratably in proportion to their Revolving Commitments commitment fees at the
Commitment Fee Rate (determined daily in accordance with the Pricing Schedule)
on the daily amount by which the aggregate amount of the Revolving Commitments
exceeds the sum of (i) the aggregate outstanding principal amount of Revolving
Loans and (ii) the aggregate Letter of Credit Liabilities. Such commitment fee
shall accrue from and including the Restatement Date to but excluding the date
of termination of the Revolving Commitments in their entirety.
(b) The Borrower shall pay to the Administrative Agent (i) for the account
of the Revolving Lenders ratably a letter of credit fee accruing daily on the
aggregate undrawn amount of all outstanding Letters of Credit at a rate per
annum equal to the Applicable Margin for Revolving Euro-Dollar Loans for such
day and (ii) for the account of each Issuing Bank a letter of credit fronting
fee accruing daily on the aggregate amount then available for drawing under all
Letters of Credit issued by such Issuing Bank at a rate per annum mutually
agreed between the Borrower and such Issuing Bank from time to time.
(c) Accrued commitment and letter of credit fees under this Section shall
be payable quarterly in arrears on each Quarterly Payment Date and on the date
of termination of the Revolving Commitments in their entirety.
Section 2.08. Termination or Reduction of Commitments. (a) The Borrower
may, upon at least three Domestic Business Days' notice to the Administrative
Agent, (i) terminate the Commitments of any Class at any time, if no Loans of
such Class (and, in the case of the Revolving Commitments, no Letter of Credit
Liabilities and no Swing Loans) are outstanding at such time (after giving
effect to any mandatory or optional prepayments to be made at such time) or (ii)
ratably reduce from time to time by an aggregate amount of $10,000,000 or any
larger multiple of $1,000,000 the aggregate amount of the Commitments of any
Class in excess of the aggregate outstanding principal amount of the Loans of
such Class (and, in the case of the Revolving Commitments, the aggregate
principal amount of the Letter of Credit Liabilities and Swing Loans). Promptly
after receiving a notice of a termination or
41
reduction of Commitments, the Administrative Agent shall notify each Lender of
each relevant Class of the contents thereof.
(b) Unless previously terminated, the Revolving Commitments shall
terminate in their entirety on the Revolving Credit Termination Date.
(c) The Swing Loan Commitment shall terminate in its entirety on the
earlier of the Swing Loan Termination Date or the date on which the Revolving
Commitments terminate in their entirety.
Section 2.09. Optional Prepayments. (a) Subject in the case of Euro-Dollar
Loans to Section 2.11, the Borrower may (i) upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any Group of Base Rate Loans of
any Class or (ii) upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, prepay any Group of Euro-Dollar Loans of any Class, in
each case in whole at any time, or from time to time in part in amounts
aggregating $10,000,000 or any larger multiple of $1,000,000 by paying the
principal amount to be prepaid together with interest accrued thereon to the
date of prepayment; provided that upon any optional prepayment of the Term Loans
on or prior to May 17, 2004, the Borrower shall also pay a prepayment fee equal
to the Applicable Term Loans Prepayment Fee Percentage of the principal amount
of such Term Loans being prepaid.
(b) Promptly after receiving a notice of prepayment pursuant to this
Section, the Administrative Agent shall notify each Lender of the contents
thereof and of such Lender's ratable share (if any) of such prepayment, and such
notice shall not thereafter be revocable by the Borrower.
(c) The amount of any prepayment of Term Loans pursuant to this Section
shall be applied to either, at the Borrower's option, (i) first, to the next
scheduled payment in respect of such Loans pursuant to Section 2.04(b) to the
extent necessary to reduce such next scheduled payment to zero, and, second, pro
rata to all subsequent scheduled payments in respect of such Loans pursuant to
Section 2.04(b) or (ii) pro rata to the final four scheduled principal payments
of the Term Loans.
(d) Notwithstanding the foregoing, if the Borrower includes in its notice
to the Administrative Agent pursuant to Section 2.09(a) of its election to
prepay any Group of Loans (which for purposes of this subsection (d) may include
an election to prepay Term Loans) that the Lenders may reject the prepayment so
proposed by the Borrower, then the provisions of Section 2.04(e), (f) and (g)
shall apply to any such offered prepayment, mutatis mutandis, as though the
offered prepayment were a mandatory prepayment of the Term Loans pursuant to
Section 2.04(c)(i) or (ii); provided, however, to the extent any Lender accepts
a prepayment offered pursuant to this subsection (d), such prepayment shall be
made together with any applicable premium specified in Section 2.09.(a).
42
Section 2.10. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans, of Letter of
Credit Liabilities or interest thereon or of fees hereunder not later than 1:00
P.M. (New York City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 9.01. The Administrative Agent will
promptly distribute to each Lender its ratable share of each such payment
received by the Administrative Agent for the account of the Lenders. Whenever
any payment of principal of, or interest on, the Base Rate Loans, of Letter of
Credit Liabilities or interest thereon or of fees hereunder shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the immediately preceding Euro-Dollar Business Day. If the date
for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Borrower notifies the Administrative Agent before the date
on which any payment is due to the Lenders hereunder that the Borrower will not
make such payment in full, the Administrative Agent may assume that the Borrower
has made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance on such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
Section 2.11. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (whether such payment or conversion is pursuant to
Article 2, 6 or 8 or otherwise) on any day other than the last day of an
Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.05(c), or if the Borrower fails to borrow, prepay,
convert or continue any Fixed Rate Loan after notice has been given to any
Lender in accordance with Section 2.02(a), 2.06(c), 2.09(b), or 2.17, the
Borrower shall reimburse each Lender requesting such reimbursement within 15
days after demand for any resulting loss or expense incurred by it (or by a
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period
43
after such payment or conversion or failure to borrow, prepay, convert or
continue; provided that such Lender shall have delivered to the Borrower a
certificate setting forth in reasonable detail the calculation of the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
Section 2.12. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.13. Notes. (a) If a Lender so requests in writing, the
Borrower's obligation to repay the Loans of such Lender shall be evidenced by a
single Note payable to the order of such Lender for the account of its
Applicable Lending Office.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that the Borrower's obligation to repay such Lender's Loans of a
particular Type or Class be evidenced by a separate Note. Each such Note shall
be in substantially the form of Exhibit A hereto with appropriate modifications
to reflect the fact that it relates solely to Loans of the relevant Type or
Class. Each reference in this Agreement to the "Note" of such Lender shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Promptly after it receives any Lender's Note pursuant to Article 3,
the Administrative Agent shall forward such Note to such Lender. Each Lender
shall record the date, amount, Class and Type of each Loan made by it and the
date and amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that a Lender's failure to make (or any
error in making) any such recordation or endorsement shall not affect the
Borrower's obligations hereunder or under the Notes. Each Lender is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
Section 2.14. Registry. The Administrative Agent, acting for this purpose
as an agent of the Borrower, shall maintain a register (the "Register") on which
it will record the name and Commitment of each Lender, each Loan made by such
Lender and each repayment of any Loan made by such Lender. With respect to any
Lender, the assignment or other transfer of the Commitments of such Lender and
the rights to the principal of, and interest on, any Loan made and Note issued
pursuant to this Agreement shall not be effective until such assignment or other
44
transfer is recorded on the Register and otherwise complies with Section
9.06(c). Upon receipt of a properly executed and delivered Assignment and
Assumption Agreement referred to in Section 9.06(c), the Administrative Agent
shall accept such Assignment and Assumption Agreement and record such assignment
or other transfer of all or part of any Commitments, Loans and Notes for a
Lender on the Register. The Register shall be available at the offices where
kept by the Administrative Agent for inspection by the Borrower and any Lender
at any reasonable time upon reasonable prior notice to the Administrative Agent.
Each Lender shall record on its internal records (including computerized
systems) the foregoing information as to its own Commitments and Loans. Failure
to make any such recordation, or any error in such recordation, shall not affect
the obligations of any Obligor under the Loan Documents.
Section 2.15. Regulation D Compensation. If and so long as a reserve
requirement of the type described in the definition of "Euro-Dollar Reserve
Percentage" is prescribed by the Board of Governors of the Federal Reserve
System (or any successor), each Lender subject to such requirement may require
the Borrower to pay, contemporaneously with each payment of interest on each of
such Lender's Euro-Dollar Loans, additional interest on such Euro-Dollar Loan at
a rate per annum determined by such Lender up to but not exceeding the excess of
(i) (A) the applicable London Interbank Offered Rate divided by (B) one minus
the Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Lender wishing to require payment of such additional interest
(x) shall so notify the Borrower and the Administrative Agent, in which case
such additional interest on the Euro-Dollar Loans of such Lender shall be
payable to such Lender at the place indicated in such notice with respect to
each Interest Period commencing at least three Euro-Dollar Business Days after
such Lender gives such notice and (y) shall notify the Borrower at least five
Euro-Dollar Business Days before each date on which interest is payable on the
Euro-Dollar Loans of the amount then due it under this Section. It is understood
that (x) no additional interest is payable under this Section in respect of
Euro-Dollar Loans not paid when due and (y) amounts claimed by any Lender under
this Section shall be based on an assumed level of reserves maintained by it
which is consistent with such Lender's good faith estimate of the actual level
at which the related reserves are required to be maintained by it over time.
Section 2.16. Letters of Credit. (a) Commitment to Issue Letters of
Credit. (i) Subject to the terms and conditions hereof, and so long as no Stop
Issuance Notice is in effect, each Issuing Bank agrees to issue Letters of
Credit from time to time before the Letter of Credit Termination Date upon the
request of the Borrower; provided that, immediately after each Letter of Credit
is issued (i) the aggregate amount of the Revolving Outstandings shall not
exceed the aggregate amount of the Revolving Commitments and (ii) the aggregate
amount of the Letter of Credit Liabilities shall not exceed $150,000,000. Upon
the date of issuance by an Issuing Bank of a Letter of Credit, the Issuing Bank
shall be
45
deemed, without further action by any party hereto, to have sold to each
Revolving Lender, and each Revolving Lender shall be deemed, without further
action by any party hereto, to have purchased from the Issuing Bank, a
participation in such Letter of Credit and the related Letter of Credit
Liabilities in the proportion its respective Revolving Commitment bears to the
aggregate Revolving Commitments.
(ii) On the Restatement Date, without further action by any party
hereto, each Issuing Bank that has issued an Existing Letter of Credit
shall be deemed to have granted to each Revolving Lender, and each
Revolving Lender shall be deemed to have acquired from such Issuing Bank, a
participation in each Existing Letter of Credit and the related Letter of
Credit Liabilities in the proportion its respective Revolving Commitment
bears to the aggregate Revolving Commitments, all on the same terms and
conditions as if such Existing Letters of Credit had been issued on the
Restatement Date pursuant to Section 2.16(a)(1). Each Lender party to the
Original Credit Agreement, including each Departing Lender, agrees that its
participation in the Existing Letters of Credit acquired pursuant to the
Original Credit Agreement shall be cancelled on the Restatement Date
without further action by any party.
(b) Method for Issuance; Terms; Extensions. (i) The Borrower shall give
the Issuing Bank notice at least five Domestic Business Days (or such shorter
notice as may be acceptable to the Issuing Bank in its discretion) prior to the
requested issuance of a Letter of Credit specifying the date such Letter of
Credit is to be issued, and describing the terms of such Letter of Credit and
the nature of the transactions to be supported thereby (such notice, including
any such notice given in connection with the extension of a Letter of Credit, a
"Notice of Issuance"). Upon receipt of a Notice of Issuance, the Issuing Bank
shall promptly notify the Administrative Agent, and the Administrative Agent
shall promptly notify each Revolving Lender of the contents thereof and of the
amount of such Lender's participation in such Letter of Credit.
(ii) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 3.02,
be subject to the conditions precedent that such Letter of Credit shall be
in such form and contain such terms as shall be reasonably satisfactory to
the Issuing Bank and that the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letter of Credit as
the Issuing Bank shall have reasonably requested. The Borrower shall also
pay to the Issuing Bank for its own account issuance, drawing, amendment
and extension charges in the amounts and at the times as agreed between the
Borrower and the Issuing Bank.
(iii) The extension or renewal of any Letter of Credit shall be
deemed to be an issuance of such Letter of Credit, and if any Letter of
46
Credit contains a provision pursuant to which it is deemed to be extended
unless notice of termination is given by the Issuing Bank, the Issuing Bank
shall timely give such notice of termination unless it has theretofore
timely received a Notice of Issuance and the other conditions to issuance
of a Letter of Credit have also theretofore been met with respect to such
extension. No Letter of Credit shall have a term of more than one year;
provided that a Letter of Credit may contain a provision pursuant to which
it is deemed to be extended on an annual basis unless notice of termination
is given by the Issuing Bank; provided further that no Letter of Credit
shall have a term extending or be so extendible beyond the Letter of Credit
Termination Date.
(c) Payments; Reimbursement Obligations. (i) Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter
of Credit, the Issuing Bank shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Revolving
Lender as to the amount to be paid as a result of such demand or drawing and the
payment date. The Borrower shall be irrevocably and unconditionally obligated
forthwith to reimburse the Issuing Bank for any amounts paid by the Issuing Bank
upon any drawing under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind.
(ii) All such amounts paid by the Issuing Bank and remaining
unpaid by the Borrower (a "Reimbursement Obligation") shall, if and to the
extent that the amount of such Reimbursement Obligation would be permitted
as a Borrowing pursuant to Section 3.02, and unless the Borrower otherwise
instructs the Administrative Agent by not less than one Domestic Business
Day's prior notice, convert automatically to Revolving Base Rate Loans on
the date such Reimbursement Obligation arises. The Administrative Agent
shall, on behalf of the Borrower (which hereby irrevocably directs the
Administrative Agent so to act on its behalf), give notice no later than
11:30 A.M. (New York City time) on such date requesting each Revolving
Lender to make, and each Revolving Lender hereby agrees to make, a
Revolving Base Rate Loan, in an amount equal to such Revolving Lender's
Revolving Credit Percentage of the Reimbursement Obligation with respect to
which such notice relates. Each Revolving Lender shall make such Loan
available to the Administrative Agent at its address specified in or
pursuant to Section 9.01 in immediately available funds, not later than
1:00 P.M. (New York City time), on the date specified in such notice. The
Administrative Agent shall pay the proceeds of such Revolving Loans to the
Issuing Bank, which shall immediately apply such proceeds to repay the
Reimbursement Obligation. All amounts not so repaid shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
rate applicable to Revolving Base Rate Loans for such day.
47
(iii) To the extent the Reimbursement Obligation is not refunded
by a Revolving Lender pursuant to clause (ii) above, such Revolving Lender
will pay to the Administrative Agent, for the account of the Issuing Bank,
immediately upon the Issuing Bank's demand at any time during the period
commencing after such Reimbursement Obligation arises until reimbursement
therefor in full by the Borrower, an amount equal to such Revolving
Lender's ratable share of such Reimbursement Obligation (in proportion to
its participation therein), together with interest on such amount for each
day from the date of the Issuing Bank's demand for such payment (or, if
such demand is made after 1:00 P.M. (New York City time) on such date, from
the next succeeding Domestic Business Day) to the date of payment by such
Lender of such amount at a rate of interest per annum equal to the Federal
Funds Rate for the first three Domestic Business Days after the date of
such demand and thereafter at a rate per annum equal to the Base Rate for
each additional day. The Issuing Bank will pay to each Revolving Lender
ratably all amounts received from the Borrower for application in payment
of its Reimbursement Obligations in respect of any Letter of Credit, but
only to the extent such Revolving Lender has made payment to the Issuing
Bank in respect of such Letter of Credit pursuant hereto; provided that in
the event such payment received by the Issuing Bank is required to be
returned, such Revolving Lender will return to the Issuing Bank any portion
thereof previously distributed to it by the Issuing Bank.
(d) Obligations Absolute. The obligations of the Borrower and each
Revolving Lender under subsection (c) above shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement, under all circumstances whatsoever, including without limitation
the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of this Agreement or any Letter of Credit or
any document related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or any
acts or omission of, a beneficiary of a Letter of Credit (or any Person for
whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other rights
that the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in
48
connection with this Agreement or the Letter of Credit or any document
related hereto or thereto or any unrelated transaction;
(v) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever; or
(vi) any other act or omission to act or delay of any kind by any
Lender (including the Issuing Bank), the Administrative Agent or any other
Person or any other event or circumstance whatsoever that might, but for
the provisions of this subsection (vi), constitute a legal or equitable
discharge of or defense to the Borrower's or the Lender's obligations
hereunder.
(e) Indemnification; Expenses. (i) Borrower hereby indemnifies and holds
harmless each Revolving Lender (including each Issuing Bank) and the
Administrative Agent from and against any and all claims, damages, losses,
liabilities, costs or expenses which it may reasonably incur in connection with
a Letter of Credit issued pursuant to this Section 2.16.
(ii) None of the Revolving Lenders (including an Issuing Bank)
nor the Administrative Agent nor any of their officers or directors or
employees or agents shall be liable or responsible, by reason of or in
connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit, including without limitation any
of the circumstances enumerated in subsection (d) above; provided that the
Borrower shall not be required to indemnify any Lender, or the
Administrative Agent, for any claims, damages, losses, liabilities, costs
or expenses, to the extent found by a court of competent jurisdiction to
have been caused by the gross negligence or willful misconduct of such
Person; and provided further that, notwithstanding Section 2.16(d), the
Borrower and each Lender shall have a claim for direct (but not
consequential) damage suffered by it, to the extent found by a court of
competent jurisdiction to have been caused by (x) the willful misconduct or
gross negligence of the Issuing Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such Letter
of Credit or (y) the Issuing Bank's failure to pay under any Letter of
Credit after the presentation to it of a request strictly complying with
the terms and conditions of the Letter of Credit.
(iii) Nothing in this subsection (e) is intended to limit the
obligations of the Borrower under any other provision of this Agreement. To
the extent the Borrower does not indemnify an Issuing Bank as required by
this subsection, the Revolving Lenders agree to do so ratably in accordance
with their Revolving Commitments.
49
Section 2.17. Swing Loans. (a) Swing Loan Commitment. During the Swing
Credit Period, so long as no Stop Issuance Notice is in effect, the Swing Loan
Lender agrees, on the terms and conditions set forth in this Agreement, to make
Swing Loans to the Borrower pursuant to this subsection from time to time in
amounts such that at any time (i) the aggregate principal amount of Swing Loans
outstanding at such time does not exceed the Swing Loan Commitment and (ii) the
aggregate amount of Revolving Outstandings at such time does not exceed the
aggregate amount of the Revolving Commitments at such time. Each Borrowing under
this Section shall be in a principal amount of $1,000,000 or any larger multiple
of $500,000 (except that any such Borrowing may be in the amount of the Swing
Loan Commitment available in accordance with the immediately preceding
sentence). Within the foregoing limits, the Borrower may borrow under this
subsection, prepay Swing Loans and reborrow at any time during the Swing Credit
Period under this subsection.
(b) Swing Loan Borrowing Procedure. The Borrower shall give the Swing Loan
Lender notice (a "Notice of Swing Loan Borrowing"), not later than 12:00 Noon
(New York City time) on the date of each Swing Loan Borrowing, specifying the
amount and the date of such Borrowing, which shall be a Euro-Dollar Business
Day. Not later than 2:00 P.M. (New York City time) on the date of each Swing
Loan Borrowing, the Swing Loan Lender shall, unless it determines that any
applicable condition specified in Article 3 has not been satisfied, make
available the amount of such Swing Loan Borrowing, in Federal or other funds
immediately available in New York City, to the Borrower at the Swing Loan
Lender's address specified in or pursuant to Section 9.01.
(c) Interest. Each Swing Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for
Revolving Euro-Dollar Loans for such day plus the New York Interbank Offered
Rate applicable to such Interest Period. Interest for each Interest Period shall
be payable on the last day thereof. Any overdue principal of or interest on any
Swing Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of the Applicable Margin for Revolving Base Rate
Loans for such day plus the Base Rate for such day.
The "New York Interbank Offered Rate" applicable to any Interest Period
means the rate per annum at which deposits in dollars are offered to the Swing
Loan Lender in the New York interbank market at approximately 12:00 Noon (New
York City time) on the first day of such Interest Period in an amount
approximately equal to the principal amount of the Swing Loan to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period.
(d) Optional Prepayment. The Borrower may prepay the Swing Loans in whole
at any time, or from time to time in part in a principal amount of at least
50
$1,000,000, by giving notice of such prepayment to the Swing Loan Lender not
later than 1:00 P.M. (New York City time) on the date of prepayment and paying
the principal amount to be prepaid, together with accrued interest thereon to
the date of prepayment, to the Swing Loan Lender.
(e) Mandatory Prepayment. On the date of each Revolving Borrowing pursuant
to Section 2.01, the Administrative Agent shall apply the proceeds thereof to
prepay all Swing Loans then outstanding, together with interest accrued thereon
to the date of prepayment.
(f) Payments. All payments to the Swing Loan Lender under this Section
2.17 shall be made to it at its address specified in or pursuant to Section
9.01, in Federal or other funds immediately available in New York City, not
later than 2:00 P.M. (New York City time) on the date of payment.
(g) Refunding Unpaid Swing Loans. If (x) the Swing Loans are not paid in
full on their Maturity Date, (y) the Swing Loans become immediately due and
payable pursuant to Article 6, or (z) the Swing Loan Lender (in its discretion)
elects to exercise its rights under this subsection (g), the Administrative
Agent shall (if requested to do so by the Swing Loan Lender), by notice to the
Revolving Lenders (including the Swing Loan Lender, in its capacity as a
Revolving Lender), require each Revolving Lender to pay to the Administrative
Agent for the account of the Swing Loan Lender an amount equal to such Revolving
Lender's Revolving Credit Percentage of the aggregate unpaid principal amount of
the Swing Loans then outstanding. Such notice shall specify the date on which
such payments are to be made, which shall be the first Domestic Business Day
after such notice is given. Not later than 12:00 Noon (New York City time) on
the date so specified, each Revolving Lender shall pay the amount so notified to
it to the Administrative Agent at its address specified in or pursuant to
Section 9.01, in Federal or other funds immediately available in New York City.
Promptly upon receipt thereof, the Administrative Agent shall remit such amounts
to the Swing Loan Lender. The amount so paid by each Revolving Lender shall
constitute a Revolving Base Rate Loan to the Borrower and shall be applied by
the Swing Loan Lender to repay the outstanding Swing Loans.
(h) Purchase of Participations in Swing Loans. If at the time Revolving
Loans would have otherwise been made pursuant to Section 2.17(g), one of the
events described in Section 6.01(h) or 6.01(i) with respect to the Borrower
shall have occurred and be continuing or the Revolving Commitments shall have
terminated, each Revolving Lender shall, on the date such Revolving Loans would
have been made pursuant to the notice referred to in Section 2.17(g) (the
"Refunding Date"), purchase an undivided participating interest in the relevant
Swing Loan in an amount equal to such Revolving Lender's Revolving Credit
Percentage of the principal amount of such Swing Loan. On the Refunding Date,
each Revolving Lender shall transfer to the Swing Loan Lender, in immediately
available funds, such amount.
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(i) Payments on Participated Swing Loans. Whenever, at any time after the
Swing Loan Lender has received from any Revolving Lender such Revolving Lender's
payment pursuant to Section 2.17(h), the Swing Loan Lender receives any payment
on account of the Swing Loan in which the Revolving Lenders have purchased
participations pursuant to Section 2.17(h), the Swing Loan Lender will promptly
distribute to each such Revolving Lender its ratable share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Revolving Lender's participating interest was
outstanding and funded); provided that in the event that such payment received
by the Swing Loan Lender is required to be returned, such Revolving Lender will
return to the Swing Loan Lender any portion thereof previously distributed to it
by the Swing Loan Lender.
(j) Obligations to Refund or Purchase Participations in Swing Loans
Absolute. Each Revolving Lender's obligation to transfer the amount of a
Revolving Loan to the Swing Loan Lender as provided in Section 2.17(g) or to
purchase a participating interest pursuant to Section 2.17(h) shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender, the Borrower or any other Person may have
against the Swing Loan Lender or any other Person, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination or reduction
of any Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person, (iv) any breach of this
Agreement by the Borrower, any other Lender or any other Person or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
Section 2.18. Stop Issuance Notice. If the Required Banks determine at any
time that the conditions set forth in Section 3.02 would not be satisfied in
respect of a Revolving Borrowing at such time, then the Required Banks may
request that the Administrative Agent issue a "Stop Issuance Notice", and the
Administrative Agent shall issue such notice to the Swing Loan Lender and to
each Issuing Bank. Such Stop Issuance Notice shall be withdrawn upon a
determination by the Required Banks that the circumstances giving rise thereto
no longer exist. No Swing Loan shall be made and no Letter of Credit shall be
issued while a Stop Issuance Notice is in effect. The Required Banks may request
issuance of a Stop Issuance Notice only if there is a reasonable basis therefor,
and shall consider reasonably and in good faith a request from the Borrower for
withdrawal of the same on the basis that the conditions in Section 3.02 are
satisfied; provided that the Administrative Agent, the Swing Loan Lender and the
Issuing Banks may and shall conclusively rely on any Stop Issuance Notice while
it remains in effect.
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ARTICLE 3
CONDITIONS
Section 3.01. Restatement Date. This Amended Agreement shall not become
effective until the date on which each of the following conditions has been
satisfied (or waived in accordance with Section 9.05):
(a) The Administrative Agent shall have received for the benefit
of each Lender a signed copy of the favorable written opinion, and
addressed to the Lenders, of (i) Xxxxx Xxxxx L.L.P., counsel for the
Borrower, substantially in the form set forth in Exhibit B, and (ii) Xxxxxx
X. X'Xxxxx, Esq., Deputy General Counsel of the Borrower, substantially in
the form set forth in Exhibit C, in each case reasonably satisfactory to
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Agents.
(b) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may reasonably
request on or before the date hereof relating to the organization,
existence and good standing of each Obligor, the authorization of the Loan
Documents and the transactions contemplated thereby and any other legal
matters relating to the foregoing, all in form and substance reasonably
satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received counterparts of
this Amended Agreement (or facsimile or other evidence satisfactory to the
Administrative Agent of the execution of a counterpart hereof) which, when
taken together, bear the signatures of (i) each party hereto that is not a
party to the Original Credit Agreement and (ii) each party to the Original
Credit Agreement whose execution and delivery hereof is required by the
terms of the Original Credit Agreement for the effectiveness of this
Amended Agreement.
(d) The Borrower shall have consummated an issuance of Series D
Senior Secured Notes pursuant to a Debt Incurrence for gross cash proceeds
of not less than $275,000,000.
(e) The Administrative Agent shall have received all fees due
and payable on or prior to the Restatement Date, including to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(f) The Borrower shall have prepaid not less than $200,000,000
aggregate principal amount of the Term Loans pursuant to Section 2.09 of
the Original Credit Agreement, together with accrued interest thereon and
applicable prepayment fees.
53
(g) The Borrower shall have prepaid all Revolving Loans and
Swingline Loans outstanding under the Original Credit Agreement, together
with accrued interest thereon and accrued fees thereunder.
Section 3.02. Effect of Amendment and Restatement. On the Restatement
Date, (i) the Original Credit Agreement shall be automatically amended and
restated in its entirety to read as set forth in this Amended Agreement, (ii)
the Commitment of each Lender party to this Amended Agreement shall be as set
forth in the Commitment Schedule and, (iii) the Commitment of each Revolving
Lender under the Original Credit Agreement which is listed in the Commitment
Schedule as having a Revolving Commitment of zero (a "Departing Lender") shall
terminate and (iv) each Departing Lender shall cease to be a party to this
Agreement; provided that the provisions of Sections 8.03, 8.04 and 9.03 of the
Original Credit Agreement shall continue to inure to the benefit of each
Departing Lender. On and after the Restatement Date, the rights and obligations
of the parties hereto shall be governed by this Amended Agreement; provided that
the rights and obligations of the parties hereto with respect to the period
prior to the Restatement Date shall continue to be governed by the provisions of
the Original Credit Agreement; and provided further that, subject to the
occurrence of the Restatement Date, Sections 5.11 and 5.12 of this Amended
Agreement shall be effective as of June 30, 2002. The Administrative Agent shall
promptly notify in writing the Borrower, each Lender and each Departing Lender
of the Restatement Date, and such notice shall be conclusive and binding on all
parties hereto.
Section 3.03. Borrowings and Issuances of Letters of Credit. The
obligation of any Lender to make a Loan on the occasion of any Borrowing, and
the obligation of an Issuing Bank to issue (or renew or extend the term of) any
Letter of Credit, is subject to the satisfaction of the following conditions:
(a) the fact that the Restatement Date shall have occurred on or
before July 31, 2002;
(b) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02, receipt by the Issuing Bank of a Notice of Issuance as
required by Section 2.16(b) or receipt by the Swing Loan Lender of a Notice
of Swing Loan Borrowing as required by Section 2.17(b), as the case may be;
(c) the fact that, immediately before and after such Borrowing
or issuance, no Default shall exist; and
(d) the fact that the representations and warranties of the
Obligors contained in the Loan Documents (except, in the case of any
Borrowing or issuance subsequent to the Restatement Date, the
representations and warranties contained in Section 4.09(b) and Section
54
4.11) shall be true in all material respects on and as of the date of such
Borrowing or issuance.
Each Borrowing and each issuance or extension of a Letter of Credit
hereunder shall be deemed to be a representation and warranty by the Borrower on
the date of such Borrowing or issuance as to the facts specified in the
foregoing clauses 3.03(c) and 3.03(d).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all governmental
licenses, consents, authorizations and approvals required to carry on its
business as now conducted, except where the failure to have such licenses,
consents, authorizations and approvals could not reasonably be expected to have
a Material Adverse Effect.
Section 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by each Obligor of the Loan Documents to
which it is a party are within its corporate or other company powers, as the
case may be, have been duly authorized by all necessary corporate or other
company action, as the case may be, require no action by or in respect of, or
filing with, any governmental body, agency or official (other than the filing of
appropriate UCC financing statements, mortgages or similar instruments pursuant
to the Collateral Documents) and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate of
incorporation, by-laws or other constitutive documents of such Obligor or of any
agreement or instrument governing Material Debt or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries (other than
Liens created under the Collateral Documents).
Section 4.03. Binding Effect; Liens Enforceable. (a) Each Loan Document
(other than the Notes) constitutes a legal, valid and binding agreement of each
Obligor party thereto, and each Note, when executed and delivered in accordance
with this Agreement, will constitute a legal, valid and binding obligation of
the Borrower, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity (which principles may include implied
duties of good faith and fair dealing).
55
(b) The Collateral Documents create valid security interests or mortgage
liens in the Collateral purported to be covered thereby, which security
interests or mortgage liens are and will remain perfected security interests or
mortgage liens prior to all other Liens other than Permitted Liens. Each of the
representations and warranties made by each Obligor in the Collateral Documents
to which it is a party is true and correct in all material respects.
Section 4.04. Financial Information. (a) The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 2001 and the
related consolidated statements of income and retained earnings and of cash
flows for the Fiscal Year then ended, reported on by PricewaterhouseCoopers LLP,
copies of which have been delivered to each of the Lenders, fairly present in
all material respects, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 2002 and the related consolidated
statements of income and retained earnings and of cash flows for the Fiscal
Quarter then ended, copies of which have been delivered to each of the Lenders,
fairly present in all material respects, in conformity with GAAP, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such Fiscal Quarter, subject to normal year-end adjustments.
(c) The audited balance sheet of Equistar as of December 31, 2001, and the
related statements of income, partners' capital and cash flows for the fiscal
year of Equistar then ended, reported on by PricewaterhouseCoopers LLP, copies
of which have been delivered to each of the Lenders, fairly present in all
material respects, in conformity with GAAP, the financial position of Equistar
as of such date and its results of operations and cash flows for such fiscal
year.
(d) The unaudited balance sheet of Equistar as of March 31, 2002, and the
related statements of income, partners' capital and cash flows for the fiscal
quarter of Equistar then ended, copies of which have been delivered to each of
the Lenders, fairly present in all material respects, in conformity with GAAP,
the financial position of Equistar as of such date and its results of operations
and cash flows for such fiscal quarter, subject to normal year-end adjustments.
(e) The audited balance sheet of LCR as of December 31, 2001, and the
related statements of income, members' equity and cash flows for the fiscal year
of LCR then ended, reported on by PricewaterhouseCoopers, copies of which have
been delivered to each of the Lenders, fairly present in all material respects,
in conformity with GAAP, the financial position of LCR as of such date and its
results of operations and cash flows for such fiscal year.
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(f) Since December 31, 2001, there has been no material adverse change in
the business, financial condition, assets, results of operations or liabilities
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 4.05. Litigation. There is no action, suit or proceeding
(including any action, suit or proceeding arising out of any Environmental Law)
pending against, or to the Borrower's knowledge threatened against or affecting,
the Borrower or any Subsidiary (including, for purposes of this Section, the
Borrower Joint Ventures) before any court or arbitrator or any governmental
body, agency or official which could reasonably be expected to have a Material
Adverse Effect, or which in any manner draws into question the validity or
enforceability of any Loan Document.
Section 4.06. Compliance with Laws. (a) Each of the Borrower and its
Subsidiaries (including, for purposes of this Section, the Borrower Joint
Ventures) is in compliance in all material respects with all laws, regulations
and orders of any governmental authority applicable to it or its property
(including Environmental Laws), except for those failures to comply that could
not reasonably be expected to have a Material Adverse Effect.
(b) Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance (except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect) with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. Except as reflected in the PBGC Settlement Agreement, no member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat,
57
any costs or liabilities in connection with off-site disposal of wastes or
Hazardous Substances and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, the Borrower has reasonably concluded that such associated liabilities
and costs, including the costs of complying with Environmental Laws, could not
reasonably be expected to have a Material Adverse Effect.
Section 4.08. Taxes. The Borrower and its Subsidiaries (including, for
purposes of this Section, the Borrower Joint Ventures) have filed all United
States Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid or accrued all taxes shown to be due
such returns or on any assessment received by the Borrower or any Subsidiary and
required to be paid or accrued by it, except to the extent that any such taxes
are being contested in good faith by appropriate proceedings.
Section 4.09. Subsidiaries. (a) Each of the Borrower's Significant
Subsidiaries (including, for purposes of this Section, the Borrower Joint
Ventures) is duly organized, validly existing and, where applicable, in good
standing under the laws of its jurisdiction of organization, and has the
constitutive powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to have such licenses, consents, authorizations and approvals could not
reasonably be expected to have a Material Adverse Effect. The Borrower has no
Significant Subsidiaries which are not either Foreign Subsidiaries, JV
Subsidiaries or, subject to Section 5.19(d)(v), Subsidiary Guarantors.
(b) Schedule 4.09 sets forth a correct list of each Subsidiary (including
each Borrower Joint Venture) of the Borrower as of the Restatement Date,
separately identifying Significant Subsidiaries, Foreign Subsidiaries and JV
Subsidiaries.
Section 4.10. No Regulatory Restrictions on Borrowing. No Obligor is (i)
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, (ii) a "holding company" or a "subsidiary company" of a
holding company within the meaning of the Public Utility Holding Company Act of
1935, as amended, or (iii) otherwise subject to any regulatory scheme (other
than Regulation U) which restricts its ability to incur or guarantee debt.
Section 4.11. Full Disclosure. The Information Memorandum does not contain
on the date hereof any material misstatement of fact or omit to state any
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading; provided, however,
to the extent any such information was based on or constituted a forecast or
projection, the Borrower represents that it acted in good faith and utilized
information available to it at the time the Information Memorandum was prepared
58
and assumptions believed by it to be reasonable in light of the then current and
foreseeable business conditions of the Borrower and its Subsidiaries.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note or any Letter of Credit Liability
remains unpaid:
Section 5.01. Information. The Borrower will furnish to the Administrative
Agent, for each of the Lenders:
(a) as soon as available and in any event within 100 days after
the end of each Fiscal Year, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income and retained earnings and of cash
flows for such Fiscal Year, setting forth in each case in comparative form
the figures for the previous Fiscal Year, all reported on without material
qualification by PricewaterhouseCoopers LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Quarter, the related consolidated
statement of income for such Fiscal Quarter and the related consolidated
statements of income and cash flows for the portion of the Fiscal Year
ended at the end of such Fiscal Quarter, setting forth in the case of each
such statement of income and of cash flows in comparative form the figures
for the corresponding period in the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of presentation and
consistency with GAAP by the Borrower's chief financial officer or chief
accounting officer;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a certificate
of the Borrower's chief financial officer or chief accounting officer (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.09 to 5.13, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
59
(d) simultaneously with the delivery of each set of financial
statements referred to in clause 5.01(a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause 5.01(c) above;
(e) prior to the Mandatory Prepayment Release Date, on or prior
to 100 days after the end of each Fiscal Year ending during the Restricted
Period, a certificate of the Borrower's chief financial officer or chief
accounting officer setting forth in reasonable detail the calculation of
Excess Cash Flow and the Excess Cash Flow Prepayment Amount for such Fiscal
Year;
(f) within five Domestic Business Days after any Responsible
Officer obtains knowledge of any Default, if such Default is then
continuing, a certificate of the Borrower's chief financial officer or
chief accounting officer setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
(g) promptly after the mailing thereof to the Borrower's
stockholders generally, copies of all financial statements, reports and
proxy statements so mailed;
(h) promptly after the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on Forms
10-K, 10-Q and 8-K (or their equivalents) filed by the Borrower with the
SEC;
(i) promptly after any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
60
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the Borrower's chief financial officer or chief
accounting officer setting forth details as to such occurrence and the
action, if any, which the Borrower or applicable member of the ERISA Group
is required or proposes to take;
(j) as soon as reasonably practicable after any Responsible
Officer obtains knowledge of the commencement of an action, suit or
proceeding against the Borrower or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there
is a reasonable likelihood of an adverse decision which could have a
Material Adverse Effect or which in any manner questions the validity of
the Loan Documents, a certificate of a senior financial officer of the
Borrower setting forth the nature of such pending or threatened action,
suit or proceeding and such additional information with respect thereto as
may be reasonably requested by any Lender;
(k) promptly, upon receipt of any complaint, order, citation,
notice or other written communication from any Person with respect to, or
upon a Responsible Officer's obtaining knowledge of, (i) the existence of a
violation of any applicable Environmental Law or any Environmental
Liability in connection with any property now or previously owned, leased
or operated by the Borrower or any of its Subsidiaries, (ii) any Release on
such property or any part thereof in a quantity that is reportable under
any applicable Environmental Law, and (iii) any pending or threatened
proceeding for the termination, suspension or non-renewal of any permit
required under any applicable Environmental Law, in each case which could
reasonably be expected to have a Material Adverse Effect; and
(l) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
Information required to be delivered pursuant to Sections 5.01(a), 5.01(b),
5.01(g) and 5.01(h) above shall be deemed to have been delivered on the date on
which the Borrower provides notice to the Administrative Agent that such
information has been posted on the Borrower's website on the Internet at the
website address listed on the signature pages hereof, at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and
accessible by the Lenders without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 5.01(c) and (ii) the
61
Borrower shall deliver paper copies of the information referred to in Sections
5.01(a), 5.01(b), 5.01(g) or 5.01(h) to any Lender which requests such delivery.
Section 5.02. Payment of Obligations. The Borrower will pay and discharge,
and will cause each Subsidiary to pay and discharge, at or before delinquency,
all material taxes, assessments and governmental charges or levies imposed upon
it or its income or profits or in respect of its property, except where the same
are contested in good faith by appropriate proceedings.
Section 5.03. Maintenance of Property; Insurance. (a) The Borrower will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted, provided that no item of property need be so kept if the failure to
keep it so individually or in the aggregate with all other items not so kept by
the Borrower and its Subsidiaries could not reasonably be expected to have a
Material Adverse Effect.
(b) The Borrower will maintain, and will cause each of its Subsidiaries
to maintain (either in the Borrower's name or in such Subsidiary's own name)
insurance on all their respective properties consistent with the insurance
maintained on the date hereof or otherwise in at least such amounts (with no
materially greater risk retention) and against at least such risks as are
usually maintained, retained or insured against in the same general area by
companies of established repute owning similar properties in such area and
engaged in the same or a similar business, in either case, to the extent
available to the Borrower and its Subsidiaries on commercially reasonable terms.
The Borrower will furnish to the Lenders, upon request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried.
Section 5.04. Conduct of Business and Maintenance of Existence. The
Borrower and its Subsidiaries will continue to engage in business of the same
general type as now conducted by the Borrower and its Subsidiaries. Subject to
Section 5.07, the Borrower and its Subsidiaries will maintain their respective
corporate or other company existences and their respective rights, privileges
and franchises, except to the extent that the failure to maintain those rights,
privileges and franchises, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section 5.05. Compliance with Laws. The Borrower will comply, and will
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder), except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
62
Section 5.06. Inspection of Property, Books and Records. The Borrower will
keep, and will cause each Subsidiary to keep, proper books of record and
account; and will permit, and will cause each Subsidiary to permit,
representatives of any Lender at such Lender's expense to visit and inspect any
of their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers and independent public accountants,
all at such reasonable times and as often as may reasonably be requested.
Section 5.07. Mergers and Sales of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, consolidate or merge with or into any
other Person; provided that nothing in this Section shall prohibit (i) the
Borrower from merging with any Subsidiary (other than a JV Subsidiary) if the
Borrower is the corporation surviving such merger and, immediately after giving
effect to such merger, no Default shall exist or (ii) any Subsidiary from
merging with any Person if the entity surviving the merger is such Subsidiary or
becomes a Subsidiary as a result of that merger (and if either party to such
merger is a Subsidiary Guarantor, the entity surviving the merger is a
Subsidiary Guarantor) and immediately after giving effect to such merger, no
Default shall exist. The Borrower will not sell or otherwise dispose of all or
substantially all of its assets to any other Person or Persons. Prior to the
Mandatory Prepayment Release Date, the Borrower will not, and will not permit
any of its Subsidiaries to, make any Asset Sale unless (i) the consideration
therefor is not less than the fair market value of the related asset (as
determined in good faith by the chief financial officer of the Borrower) and
(ii) the consideration therefor consists solely of cash or cash equivalents and
notes and equity securities, such notes and equity securities having an
aggregate value not to exceed 15% of the aggregate amount of consideration
received by the Borrower and its Subsidiaries with respect to such Asset Sale;
provided that this provision shall not apply to a Major Asset Sale effected in
accordance with Section 5.22.
Section 5.08. Use of Proceeds. The proceeds of the Revolving Loans will be
used by the Borrower for general corporate purposes, including, without
limitation, working capital purposes. None of the proceeds of the Loans will be
used, in violation of any applicable law or regulation, including without
limitation of Regulation U. None of the proceeds of the Revolving Loans will be
used to repay Debt of LCR.
Section 5.09. Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the Closing Date securing Existing Debt in
an aggregate principal amount not exceeding $75,000,000;
63
(b) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring,
constructing, or improving such asset, provided that such Lien attaches to
such asset concurrently with or within 180 days after the acquisition or
completion of construction or improvement thereof;
(d) any Lien existing on any asset prior to the acquisition
thereof by merger or otherwise by the Borrower or a Subsidiary and not
created in contemplation of such acquisition;
(e) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Debt is not increased
(except by the amount of any costs associated with such refinancing,
extension, renewal or refunding) and is not secured by any additional
assets;
(f) Liens to secure a Debt owing to the Borrower or a Subsidiary
Guarantor;
(g) Liens created under the Collateral Documents;
(h) Ordinary Course Liens;
(i) [Reserved];
(j) Liens not otherwise permitted by this Section securing Debt
in an aggregate principal amount at no time exceeding (x) $50,000,000 less
(y) the aggregate outstanding principal amount of Debt of Subsidiaries
permitted solely by clause (g) of Section 5.10 at such time and less (z)
the aggregate outstanding principal amount of Debt of Persons other than
Subsidiaries permitted solely by Section 5.22(c);
(k) Liens on TDI Assets (i) securing Debt in an aggregate
principal amount not exceeding $200,000,000 that is incurred or assumed for
the purpose of improving the Rhodia TDI Plant, or (ii) arising pursuant to
a sublicense of the TDI License by the Borrower (or a Subsidiary that is
party to the TDI License) to the Borrower Joint Venture (or special purpose
Subsidiary of Rhodia or the Borrower) that owns the Rhodia TDI Plant; and
(l) Asset Sale Liens.
64
Section 5.10. Limitation on Subsidiary Debt. The Borrower will not permit
any of its Subsidiaries to incur or at any time be liable with respect to any
Debt except:
(a) Debt under the Loan Documents;
(b) the Existing Debt of such Subsidiary outstanding on the
Closing Date; and (except in the case of the Existing ARCO Chemical Debt
described in clause (i) of the definition of such term, which if refinanced
with other Debt may be refinanced only with Debt of the Borrower)
refinancings thereof provided that the principal amount thereof is not
increased beyond the amount outstanding thereunder on the date hereof and
the amount of any refinancing costs;
(c) Debt secured by Liens permitted by Section 5.09;
(d) intercompany Debt of an Obligor owing to an Obligor, or of
any Subsidiary which is not an Obligor owing to the Borrower or any other
Subsidiary, or of any Obligor owing to any Subsidiary which is not an
Obligor if such Debt is expressly subordinated to the prior payment in full
in cash of all amounts payable by such Obligor under the Loan Documents;
(e) Debt of a Subsidiary Guarantor consisting of a Guarantee of
a Debt Incurrence by the Borrower; provided that if such Debt Incurrence
involves the issuance of Senior Subordinated Notes, such Guarantee shall be
subordinated to the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee on terms no less favorable to the Lenders than the
subordination provisions governing the Senior Subordinated Notes;
(f) Debt of Foreign Subsidiaries and other Subsidiaries
conducting substantially all their operations outside the United States in
an aggregate outstanding principal amount at no time exceeding
$300,000,000;
(g) Debt of Subsidiaries not otherwise permitted by this Section
incurred after the Closing Date in an aggregate principal amount at any
time outstanding not to exceed (x) $50,000,000 less (y) the aggregate
outstanding principal amount of Debt secured by Liens permitted solely by
clause (j) of Section 5.09 at such time and less (z) the aggregate
outstanding principal amount of Debt of Persons other than Subsidiaries
permitted solely by Section 5.22(c) at such time; and
(h) Debt of LMC existing at the Restatement Date in an amount
not exceeding $1,500,000 and, to the extent the same may
65
constitute Debt, obligations of LMC in respect of the acquisition of MCN
Investment Corporation's interests in LMC; provided that the aggregate
principal amount of Debt permitted by this clause (h) shall at no time
exceed $25,000,000;
provided that, notwithstanding the foregoing, the Borrower will not permit any
JV Subsidiary to incur or at any time be liable with respect to any Debt, other
than obligations of such JV Subsidiary in respect of the Borrower Joint Venture
in which it holds an equity interest and arising by reason of such JV
Subsidiary's ownership of such equity interest.
Section 5.11. Adjusted Debt to Adjusted EBITDA. At any date during each
period set forth below, the ratio of (i) Adjusted Debt at such date to (ii)
Adjusted EBITDA for the period of four consecutive Fiscal Quarters most recently
ended on or prior to such date will not exceed the ratio set forth below
opposite such period:
PERIOD RATIO
------ -----
December 31, 2001 - June 29, 2002 9.00
June 30, 2002 - September 29, 2002 8.50
September 30, 2002 - December 30, 2002 9.50
December 31, 2002 - March 30, 2003 9.25
March 31, 2003 - June 29, 2003 9.00
June 30, 2003 - September 29, 2003 7.75
September 30, 2003 - December 30, 2003 6.75
December 31, 2003 - March 30, 2004 6.00
March 31, 2004 - June 29, 2004 5.25
June 30, 2004 - September 29, 2004 4.50
September 30, 2004 - December 30, 2004 4.00
December 31, 2004 - December 30, 2005 3.50
On and after December 31, 2005 3.00
Section 5.12. Fixed Charge Coverage Ratio. At the end of each Fiscal
Quarter ending during each period set forth below, the Fixed Charge Coverage
Ratio will not be less than the ratio set forth below opposite such period:
PERIOD RATIO
------ -----
April 1, 2002 - June 30, 2002 1.20
July 1, 2002 - March 31, 2003 1.10
April 1, 2003 - June 30, 2003 1.25
July 1, 2003 - September 30, 2003 1.40
October 1, 2003 - December 31, 2003 1.60
January 1, 2004 - March 31, 2004 1.80
April 1, 2004 - June 30, 2004 2.10
66
July 1, 2004 - September 30, 2004 2.30
At any time thereafter 2.60
Section 5.13. Minimum Consolidated Net Worth. Consolidated Net Worth will
not at the end of any Fiscal Quarter be less than an amount equal to the sum of
(i) $175,000,000 and (ii) an amount equal to 50% of Consolidated Net Income for
each Fiscal Quarter ending after March 31, 1998 but on or before the date of
determination, in each case, for which Consolidated Net Income is positive (but
with no deduction on account of negative Consolidated Net Income for any Fiscal
Quarter) plus (iii) 75% of the amount by which Consolidated Net Worth is
increased after March 31, 1998 as a result of the issuance and sale of capital
stock of the Borrower or the conversion or exchange of Debt of the Borrower into
capital stock of the Borrower minus (iv) the amount by which Consolidated Net
Worth shall have been reduced by reason of one-time charges and/or losses in
connection with (A) a TDI Sale and (B) the TDI Restructuring in an amount not
exceeding $80,000,000.
Section 5.14. Lease Payments. Neither the Borrower nor any Subsidiary will
incur or assume (whether pursuant to a Guarantee or otherwise) any liability for
rental payments under a lease with a lease term (as defined in Financial
Accounting Standards Board Statement No. 13, as in effect on the Closing Date)
of ten years or more if, immediately after giving effect thereto, the aggregate
amount of minimum lease payments for which the Borrower and its Subsidiaries are
liable will exceed $150,000,000 for any Fiscal Year under all such leases
(excluding capital leases); provided that, notwithstanding the foregoing, the
Borrower will not permit any JV Subsidiary to incur or at any time be liable
with respect to any such rental payments, other than obligations of such JV
Subsidiary in respect of the Borrower Joint Venture in which it holds an equity
interest and arising by virtue of such JV Subsidiary's ownership of such equity
interest.
Section 5.15. Restricted Payments; Optional Prepayments. (a) Neither the
Borrower nor any Subsidiary will declare or make any Restricted Payment;
provided that so long as at the time no Default shall exist, the Borrower may
(i) pay dividends on any preferred stock issued pursuant to Section 5.21 and
(ii) pay regular quarterly dividends on its common stock at a rate not exceeding
$0.225 per share per quarter (adjusted to reflect any stock split, stock
dividend, stock combination or similar transaction subsequent to the date
hereof).
(b) Prior to the Mandatory Prepayment Release Date, neither the Borrower
nor any Subsidiary will optionally prepay, redeem, purchase, acquire or make any
other principal payment in respect of any Debt, including any refinancing
thereof, other than (i) the Loans, (ii) Working Capital Facilities, (iii)
intercompany Debt, (iv) the Senior Notes from Net Cash Proceeds and Excess Cash
Flow Prepayment Amounts to the extent that those Net Cash Proceeds and Excess
Cash Flow Prepayment Amounts are not applied to prepayment of the Term Loans
pursuant to Section 2.04(c) by reason of Section 2.04(e) thereof and
67
(v) the Senior Notes to the extent of any amount that is offered in prepayment,
and is not applied to prepayment, of the Term Loans pursuant to Section 2.09(d).
Section 5.16. Investments; Business Acquisitions. Neither the Borrower nor
any Subsidiary will make or acquire any Investment in any Person or make any
Business Acquisition other than:
(a) Investments in the Borrower and its Subsidiaries;
(b) Investments in Borrower Joint Ventures;
(c) Temporary Cash Investments;
(d) employee Loans and advances for travel, entertainment,
relocation and other ordinary business expenses;
(e) Business Acquisitions; provided, that the aggregate cash
consideration for Business Acquisitions (other than Specified Business
Acquisitions) made by the Borrower and its Subsidiaries during the
Restricted Period shall not exceed $25,000,000;
(f) Investments consisting of notes and equity securities
received as consideration for Asset Sales, to the extent permitted by the
last sentence of Section 5.07; and
(g) other Investments made after the Restatement Date if,
immediately after such Investment is made or acquired, the aggregate net
book value of all Investments permitted by this clause does not exceed
$25,000,000.
Section 5.17. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, (i) pay any funds to
or for the account of any Affiliate, (ii) make any investment in any Affiliate
(whether by acquisition of stock or indebtedness, by loan, advance, transfer of
property, guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise), (iii) lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to any Affiliate, or (iv)
participate in, or effect, any transaction with any Affiliate, except on an
arms-length basis; provided that the foregoing provisions of this Section shall
not prohibit (i) any Restricted Payment permitted by Section 5.15 or (ii) any
Subsidiary from declaring or paying any lawful dividend or other payment ratably
in respect of all its capital stock of the relevant class. It is understood that
the agreements set forth in Schedule 5.20 do not contravene this Section.
Section 5.18. Limitation on Restrictions Affecting Subsidiaries. Neither
the Borrower nor any of its Subsidiaries will enter into, or suffer to exist,
any
68
agreement with any Person which prohibits or limits the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any Debt owed
to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or
any Subsidiary, (c) transfer any of its properties or assets to the Borrower or
any Subsidiary, (d) create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
(e) Guarantee any Debt of the Borrower or another Subsidiary or (f) suffer to
exist any Lien on capital stock or other equity interests issued by it; provided
that the following shall be permitted: (i) the Loan Documents; (ii) the
agreements governing the Existing Debt as in effect on the Restatement Date;
(iii) agreements between a JV Subsidiary and another partner or member of the
Borrower Joint Venture of which such JV Subsidiary is a partner or member so
long as the limitations imposed thereby are not materially more restrictive than
those contained in agreements set forth in Schedule 5.20; (iv) agreements with
respect to Debt secured by Liens permitted under Section 5.09(b) - (e)
containing restrictions on the ability to transfer or grant Liens on the assets
securing such Debt; (v) customary restrictions contained in stock purchase
agreements, asset sale agreements limiting the transfer of assets pending the
closing of the sale and customary non-assignment provisions in leases and other
contracts entered into in the ordinary course of business; (vi) the PBGC
Settlement Agreement; (vii) agreements entered into in connection with Debt
Incurrences by the Borrower containing limitations no more restrictive than
those contained in the instruments governing (x) the Debt described in clauses
(i) - (iv) of the definition of Existing Borrower Debt as in effect on the
Restatement Date or (y) the Senior Notes or the Senior Subordinated Notes as in
effect on the Restatement Date; (viii) restrictions existing on the Closing Date
on POSM and any Subsidiary whose only significant assets are partnership
interests in POSM; (ix) customary limitations on the activities of a Special
Purpose Subsidiary; and (x) agreements between the Borrower or a non-wholly
owned Subject Assets Transferee and the Acquiring Person (or an affiliate
thereof) of an interest in such non-wholly owned Subject Assets Transferee so
long as the limitations imposed thereby are not materially more restrictive than
those contained in the agreements set forth in Schedule 5.20; and provided
further that (x) clauses (c) and (d) above shall be inapplicable to any Foreign
Subsidiary or other Subsidiary conducting substantially all its operations
outside the United States, (y) clauses (c), (d) and (e) shall be inapplicable to
any Subject Assets Transferee and (z) from and after the Mandatory Prepayment
Release Date, clause (d) shall be inapplicable to the Borrower or any other
Subsidiary.
Section 5.19. Further Assurances. (a) The Borrower will, and will cause
each other Obligor to, at the Borrower's sole cost and expense, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment and transfers as the Administrative Agent
shall from time to time request, which may be necessary in the reasonable
judgment of the Administrative Agent from time to time to assure, perfect,
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convey, assign and transfer to the Administrative Agent the property and rights
conveyed or assigned pursuant to the Collateral Documents.
(b) All costs and expenses in connection with the grant of any security
interests under the Collateral Documents, including without limitation
reasonable legal fees and other reasonable costs and expenses in connection with
the granting, perfecting and maintenance of any security interests under the
Collateral Documents or the preparation, execution, delivery, recordation or
filing of documents and any other acts as the Administrative Agent may
reasonably request in connection with the grant of such security interests shall
be paid by the Borrower promptly upon demand.
(c) The Borrower will not, and will not permit any of its Subsidiaries
(other than a Foreign Subsidiary) to, enter into or become subject to any
agreement which would impair their ability to comply, or which would purport to
prohibit them from complying, with the provisions of this Section.
(d) The Borrower will:
(i) cause each Person which becomes a Significant Subsidiary
(excluding any Borrower Joint Venture, JV Subsidiary, Foreign Subsidiary,
Special Purpose Subsidiary, or Subject Assets Transferee) after the Closing
Date to become a party to the Subsidiary Guarantee as guarantor by
executing a supplement thereof in form and substance satisfactory to the
Administrative Agent;
(ii) maintain direct and indirect ownership interests in each of
Equistar and LCR not less than those held by it at the date hereof (subject
(x) in the case of LCR, to the right of CITGO Petroleum Corporation to
acquire additional interests so as to reduce the Borrower's indirect equity
interest to 50% and (y) in the case of each such Borrower Joint Venture, to
the admission of additional partners or members, as the case may be, so
long as the product of (I) the EBITDA of such Borrower Joint Venture,
calculated on a pro forma basis (without credit for anticipated expense
reductions or similar synergies) for its then most recent fiscal year for
which financial statements are available multiplied by (II) the percentage
representing the Borrower's direct and indirect ownership in such Borrower
Joint Venture (the "EBITDA Product"), calculated after giving effect to
such admission of any additional partner or member, is not less than the
EBITDA Product calculated before giving effect to such admission); provided
that the Borrower may sell all (but not less than all) of its direct or
indirect ownership interests in LCR in compliance with Section 5.07;
(iii) cause each Person which becomes a JV Subsidiary (other than
a Foreign Subsidiary) after the Closing Date, to enter into a JV
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Subsidiary Security Agreement and any other agreements, each in form and
substance satisfactory to the Administrative Agent, as may be necessary or
desirable in order to grant perfected first priority security interests
(subject to Permitted Liens) upon its rights to receive distributions from
any Borrower Joint Venture in which it holds an equity interest, to secure
the obligations under the Loan Documents;
(iv) pledge, or cause to be pledged, pursuant to the Borrower
Pledge Agreement, (x) in the case of any Significant Subsidiary described
in clause (i) above, any JV Subsidiary described in clause (iii) above, any
Special Purpose Subsidiary and any Subject Assets Transferee which is not a
Borrower Joint Venture or a Foreign Subsidiary, all the capital stock or
other equity interests of such Subsidiary owned directly by the Borrower
and (y) in the case of any Foreign Subsidiary which becomes a Significant
Subsidiary of the Borrower or a Subject Assets Transferee after the Closing
Date, to the extent permitted by applicable law, 65% of the voting stock or
other voting equity interests of such Foreign Subsidiary, and 100% of any
other capital stock or other equity interest, owned directly by the
Borrower; and
(v) take, and cause the appropriate Subsidiaries to take, such
actions as may be necessary or desirable to effect the steps required by
the foregoing paragraphs (i), (ii), (iii) and (iv) as soon as practicable
and in any event within 10 Domestic Business Days after the day on which
the Borrower is required to deliver financial statements pursuant to
Section 5.01(a) and 5.01(b) with respect to the Fiscal Quarter during which
the event requiring such steps occurs, including without limitation (x)
executing and delivering, or causing the appropriate Subsidiaries to
execute and deliver, to the Administrative Agent such number of copies as
the Administrative Agent may specify of such supplements and other
documents and (y) delivering, or causing such Subsidiaries to deliver, such
certificates, evidences of corporate action, legal opinions or other
documents as the Administrative Agent may reasonably request, all in form
and substance satisfactory to the Administrative Agent, relating to the
satisfaction of the Borrower's obligations under this Section.
Section 5.20. Restrictions on Borrower Joint Ventures. The Borrower shall
use its best efforts, including, without limitation, by voting (through the JV
Subsidiaries) its indirect interest in any Borrower Joint Venture at any
meetings of the respective governing bodies of such Borrower Joint Venture, to:
(a) limit annual expenditures for fixed assets by Equistar and LCR to an
aggregate amount of $400,000,000; provided that if the aggregate amount of such
expenditures for fixed assets actually made in any calendar year indicated above
shall be less than $400,000,000 then the amount of such shortfall may be added
to the amount of such expenditures for fixed assets permitted for the
immediately
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succeeding calendar year; and provided further that expenditures in any year may
exceed the foregoing annual limitation so long as the aggregate amount of all
such excesses for all years during the term of this Agreement does not exceed
$500,000,000; and provided further that the limitations set forth in this
Section 5.20(a) shall not apply to (and calculations hereunder shall exclude)
(x) expenditures for fixed assets in respect of projects for the sole account
of, and funded exclusively by, partners or members of such Borrower Joint
Ventures other than the Borrower or (y) expenditures of casualty insurance or
condemnation proceeds;
(b) maintain without material change (i) the cash distribution policy of
Equistar as stated in the Equistar Partnership Agreement as in effect on the
Closing Date and (ii) the cash distribution policy (as may be adjusted in
connection with the LCR Recapitalization) of LCR as stated in the LCR
Partnership Agreement as in effect on the Closing Date;
(c) limit the Debt that any of Equistar or LCR creates, incurs, assumes
or permits to exist (exclusive of Debt owing to the Borrower or a Subsidiary) to
an aggregate outstanding principal amount which, together with all other
outstanding Debt of such Borrower Joint Venture, does not exceed (i) in the case
of Equistar, $3,100,000,000 and (ii) in the case of LCR, $1,750,000,000 plus, in
each case, the amount of any Additional JV Debt;
(d) prevent each of Equistar and LCR from, directly or indirectly,
entering into, incurring or permitting to exist any agreement or other
arrangement with any Person that prohibits, restricts or imposes any condition
upon the ability of such Borrower Joint Venture to pay dividends or other
distributions to, or to make or repay loans or advances to, the Borrower or any
JV Subsidiary, which restrictions or conditions are materially more restrictive
than those contained in agreements to which such Borrower Joint Venture is a
party set forth in Schedule 5.20, as in effect on the Closing Date; and
(e) maintain the rights of (i) Lyondell Petrochemical G.P. Inc. to
appoint the chief executive officer of Equistar, as provided in the Equistar
Partnership Agreement and (ii) Lyondell Refining Company to appoint, together
with CITGO Gulf Coast Refining, Inc., the chief executive officer of LCR, as
provided in the LCR Partnership Agreement.
Section 5.21. Issuance of Equity Securities. On or after the date hereof,
the Borrower shall consummate one or more Equity Issuances for gross cash
proceeds of not less than $100,000,000 in the aggregate.
Section 5.22. Major Asset Sales. (a) In connection with the consummation
of a Major Asset Sale, so long as the conditions set forth in subsection (b)
below are satisfied:
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(i) the Borrower and its Subsidiaries may transfer all or any
portion of the Subject Assets (whether or not part of the Collateral) to a
Subject Assets Transferee or to an Acquiring Person;
(ii) the Borrower and its Subsidiaries may create Asset Sale
Liens on the Subject Assets;
(iii) any Liens arising under the Collateral Documents on the
portion of the Subject Assets transferred to a Subject Assets Transferee or
to an Acquiring Person will be released in accordance with the last
sentence of Section 9.05(b); and
(iv) any Liens arising under the Collateral Documents on the
Subject Assets not released in accordance with paragraph (iii) will be
subordinate to any Asset Sale Lien on such Subject Assets.
(b) The provisions of subsection (a) are subject to the following
conditions:
(i) at the time of such Major Asset Sale, the Restricted Period
shall have ended;
(ii) at the time of such Major Asset Sale and after giving effect
thereto (on a pro forma basis for purposes of Section 5.11), no Default
shall exist;
(iii) the sum of the gross cash proceeds received by the Borrower
in respect of such Major Asset Sale plus the value of the interest of the
Borrower in the Subject Assets Transferee (if any) after giving effect to
such Major Asset Sale is not less than the value (as determined by the
Board of Directors of the Borrower) of the portion of the Subject Assets
transferred by the Borrower in connection with such Major Asset Sale;
(iv) the Borrower directly or indirectly is the operator of the
Subject Assets in which it or a Subject Assets Transferee retains an
interest; and
(v) if any Subject Assets are transferred to a Subject Assets
Transferee, the Borrower complies with Section 5.19(d)(iii) and (iv) in
connection with such Major Asset Sale.
(c) No Subject Assets Transferee shall incur any Debt (other than (i) if
such Subject Assets Transferee is a Subsidiary, Debt permitted to be incurred
under Section 5.10(g) and (ii) if such Subject Assets Transferee is not a
Subsidiary, Debt in an aggregate principal amount not to exceed (x) $50,000,000
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less (y) the aggregate outstanding principal amount of Debt of Subsidiaries
permitted solely by clause (g) of Section 5.10 at such time less (z) the
aggregate outstanding principal amount of Debt secured by Liens permitted solely
by clause (j) of Section 5.09 at such time).
(d) For purposes of this Section 5.22, the following terms have the
following respective meanings:
"Acquiring Person" means a Person other than a Subject Assets
Transferee which acquires (i) all or a portion of the Subject Assets or
(ii) an interest in a Subject Assets Transferee in connection with a Major
Asset Sale.
"Asset Sale Lien" means a Lien on the Subject Assets (including as a
Lien for this purpose contractual rights with respect to the operation of
the Subject Assets) arising in connection with a Major Asset Sale in favor
of the Acquiring Person (or an affiliate thereof) which Lien does not
secure any Debt.
"Major Asset Sale" means an Asset Sale designated by the Borrower by
prior notice to the Administrative Agent as a Major Asset Sale, so long as
in connection therewith (i) the conditions specified in subsection (b) are
satisfied and (ii) the Borrower receives Net Cash Proceeds in an aggregate
amount not less than $1,000,000,000 (which shall be deemed Net Cash
Proceeds of such Major Asset Sale for purposes of Section 2.04(d)). For
this purpose (i) a transaction which produces substantially the same
economic result as a sale of a partial interest in an asset, as might be
achieved, for instance, through contractual arrangements allocating future
revenues and costs attributable to the asset, shall be deemed an Asset Sale
even though there may be no change in title to the asset or in the
ownership of the Person which has title to the asset and (ii) a subsequent
related transaction with the same Acquiring Person (or an Affiliate
thereof) contemplated by the terms of the initial Major Asset Sale with
such Person shall, for purposes of determining the applicability of and
compliance with this Section, be deemed a single cumulative transaction.
"Subject Assets" means, with respect to any Major Asset Sale, the
assets which are the subject of such Major Asset Sale.
"Subject Assets Transferee" means any Consolidated Subsidiary or
Borrower Joint Venture which becomes the owner of the Subject Assets in
connection with a Major Asset Sale.
(e) Nothing in this Section limits the ability of the Borrower and its
Subsidiaries to sell assets (including Collateral) in compliance with Section
5.07
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in transactions which do not constitute Major Asset Sales, and to obtain a
release of Collateral pursuant to the last sentence of Section 9.05(b) in
connection with any such sale.
Section 5.23. Capital Expenditures. For each Fiscal Year of the Borrower
ending during the Restricted Period, Capital Expenditures of the Borrower and
its Consolidated Subsidiaries will not exceed the applicable Limit Amount set
forth in the table below, plus, for any such Fiscal Year, the amount if any (in
no case to exceed $25,000,000) by which their Capital Expenditures for the
immediately preceding Fiscal Year are less than the amount permitted hereunder:
FISCAL YEAR LIMIT AMOUNT
----------- --------------
2002 - $ 120,000,000
2003 - $ 130,000,000
2004 - $ 75,000,000
2005 - $ 200,000,000
ARTICLE 6
DEFAULTS
Section 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail (i) to reimburse any drawing under
any Letter of Credit when required hereunder or (ii) to pay when due any
principal of any Loan;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a)
of this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five Domestic Business Days;
(c) the Borrower shall fail to observe or perform any covenant
contained in Section 5.01(f) or Section 5.07 through 5.18 or 5.20 through
5.23, inclusive;
(d) the Borrower shall fail to observe or perform any covenant
or agreement (other than those covered by clause 6.01(a), 6.01(b) or
6.01(c) or above) contained in this Agreement or any other Loan Document or
any amendment hereof or thereof for 30 days after the
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Administrative Agent gives notice thereof to the Borrower at the request of
any Lender;
(e) any representation, warranty, certification or statement
made by any Obligor in any Loan Document or any amendment thereof or in any
certificate delivered pursuant to any Loan Document shall prove to have
been incorrect in any material respect when made (or deemed made);
(f) the Borrower and its Subsidiaries shall fail to make one or
more payments aggregating more than $50,000,000 in respect of Debt or
Derivatives Obligations when due or within any applicable grace period;
(g) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof; provided that (i) an event or condition which does not
presently enable such holder or other Person to accelerate the maturity of
such Debt and which is subsequently waived or cured will then no longer
constitute an Event of Default hereunder; (ii) the existence or exercise of
rights of holders of Debt under the Medium Term Notes to require repurchase
thereof arising from the admission of subsidiaries of Occidental Chemical
Corp. to Equistar shall not give rise to a Default under this subsection;
and (iii) no Event of Default shall arise under this clause 6.01(g) in
respect of Debt which is Guaranteed by, but is not otherwise Debt of, the
Borrower or any Significant Subsidiary (including for this purpose the
Borrower Joint Ventures);
(h) (i) the Borrower or any Significant Subsidiary (including
for this purpose the Borrower Joint Ventures, but excluding LCR so long as
LCR is not at the time a "Significant Subsidiary" for purposes of the
instruments governing the Senior Notes or the Senior Subordinated Notes),
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or (ii) shall fail generally to pay its debts as they become
due, or (ii) shall take any corporate action to authorize any of the
foregoing;
(i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary (including for this
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purpose the Borrower Joint Ventures, but excluding LCR so long as LCR is
not at the time a "Significant Subsidiary" for purposes of the instruments
governing the Senior Notes or the Senior Subordinated Notes), seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Borrower or any Significant Subsidiary
(including for this purpose the Borrower Joint Ventures, but excluding LCR
so long as LCR is not at the time a "Significant Subsidiary" for purposes
of the instruments governing the Senior Notes or the Senior Subordinated
Notes), under the federal bankruptcy laws as now or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due an
amount or amounts which it shall have become liable to pay under Title IV
of ERISA; or notice of intent to terminate a Plan shall be filed under
Title IV of ERISA by any member of the ERISA Group, any plan administrator
or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to
cause a trustee to be appointed to administer, any Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Plan must be terminated; or there shall occur
a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer
Plans which could cause one or more members of the ERISA Group to incur a
current payment obligation, if any of the foregoing could reasonably be
expected to have a Material Adverse Effect (it being understood that the
fact of the Borrower becoming a party to the PBGC Settlement Agreement is
not, in itself, expected to have a Material Adverse Effect);
(k) judgments or orders for the payment of money exceeding
$50,000,000 in aggregate amount (exclusive of amounts covered by insurance
as to which the carrier has not contested coverage) shall be rendered
against the Borrower or any Subsidiary (including for this purpose the
Borrower Joint Ventures) and such judgments or orders shall continue
undischarged, unsatisfied and unstayed for a period of 30 days; or
enforcement remedies in respect of any such judgments or orders shall be
commenced;
(l) a Change of Control of the Borrower shall have occurred;
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(m) (i) any Lien created by any of the Collateral Documents
shall at any time fail to constitute a valid and (to the extent required by
the Collateral Documents) perfected Lien on all the Collateral purported to
be subject thereto, securing the obligations purported to be secured
thereby, with the priority required by the Loan Documents, or (ii) any
Obligor shall so assert in writing; provided that if a failure of the sort
described in clause 6.01(m) is susceptible of cure, no Event of Default
shall arise under this clause 6.01(m) with respect thereto until 30 days
after notice of such failure shall have been given to the Borrower by the
Administrative Agent;
(n) any Guarantee by any Subsidiary Guarantor pursuant to the
Subsidiary Guarantee shall cease for any reason (other than pursuant to a
transaction permitted hereunder) to be in full force and effect, or any
Obligor shall so assert in writing;
then, and in every such event, the Administrative Agent shall:
(i) if requested by Lenders having more than 50% in aggregate
amount of the Commitments, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate; and
(ii) if requested by Lenders holding more than 50% in aggregate
outstanding principal amount of the Loans, by notice to the Borrower
declare all, or a pro rata portion of all, principal of the Loans
(together in each case with accrued interest thereon) to be, and such
principal of the Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower;
provided that, if any Event of Default specified in clause 6.01(h)(i) or 6.01(i)
occurs with respect to the Borrower, then without any notice to the Borrower or
any other act by the Administrative Agent or the Lenders, the Commitments shall
thereupon terminate and the entire principal amount of the Loans (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(d) or 6.01(m) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
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Section 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of Lenders having more than 50% of the
Letter of Credit Liabilities, pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the aggregate
amount available for drawing under all Letters of Credit then outstanding at
such time; provided that, upon the occurrence of any Event of Default specified
in Section 6.01(h) or 6.01(i) with respect to the Borrower, the Borrower shall
pay such amount forthwith without any notice or demand or any other act by the
Administrative Agent or the Lenders.
ARTICLE 7
THE AGENTS
Section 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
Section 7.02. Agents and Affiliates. Each financial institution serving as
an Agent shall have the same rights and powers under the Loan Documents as any
other Lender and may exercise or refrain from exercising the same as though it
were not an Agent, and such financial institution and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower as if it were not an
Agent.
Section 7.03. Action by the Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except, as
expressly provided in Article 6.
Section 7.04. Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for any Obligor), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
Section 7.05. Liability of Agents. None of the Agents, their respective
affiliates, and the directors, officers, agents and employees of the Agents and
their respective affiliates shall be liable for any action taken or not taken by
it in
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connection herewith (i) with the consent or at the request of the Required
Lenders (or such different number of Lenders as any provision hereof expressly
requires for such consent or request) or (ii) in the absence of its own gross
negligence or willful misconduct. None of the Agents, their respective
affiliates, and the directors, officers, agents and employees of the Agents and
their respective affiliates shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing or issuance of a Letter
of Credit hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to such Agent;
(iv) the validity, effectiveness or genuineness of any Loan Document or any
other instrument or writing furnished in connection herewith or (v) the
existence, validity or sufficiency of any Collateral. No Agent shall incur any
liability by acting in reliance upon any notice, consent, certificate, statement
or other writing (which may be a bank wire, telex, facsimile or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
Without limiting the generality of the foregoing, the use of the term "agent" in
this Agreement with reference to any Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
Section 7.06. Indemnification. The Lenders shall, ratably in proportion to
their Commitments, indemnify each Agent, its affiliates and the directors,
officers, agents and employees of each such Agent and its affiliates (to the
extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance on the Arranger, any Co-Arranger, any 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 on any 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 any action under this Agreement.
Section 7.08. Successor Administrative Agents. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor for such resigning Administrative Agent. If no successor Agent shall
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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 resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $100,000,000. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any Administrative Agent's resignation
hereunder, the provisions of this Article shall inure to its benefit as to
actions taken or omitted to be taken by it while it was an Administrative Agent.
Section 7.09. Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon in writing by the Borrower and the Administrative Agent.
Section 7.10. Co-Syndication Agents, Co-Documentation Agents and
Arrangers. No Agent other than the Administrative Agent and no Arranger shall
have any responsibility, obligation or liability whatsoever under the Loan
Documents in such capacity.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or before the first day of any Interest Period for any Euro-Dollar Loans of
any Class:
(a) the Administrative Agent is advised by the Reference Lenders that
deposits in dollars in the applicable amounts are not being offered to the
Reference Lenders in the London interbank market for such Interest Period, or
(b) Lenders having at least 50% in aggregate amount of the Commitments of
such Class (or, in the case of Term Lenders, holding at least 50% of the
aggregate outstanding principal amount of the affected Class of Term Loans)
advise the Administrative Agent that the London Interbank Offered Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Lenders of funding their Euro-Dollar Loans for such Interest
Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
(i)
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the obligations of the Lenders to make Euro-Dollar Loans or to continue or
convert outstanding Loans as or into Euro-Dollar Loans, as the case may be,
shall be suspended and (ii) each outstanding Euro-Dollar Loan of the affected
Class shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the
Administrative Agent at least one Domestic Business Day before the date of any
affected Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
Section 8.02. Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency (including without
limitation the National Association of Insurance Commissioners (the "NAIC"))
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Euro-Dollar Lending Office) with any request or directive made or
issued after the date hereof (whether or not having the force of law) of any
such authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Lender shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower, whereupon until such Lender notifies the Borrower and
the Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans or continue outstanding Loans
as Euro-Dollar Loans, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding shall be converted to a Base Rate Loan either
(i) on the last day of the then current Interest Period applicable to such
Euro-Dollar Loan if such Lender may lawfully continue to maintain and fund such
Loan as a Euro-Dollar Loan to such day or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain and fund such Loan as a
Euro-Dollar Loan to such day. Interest and principal on any such Base Rate Loan
shall be payable on the same dates as, and on a pro rata basis with, the
interest and principal payable on the related Euro-Dollar Loans of the other
Lenders.
Section 8.03. Increased Cost and Reduced Return. (a) If after the date
hereof, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
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agency (including without limitation the NAIC) charged with the interpretation
or administration thereof, or compliance by any Lender (or its Applicable
Lending Office) with any request or directive made or issued after the date
hereof (whether or not having the force of law) of any such authority, central
bank or comparable agency, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding any such requirement with
respect to which such Lender is entitled to compensation during the relevant
Interest Period under Section 2.15), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Applicable Lending Office) or shall
impose on any Lender (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Fixed Rate Loans, its Notes
or its obligation to make Fixed Rate Loans or its obligations hereunder in
respect of Letters of Credit and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or of issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Lender to be material, then, within
15 days after demand by such Lender (with a copy to the Administrative Agent),
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency (including without limitation the NAIC), which adoption, change, request
or directive was effected after the date hereof, has or would have the effect of
reducing the rate of return on capital of such Lender (or its Parent) as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or its Parent) for such
reduction.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this
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Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
it. A certificate of any Lender claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
Section 8.04. Taxes. (a) For the purposes of this Section, the following
terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (the "Excluded Taxes") (i) in the case of each Lender Party,
taxes imposed on its net income, and franchise, capital or similar taxes
(including branch profits taxes) imposed on it, by a jurisdiction under the laws
of which (or of a political subdivision of which) it is organized or in which
its principal executive office is located or in which its Applicable Lending
Office is located and (ii) in the case of each Lender, any United States
withholding tax imposed on such payment, but not excluding any portion of such
tax that exceeds the United States withholding tax which would have been imposed
on such a payment to such Lender under the laws and treaties in effect when such
Lender first becomes a party to this Agreement if that Lender is in compliance
with its obligations under Section 8.04(b).
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution, delivery, registration or enforcement of, or otherwise with respect
to, any Loan Document other than Taxes and Excluded Taxes.
(b) All payments by the Borrower to or for the account of any Lender Party
hereunder or under any Note shall be made without deduction for any Taxes or
Other Taxes; provided that, if the Borrower shall be required by law to deduct
any Taxes or Other Taxes from any such payment, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) such Lender
Party receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
promptly furnish to the Administrative Agent, at its address specified in or
pursuant to Section 9.01, the original or a certified copy of a receipt
evidencing payment thereof.
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(c) The Borrower agrees to indemnify each Lender Party for the full amount
of Taxes and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed or asserted (whether or not correctly) by any jurisdiction on
amounts payable under this Section) paid by such Lender Party and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days after such Lender
Party makes demand therefor.
(d) Each Lender Party organized under the laws of a jurisdiction outside
the United States, (i) before it signs and delivers this Agreement in the case
of each Lender Party listed on the signature pages hereof and before it becomes
a Lender Party in the case of each other Lender Party, (ii) before it changes
the country where its Applicable Lending Office is located, (iii) from time to
time thereafter if requested in writing by the Borrower (but only so long as
such Lender Party remains lawfully able to do so), and (iv) at the time or times
prescribed by applicable law, shall provide each of the Borrower and the
Administrative Agent with (x) Internal Revenue Service form W-8 ECI or W-8 BEN,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender Party is entitled to benefits under an
income tax treaty to which the United States is a party which exempts such
Lender Party from United States withholding tax or reduces the rate of
withholding tax on payments of interest for the account of such Lender Party or
certifying that the income receivable by it pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States or (y) solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest", a Form W-8, or any successor form
prescribed by the Internal Revenue Service, and a certificate representing that
such Lender is not a bank for purposes of Section 881(c) of the Internal Revenue
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code).
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower or the Administrative Agent with the appropriate form
referred to in Section 8.04(d) (unless such failure is due to a change in
treaty, law or regulation occurring after the date on which such form originally
was required to be provided), such Lender Party shall not be entitled to
indemnification under Section 8.04(b) or 8.04(c) with respect to Taxes imposed
by the United States; provided that if a Lender Party, that is otherwise exempt
from or subject to a reduced rate of withholding tax, becomes subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.
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(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section as a result of a change in law or
treaty occurring after such Lender first became a party to this Agreement, then
such Lender will, at the Borrower's request, change the jurisdiction of its
Applicable Lending Office if, in the judgment of such Lender, such change (i)
will eliminate or reduce any such additional payment which may thereafter accrue
and (ii) is not otherwise disadvantageous to such Lender.
Section 8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Euro-Dollar Loans has been suspended pursuant to
Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03 or
8.04 with respect to its Euro-Dollar Loans, and in any such case the Borrower
shall, by at least five Euro-Dollar Business Days' prior notice to such Lender
through the Administrative Agent, have elected that the provisions of this
Section shall apply to such Lender, then, unless and until such Lender notifies
the Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist, all Loans which would otherwise be made by such
Lender as (or continued as or converted to) Euro-Dollar Loans shall instead be
Base Rate Loans on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Lenders. If
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the first
day of the next succeeding Interest Period applicable to the related Euro-Dollar
Loans of the other Lenders.
Section 8.06. Substitution of Bank. If (i) the obligation of any Lender to
make or to convert or continue outstanding Loans as or into Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Lender has demanded
compensation under Section 8.03 or 8.04, the Borrower shall have the right, with
the assistance of the Administrative Agent, to designate a substitute bank or
banks (which may be one or more of the Lenders) mutually satisfactory to the
Borrower and the Administrative Agent (and, in the case of a Revolving Lender,
the Issuing Banks and the Swing Loan Lender) to purchase for cash, pursuant to
an Assignment and Assumption Agreement in substantially the form of Exhibit D
hereto, the outstanding Loans and Letter of Credit Liabilities of such Lender
and assume the Commitment(s) of such Lender, without recourse to or warranty by,
or expense to, such Lender, for a purchase price equal to the principal amount
of all of such Lender's outstanding Loans and Reimbursement Obligations plus any
accrued but unpaid interest thereon and the accrued but unpaid fees for the
account of such Lender hereunder plus such amount, if any, as would be payable
pursuant to Section 2.11 if the outstanding Loans of such Lender were prepaid in
their entirety on the date of consummation of such assignment.
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ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices. (a) All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given to such party: (i) in the case of the Borrower or
any Agent, at its address or facsimile number set forth on the signature pages
hereof, (ii) in the case of any Lender, at its address or facsimile number set
forth in its Administrative Questionnaire or (iii) in the case of any party, at
such other address or facsimile number as such party may hereafter specify for
the purpose by notice to the Administrative Agent and the Borrower. Each such
notice, request or other communication shall be effective if given by facsimile,
when transmitted to the facsimile number referred to in this Section and
confirmation of receipt is received, or if given by any other means, when
delivered at the address referred to in this Section; provided that notices to
the Administrative Agent under Article 2 or Article 8 shall not be effective
until received.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Notices by the Borrower pursuant to Article 2 shall be irrevocable;
provided that, if a notice of optional or mandatory prepayment or termination or
reduction of Commitments pursuant to Section 2.04, 2.08 or 2.09 is expressed to
be contingent upon the consummation of a Reduction Event or other transaction,
such notice may be revoked by the Borrower, or the effective date thereof may be
postponed by a period of up to 30 days, in the event such transaction is delayed
or cancelled; provided further that in any such event (i) the Borrower shall
give the applicable Lenders through the Administrative Agent not less than three
Euro-Dollar Business Days' notice of the ultimate effective date of any such
notice and (ii) any such revocation or postponement of the effective date of a
notice shall be subject to the rights of the Lenders under Section 2.11.
Section 9.02. No Waivers. No failure or delay by any Lender Party
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
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Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all out-of-pocket expenses of the Agents, including fees and disbursements of
special counsel for the Agents, in connection with the preparation of the Loan
Documents, any waiver or consent thereunder or any amendment thereof or any
Default thereunder and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by each Lender Party, including the fees and disbursements of
counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Lender Party, their respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any kind
(including without limitation reasonable expenses of investigation by engineers,
environmental consultants and similar technical personnel), including, without
limitation, the reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a
party thereto) brought or threatened relating to or arising out of any Loan
Document or any actual or proposed use of any Commitments or any proceeds of
Loans hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for (i) such Indemnitee's own gross negligence or willful
misconduct or (ii) liabilities, losses, damages, costs and expenses arising out
of a proceeding in which such Indemnitee and the Borrower are adverse parties
and in which the Borrower prevails on the merits, in each case as determined by
a court of competent jurisdiction.
Section 9.04. Set-Offs. (a) If (i) an Event of Default has occurred and is
continuing and Lenders holding more than 50% in aggregate unpaid principal
amount of the Loans have requested the Administrative Agent to declare the Loans
to be immediately due and payable pursuant to Section 6.01, or (ii) the Loans
have become immediately due and payable without notice as provided in Section
6.01, then each Lender is hereby authorized by the Borrower at any time and from
time to time, to the extent permitted by applicable law, without notice to the
Borrower (any such notice being expressly waived by the Borrower), to set off
and apply 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 account of the Borrower against any obligations of the Borrower to
such Lender now or hereafter existing under this Agreement, regardless of
whether any such deposit or other obligation is then due and payable or is in
the same currency or is booked or otherwise payable at the same office as the
obligation against which it is set off and regardless of whether such Lender
shall have made any demand for payment under this Agreement. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender; provided that any failure to give such notice shall not affect the
validity of such
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setoff and application. The rights of the Lenders under this subsection are in
addition to any other rights and remedies which the Lenders may have.
(b) Each Lender agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest then due with respect to the Loans
and Letter of Credit Liabilities held by it which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest then due with respect to the Loans and Letter of Credit Liabilities
held by such other Lender, the Lender receiving such proportionately greater
payment shall purchase such participations in the Loans held by the other
Lenders, and such other adjustments shall be made, as may be required so that
all such payments of principal and interest with respect to the Loans and Letter
of Credit Liabilities held by the Lenders shall be shared by the Lenders pro
rata; provided that nothing in this Section shall impair the right of any Lender
to exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness in respect of the Loans; and provided further that
this Section shall not require sharing by the Swing Loan Lender of amounts
received in respect of Swing Loans pursuant to Section 2.17.
Section 9.05. Amendments and Waivers. (a) Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Lenders (and, if
the rights or duties of any Agent, any Issuing Bank or the Swing Loan Lender (in
such capacities) are affected thereby, by it); provided that no such amendment
or waiver shall:
(i) unless signed by all the Term Lenders, (A) reduce the
principal of or rate of interest on any Term Loan or (B) postpone the date
fixed for any payment of principal of or interest on any Term Loan,
(ii) unless signed by all the Revolving Lenders, (A) increase or
decrease the Revolving Commitment of any Revolving Lender (except for a
ratable decrease in the Revolving Commitments of all the Revolving
Lenders), (B) reduce the principal of or rate of interest on any Revolving
Loan or the amount to be reimbursed in respect of any Letter of Credit or
any interest thereon or any fees with respect thereto, or (C) postpone the
date fixed for any payment of any principal of or interest on any Revolving
Loan or for reimbursement in respect of any Letter of Credit or any
interest thereon or fees with respect thereto or any fees payable with
respect to the Revolving Commitments or for the termination of any
Revolving Commitment, or (except as expressly provided in Section 2.16) the
expiry date of any Letter of Credit,
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(iii) unless signed by all the Lenders, (A) change the percentage
of the Commitments of any Class or of the aggregate unpaid principal amount
of the Loans of any Class, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action under this
Section or any other provision of this Agreement, (B) release any
Subsidiary Guarantor from the Subsidiary Guarantee or permit termination of
the Subsidiary Guarantee or (C) effect or permit the release of all or
substantially all of the Collateral,
(iv) unless signed by Revolving Lenders holding, in the
aggregate, Revolving Credit Percentages of greater than 50%, waive any
condition to any Borrowing of Revolving Loan or issuance of Letter of
Credit; or
(v) unless signed by a Designated Lender or its Designating
Lender, subject such Designated Lender to any additional obligation or
affect its rights hereunder (unless the rights of all the Lenders of the
applicable Class hereunder are similarly affected).
(b) Any provision of the Collateral Documents or the Subsidiary Guarantee
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by each Obligor party thereto and the Administrative Agent with
the consent of the Required Lenders; provided that no such amendment or waiver
shall, unless signed by all the Lenders, effect or permit a release of all or
substantially all of the Collateral, release any Subsidiary Guarantor from the
Subsidiary Guarantee or permit termination of the Subsidiary Guarantee.
Notwithstanding the foregoing, including Section 9.05(a)(iii), Subsidiary
Guarantees shall be terminated and Collateral (but not the proceeds thereof)
shall be released from the Lien of the Collateral Documents from time to time as
necessary to effect any sale of assets, including the sale of a Subsidiary
Guarantor, permitted by the Loan Documents, and the Administrative Agent shall
execute and deliver all release documents reasonably requested to evidence such
release.
(c) Each Lender party hereto consents to the execution and delivery by the
Administrative Agent of such amendments to the Collateral Documents as shall be
necessary or desirable in order to permit any Senior Notes to be secured by the
Collateral as contemplated by clause (iii) of the definition thereof.
Section 9.06. Successors; Participations and Assignments. (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, except that the
Borrower may not assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all the Lender Parties.
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(b) Any Lender may at any time grant to one or more banks, institutions or
other entities that regularly make, purchase or invest in bank loans (each a
"Participant") participating interests in its Commitments or any or all of its
Loans and Letter of Credit Liabilities. If a Lender grants any such
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clause (i) or (ii) of Section 9.05 without
the consent of the Participant. The Borrower agrees that, subject to Section
9.06(e), each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Section 2.15 and Article 8 with
respect to its participating interest. An assignment or other transfer which is
not permitted by Section 9.06(c) or 9.06(d)) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection.
(c) Any Lender may at any time assign to one or more banks, other
institutions or other entities that regularly make, purchase or invest in bank
loans (each an "Assignee") all, or a proportionate part of all, of its
Commitment of any Class or its Loans and Letter of Credit Liabilities of any
Class and such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement substantially in the form of Exhibit D
hereto signed by such Assignee and such transferor Lender, with (and subject to)
the subscribed consent of the Borrower (which shall not be unreasonably withheld
or unreasonably delayed) and the Administrative Agent (and, in the case of a
Revolving Commitment, the Issuing Banks and the Swing Loan Lender); provided
that (i) after giving effect to any proposed assignment, (A) the Credit Exposure
of the transferor Lender (or in the case of a transferor Lender that is a fund,
the aggregate Credit Exposure of such Lender and its Related Funds) shall be
equal to (x) $0 or at least $5,000,000 if the transferor is a Revolving Lender
and (y) $0 or at least $1,000,000 if the transferor is a Term Lender and (B) the
amount of the Credit Exposure of the transferor Lender subject to such
assignment shall be at least equal to (x) $5,000,000 if the Assignee is a
Revolving Lender or (y) $1,000,000, if the Assignee is a Term Lender, unless in
either case the proposed Assignee is an affiliate of the transferor Lender, a
Related Fund of any Lender or was a Lender immediately before such assignment,
(ii) if a proposed Assignee is an affiliate of a transferor Lender, a Related
Fund of any Lender or was a Lender immediately before such assignment, no such
consent of
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the Borrower or the Administrative Agent shall be required and (iii) if an Event
of Default shall have occurred and be continuing, no such consent of the
Borrower shall be required. When such instrument has been signed and delivered
by the parties thereto and recorded as provided in Section 2.14, and such
Assignee has paid to such transferor Lender the purchase price agreed between
them, such Assignee shall be a Lender party to this Agreement and shall have all
the rights and obligations of a Lender with a Commitment and/or Loans as set
forth in such instrument of assumption, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to the Assignee. In connection with any
such assignment (other than an assignment to which any Agent or any affiliate of
any Agent is a party), the transferor Lender shall pay to the Administrative
Agent an administrative fee for processing such assignment in the amount of
$3,500; provided that only one such fee shall be due in respect of a
simultaneous assignment to more than one Related Fund. If the Assignee is not
incorporated under the laws of the United States or a State thereof, it shall
deliver to the Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of taxes in accordance with Section
8.04(d).
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank, and any Lender that
is a fund that invests in bank loans may, with the consent of the Administrative
Agent, pledge all or any portion of its rights under this Agreement and its Note
to its trustee in support of its obligations to its trustee or its noteholders.
No such assignment or pledge shall release the transferor Lender from its
obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances.
Section 9.07. Designated Lenders. (a) Subject to the provisions of this
Section 9.07, any Lender may from time to time elect to designate an Eligible
Designee to provide all or a portion of the Loans to be made by such Lender
pursuant to this Agreement; provided that such designation shall not be
effective unless the Borrower and the Administrative Agent consent thereto. When
a Lender and its Eligible Designee shall have signed a designation agreement
substantially in the form of Exhibit E hereto and the Borrower and the
Administrative Agent shall have signed their respective consents thereto, such
Eligible Designee shall become a Designated Lender for purposes of this
92
Agreement. The Designating Lender shall thereafter have the right to permit such
Designated Lender to provide all or a portion of the loans to be made by such
Designating Lender pursuant to Section 2.01 and the making of such Loans or
portions thereof shall satisfy the obligation of the Designating Lender to the
same extent, and as if, such Loans or portion thereof were made by the
Designating Lender. As to any Loans or portion thereof made by it, each
Designated Lender shall have all the rights that a Lender making such Loans or
portion thereof would have had under this Agreement and otherwise; provided that
(x) its voting rights under this Agreement shall be exercised solely by its
Designating Lender and (y) its Designating Lender shall remain solely
responsible to the other parties hereto for the performance of its obligations
under this Agreement, including its obligations in respect of the Loans or
portion thereof made by it. No additional Note shall be required to evidence
Loans or portions thereof made by a Designated Lender; and the Designating
Lender shall be deemed to hold its Note as agent for its Designated Lender to
the extent of the Loans or portion thereof funded by such Designated Lender.
Each Designating Lender shall act as administrative agent for its Designated
Lender and give and receive notices and other communications on its behalf. Any
payments for the account of any Designated Lender shall be paid to its
Designating Lender as administrative agent for such Designated Lender and
neither the Borrower nor the Administrative Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any Designated
Lender may (i) with notice to, but without the prior written consent of, the
Borrower or the Administrative Agent, assign all or portions of its interest in
any Loans to its Designating Lender or to any financial institutions consented
to by the Borrower and the Administrative Agent providing liquidity and/or
credit facilities to or for the account of such Designated Lender to support the
funding of Loans or portions thereof made by such Designated Lender and (ii)
disclose on a confidential basis any non-public information relating to its
Loans or portions thereof to any rating agency, commercial paper dealer or
provider of any guarantee, surety, credit or liquidity enhancement to such
Designated Lender.
(b) Each party to this Agreement agrees that it will not institute
against, or join any other Person in instituting against, any Designated Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after all outstanding senior indebtedness of such
Designated Lender is paid in full. The Designating Lender for each Designated
Lender agrees to indemnify, save, and hold harmless each other party hereto for
any loss, cost, damage and expense arising out of its inability to institute any
such proceeding against such Designated Lender. This Section 9.07(b) shall
survive the termination of this Agreement.
Section 9.08. No Reliance on Margin Stock. Each of the Lenders represents
to each Agent and each of the other Lenders that it in good faith is not
93
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
Section 9.09. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York. To the extent permitted by applicable
law, the Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Borrower irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Section 9.10. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective on the date that the Administrative Agent
shall have received counterparts hereof signed by each of the parties hereto
(or, in the case of any party as to which an executed counterpart shall not have
been received, receipt by the Administrative Agent in the form satisfactory to
it of facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
Section 9.11. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.12. ERISA Matters. (a) Representations and Warranties. Each
Lender, solely with respect to itself, severally represents and warrants that
one or more of the following is true with respect to all of the funds used to
make or purchase any interest in any Loan or Letter of Credit Liability (or one
or more of the following is true with respect to each portion of the funds used
to make or purchase such interest in such Loan or Letter of Credit Liability if
such funds are from more than one source):
(i) no part of the funds to be used by it constitutes under the
Internal Revenue Code or ERISA the assets of any ERISA Plan; or
(ii) (A) the funds to be used by it constitute, under the
Internal Revenue Code or ERISA, the assets of an insurance company pooled
separate account, as such term is used in Prohibited Transaction Class
94
Exemption 90-1 issued by the U.S. Department of Labor, or a "collective
investment fund," as defined in Section IV of Prohibited Transaction Class
Exemption 91-38 issued by the U.S. Department of Labor, in which an ERISA
Plan has an interest, and (B) such Loan or Letter of Credit Liability or
interest therein is, and the subsequent holding of the Note or any
agreement related thereto shall at all times thereafter be, entitled to
full relief under Prohibited Transaction Class Exemption 90-1 or 91-38, as
applicable; or
(iii) (A) the funds to be used by it for any Loan or Letter of
Credit Liability or interest therein which constitutes, under the Internal
Revenue Code or ERISA, the assets of any ERISA Plan are invested in an
investment fund which is managed by a "Qualified Professional Asset
Manager" as such term is defined in Prohibited Transaction Class Exemption
84-14 issued by the U.S. Department of Labor, and (B) such Loan or Letter
of Credit Liability or interest therein is and the subsequent holding of
the Note or any agreement related thereto shall at all times thereafter be,
exempt under Prohibited Transaction Class Exemption 84-14 to the fullest
extent provided therein;
(iv) the assets to be used by it constitute the assets of an
investment company registered under the Investment Company Act of 1940; or
(v) the Lender is an "insurance company" and the funds to be
used by it constitute assets of an "insurance company general account" as
defined in Section V of Prohibited Transaction Class Exemption 95-60 issued
by the U.S. Department of Labor, and such Loan or Letter of Credit
Liability or interest therein is, and shall at all times thereafter satisfy
the requirements to be and shall be, exempt under Prohibited Transaction
Class Exemption 95-60 to the fullest extent provided therein.
(b) Representations of Transferees. Each Person that becomes an Assignee
or Participant hereunder shall be deemed to make, effective upon the acceptance
of any assignment of an interest hereunder or the entering into of any
participation agreement contemplated in Section 9.06(b), the representations and
warranties set forth in Section 9.12. Such deemed representation shall be
effective against, and binding on, such Assignee or Participant to the same
extent as if such Assignee or Participant had executed an original counterpart
of this Agreement.
(c) Additional ERISA Representations. Each Lender that now or hereafter
makes or maintains any Loan or Letter of Credit Liability with any assets of any
ERISA Plan (i) represents and warrants that it has evaluated for itself the
merits of making or maintaining such Loan or Letter of Credit Liability; has not
solicited and has not received from the Borrower or any of its Affiliates,
95
any evaluation or other investment advice on any basis in respect of the
advisability of making or maintaining such Loan or Letter of Credit Liability;
and is not relying and has not relied on the Borrower or any of its Affiliates
for any investment advice with respect to making or maintaining such Loan or
Letter of Credit Liability in any manner that would cause the Borrower or any of
its Affiliates to become a "party in interest" (within the meaning of ERISA) or
a "disqualified person" (within the meaning of the Internal Revenue Code) in
connection with making or maintaining such Loan or Letter of Credit Liability
and (ii)acknowledges and confirms that none of the Borrower or any of its
Affiliates is acting as a "fiduciary" (within the meaning of ERISA, the Internal
Revenue Code or any other applicable law or any rulings or regulations
thereunder) for such Lender in connection with making or maintaining such Loan
or Letter of Credit Liability.
Section 9.13. Confidentiality. Each Lender and Agent agrees to hold all
non-public information obtained pursuant to the requirements of this Agreement
in accordance with its customary procedure for handling confidential information
of this nature and in accordance with safe and sound commercial lending
practices; provided that nothing herein shall prevent any Lender or Agent from
disclosing such information (i) to any affiliate of such Lender or to any other
Lender or Agent, (ii) to any other Person if reasonably incidental to the
administration of the Loans and Letter of Credit Liabilities, (iii) to the
extent required by applicable laws or regulations or upon the order of any court
or administrative agency, (iv) upon the request or demand of any regulatory
agency or authority, (v) which had been publicly disclosed other than as a
result of a disclosure by any Agent or Lender prohibited by this Agreement, (vi)
in connection with any litigation to which any Agent, any Lender or its
subsidiaries or Parent may be a party, (vii) to the extent necessary in
connection with the exercise of any remedy hereunder, (viii) to such Lender's or
Agent's legal counsel and independent auditors and (ix) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed Participant or Assignee.
Section 9.14. Waiver. The Lenders hereby waive compliance with the
provisions of Section 2.04 of the Original Credit Agreement and this Agreement
in connection with the issuance of the Series D Senior Notes and the application
of the proceeds thereof.
96
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.
BORROWER:
LYONDELL CHEMICAL COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and
Treasurer
Address: 0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
REVOLVING LENDERS:
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CITIBANK, N.A.,
as Co-Syndication Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
SOCIETE GENERALE,
as Co-Documentation Agent and as a Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Director
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint
---------------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products
Services, US
By: /s/ Xxxx Xxxxxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Associate Director
Banking Products Services, US
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Xxxxx
---------------------------------------------
Name: M.D. Xxxxx
Title: Agent
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Xxxx Xxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx X'Xxxxx
---------------------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
DEPARTING LENDERS:
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
ARAB BANK PLC, as a Departing Lender
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
BANK LEUMI USA
By: /s/ Xxxxx Xxx Hong
---------------------------------------------
Name: Xxxxx Xxx Hong
Title: Vice President
BANK OF CANTON OF CALIFORNIA
By: /s/ Xxx Xxx
---------------------------------------------
Name: Xxx Xxx
Title: SVP
BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: VP & Manager
By: /s/ Xxx Fort
---------------------------------------------
Name: Xxx Fort
Title: Vice President
BANK POLSKA KASA OPIEKI SA
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director
Loan Transaction Management
BAYERISCHE HYPO-UND
VEREINSBANK AG, NY BRANCH
By: /s/ Xxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assoc. Director
BEDFORD CDO, LIMITED (Acct 1276)
By: Pacific Investment Management
Company LLC, as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
BNP PARIBAS, as a Departing Lender
By: /s/ Xxxxxx Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXX XXX COMMERCIAL BANK, LTD,
NEW YORK BRANCH
By: /s/ Ming-Xxxxx Xxx
---------------------------------------------
Name: Ming-Xxxxx Xxx
Title: VP & General Manager
XXXXX XXXX BANK, LTD.,
NEW YORK AGENCY
By: /s/ Xxxx-Xxxxx Xxxx
---------------------------------------------
Name: Xxxx-Xxxxx Xxxx
Title: SVP & General Manager
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Associate
XXXXX XXXXX CDO III, LTD,
as a Departing Lender
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
FIRST COMMERCIAL BANK,
NEW YORK AGENCY, AS A DEPARTING LENDER.
By: /s/ Tzu-Xxx Xxxx
---------------------------------------------
Name: Tzu-Xxx Xxxx
Title: Assistant General Manager
FLEET NATIONAL BANK,
as a Departing Lender
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Director
GUARANTY BANK
By: /s/ Xxx X. Xxxxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
GULF INTERNATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Gulf International Bank
as a Departing Lender
KBC BANK NV
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
NATIONAL BANK OF EGYPT
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: General Manager
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
OAK HILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management I, LLC as
Investment Manager
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
PB CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate
By: /s/ Xxxx Xxxxx
---------------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
ROYALTON COMPANY (Acct 280)
By: Pacific Investment Managing Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
SENIOR DEBT PORTFOLIO,
as a Departing Lender
By: Boston Management and Research, as
Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
SOUTHERN PACIFIC BANK
By: /s/ XxxXxxxx Xxx
---------------------------------------------
Name: XxxXxxxx Xxx
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Suresh Tata
---------------------------------------------
Name: Suresh Tata
Title: Senior Vice President
SUNAMERICA SENIOR FLOATING RATE FUND INC.
By: Xxxxxxxxx Capital Partners LLC, as its
subadvisor
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
SUNTRUST BANK
By: /s/ Xxxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
TAIPEIBANK NEW YORK AGENCY
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: Xxxxxx Xxxx
Title: V.P. & G.M.
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors Inc., as its Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Titl: Director
TORONTO DOMINION (TEXAS), INC.,
as a Departing Lender
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
UFJ BANK LIMITED
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH, as Departing Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director Credit
Department
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC,
as its Investment Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
TERM LOAN LENDERS:
AERIES FINANCE-II LTD.
By: INVESCO Senior Secured Management, Inc. as
Sub-Managing Agent
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AIMCO CDO SERIES 2000-A
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
AIMCO CLO SERIES 2001-A
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
AMARA-I FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc. as
Financial Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
APEX (TRIMARAN) CDO I, LTD.
By: Trimaran Advisors, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
ARES III CLO LTD.
By: ARES CLO Management LLC,
Investment Manager
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES IV CLO LTD.
By: Ares CLO Management IV, L.P., Investment
Manager
By: Ares CLO XX XX, LLC, its Managing Member
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P., its General
Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
AURUM CLO 2002-1 LTD.
By: Xxxxx Xxx & Farnham Incorporated as
Investment Manager
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President & Portfolio
Manager
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
BLACKROCK SENIOR LOAN TRUST
By: /s/ X.X. Xxxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxxx
Title: Director
CAPTIVA FINANCE LTD.
By: /s/ Xxxx Xxxx
---------------------------------------------
Name: Xxxx Xxxx
Title Director
CAPTIVA III FINANCE LTD. (Acct. 275), as advised
by Pacific Investment Management Company LLC
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CAPTIVA IV FINANCE LTD. (Acct. 1275), as advised
by Pacific Investment Management Company LLC
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
Title: Director
SUMMIT INVESTMENT PARTNERS
By: Carillon Holding Limited
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Analyst
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ Xxxxx Xxxx
---------------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
COSTANTINUS XXXXX XXXXX CDO V, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO II, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO IV, LTD.
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
ELC (CAYMAN) LTD.
ELC (CAYMAN) LTD. CDO SERIES 1999-1
By: Xxxxx X. Xxxxxx & Company Inc., in its
individual capacity and as Collateral
Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
ELF FUNDING TRUST III
By: New York Life Investment Management, LLC,
as attorney-in-fact
By: /s/ F. Xxxxx Xxxxx
---------------------------------------------
Name: F. Xxxxx Xxxxx
Title: Vice President
ELT LTD.
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
XXXXXXX & CO.
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
GREAT POINT CLO 1999-1 LTD.
By: Sankaty Advisors, LLC as Collateral
Manager for, as Term Lender
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
HARBOUR TOWN FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
HARBOUR VIEW CDO II LTD., FUND
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
IDS LIFE INSURANCE COMPANY
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
ING PRIME RATE TRUST
By: ING Investments, LLC, as its investment
manager
By: /s/ Xxxxxxx XxXxxxx, CFA
---------------------------------------------
Name: Xxxxxxx XxXxxxx, CFA
Title: Vice President
INNER HARBOR CBO 2001-1 LTD.
By: X. Xxxx Price Associates, Inc.,
as Collateral Manager
By: /s/ Xxxxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
KZH CRESCENT-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CRESCENT-3 LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CRESCENT LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH SOLEIL LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH SOLEIL-2 LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
---------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
LANDMARK CDO LIMITED
By: Aladdin Asset Management LLC
as Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Xxxxx Xxx & Farnham Incorporated as Advisor
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr Vice President & Portfolio
Manager
LONGHORN CDO (CAYMAN) LTD.
By: Xxxxxxx Xxxxx Investment Managers, L.P. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
LONGHORN CDO II LTD.
By: Xxxxxxx Xxxxx Investment Managers, L.P. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
MAGNETITE ASSET INVESTORS, LLC
By: /s/ X.X. Xxxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxxx
Title: Director
MAGNETITE ASSET INVESTORS, III, LLC
By: /s/ X.X. Xxxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxxx
Title: Director
MAGNETITE IV CLO, LIMITED
By: /s/ X.X. Xxxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxxx
Title: Director
MAPLEWOOD (CAYMAN) LIMITED
By: Xxxxx X. Xxxxxx & Company Inc. under
delegated authority from Massachusetts
Mutual Life Insurance Company as
Investment Manager
By: /s/ Xxxx Xxx XxXxxxxx
---------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc., as
Investment Manager
By: /s/ Xxxx Xxx XxXxxxxx
---------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
BANK LOAN INCOME PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers, L.P. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC, as its investment
manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
---------------------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC, as its investment
manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
---------------------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
MOUNTAIN CAPITAL CLO II LTD.
By: /s/ Xxx Xxxxx
---------------------------------------------
Name: Xxx Xxxxx
Title: Director
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Investment Officer
OASIS COLLATERALIZED HIGH INCOME PORTFOLIO-1, LTD.
By: INVESCO Senior Secured Management, Inc., as
Subadvisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Credit Investors, LLC
as sub-investment manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD
By: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC
as collateral manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Portfolio Manager
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
XXXXXXXXXXX SENIOR FLOATING RATE FUND
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management,
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD.
By: ING Investments, LLC,
as its investment manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
---------------------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Investments, LLC,
as its investment manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
---------------------------------------------
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
PINEHURST TRADING, INC.
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
PPM SHADOW CREEK FUNDING LLC
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
RACE POINT CLO LIMITED as Term Lender
By: Sankaty Advisors, LLC, as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
ROSEMONT CLO, LTD.
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Sr. Vice President
SANKATY HIGH YIELD ASSET PARTNERS II, L.P.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD PARTNERS III, L.P.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SAWGRASS TRADING LLC
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
SEABOARD CLO 2000 LTD.
By: Orix Capital Markets, LLC
its Collateral Manager
By: /s/ Xxxxxxxx X.X. Xxxxx, Xx.
---------------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Managing Director
SENIOR DEBT PORTFOLIO.
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
SENIOR LOAN FUND
By: Boston Management and Research
as Investment Advisor
By: /s/ X.X. Xxxxxxxx
---------------------------------------------
Name: X.X. Xxxxxxxx
Title: Director
SEQUILS I, LTD
By: TCW Advisors Inc., as its
Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SEQUILS IV, LTD
By: TCW Advisors Inc., as its
Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SEQUILS - CENTURION V, LTD.
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SEQUILS-CUMBERLAND I, LTD.
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Sr. Vice President
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc., as
Collateral Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
SEQUILS-MAGNUM, LTD. (#1280)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
SKM-LIBERTYVIEW CBO I, LTD.
By: /s/ Xxxxxxx X. Klegal
---------------------------------------------
Name: Xxxxxxx X. Klegal
Title: Authorized Signatory
SRF 2000 LLC
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX QUATTRO CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
STANWICH LOAN FUNDING LLC
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
XXXXX XXX & FARNHAM CLO1 LTD.
By: Xxxxx Xxx & Xxxxxxx Incorporated, as
Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President & Portfolio
Manager
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
By: Xxxxx Xxx & Xxxxxxx Incorporated
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SUFFIELD CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
---------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
THE SUMITOMO TRUST & BANKING CO., LTD. NEW YORK
BRANCH
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
TERMOPYLAE FUNDING CORP.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC,
as a Term Loan Lender
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management International
Company LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
TRITON CBO III, LIMITED
By: INVESCO Senior Secured Management, Inc. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
TRITON CDO IV, LIMITED
By: INVESCO Senior Secured Management, Inc. as
Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
VENTURE CDO 2002, LIMITED
By: Barclays Capital Asset Management Limited,
its investment advisor
By: Barclays Bank PLC, New York Branch, its
sub-advisor
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
EXHIBIT A
NOTE
New York, New York
_________ ___,_____
For value received, LYONDELL PETROCHEMICAL COMPANY, a Delaware corporation
(the "Borrower"), promises to pay to the order of ______________________ (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Xxxxxx Guaranty Trust Company of New York, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Lender, the respective Classes and Types thereof and
all repayments of the principal thereof shall be recorded by the Lender and, if
the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make (or any error in
making) any such recordation or endorsement shall not affect the Borrower's
obligations hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of July 23, 1998 among Lyondell Petrochemical Company, certain financial
institutions, Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent,. DLJ Capital Funding Inc., as Syndication Agent, and Bank of America
National Trust and Savings Association, Citibank, N.A., The Chase Manhattan Bank
and NationsBank, N.A, as Documentation Agents (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
LYONDELL PETROCHEMICAL COMPANY
By:
-----------------------------
Name:
A-1
Title:
A-2
LOANS AND PAYMENTS OF PRINCIPAL
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CLASS AND AMOUNT OF
AMOUNT OF TYPE PRINCIPAL
DATE LOAN OF LOAN REPAID NOTATION MADE BY
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A-3
EXHIBIT B
XXXXX XXXXX L.L.P. OPINION
[Restatement Date]
TO: JPMorgan Chase Bank, as Administrative
Agent, and the Lenders referred to below
Lyondell Chemical Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(i) of the
Amended and Restated Credit Agreement dated as of June 27, 2002 (the "Credit
Agreement") among Lyondell Chemical Company, as Borrower (the "Company"),
JPMorgan Chase Bank, as Administrative Agent, Bank of America, N.A. and
Citibank, N.A., as Co-Syndication Agents, Societe Generale and UBS Warburg LLC,
as Co-Documentation Agents, and the Lenders party thereto.
Capitalized terms used herein and not otherwise defined herein have the
meanings given to them in the Credit Agreement. The Company, Lyondell Chemical
Worldwide, Inc., a Delaware corporation ("LCW"), Lyondell Chemical Nederland,
Ltd., a Delaware corporation ("LCNL"), PO Offtake, LP, a Delaware limited
partnership, Lyondell POTechGP, Inc., a Delaware corporation, Lyondell POTechLP,
Inc. a Delaware corporation, Lyondell General Methanol Company, a Delaware
corporation, Lyondell Limited Methanol Corporation, a Delaware corporation, ARCO
Chemical Technology, Inc., a Delaware corporation, ARCO Chemical Technology,
L.P., a Delaware limited partnership, Lyondell Refining Company, a Delaware
corporation, Lyondell Refining LP, LLC, a Delaware limited liability company,
Lyondell Petrochemical G.P. Inc., a Delaware corporation, and Lyondell
Petrochemical L.P. Inc. a Delaware corporation, are hereinafter referred to,
collectively, as the "Loan Parties" and, individually, as a "Loan Party".
We have acted as counsel to the Company in connection with the Credit
Agreement. In that connection we have examined executed counterparts of the
following:
(i) the Credit Agreement;
(ii) the Subsidiary Guarantee dated July 28, 1998 and the
Subsidiary Guarantee dated as of April 17, 2000;
(iii) (A) the three Borrower Pledge Agreements, each dated
July 28, 1998, (B) the Pledge Agreement between the Company
and the Administrative Agent dated December 31, 1998 (the
"LLC
B-1
Pledge Agreement"), (C) the Pledge Agreement between LCW and
the Administrative Agent dated as of May 17, 1999, and (D)
the Pledge Agreement between the Company and the
Administrative Agent dated as of March 31, 2000
(collectively, as amended by the documents identified in
item (v) below, the "Existing Pledge Agreements");
(iv) (A) the JV Subsidiary Security Agreements, each dated
July 28, 1998, (B) the Security Agreement between Lyondell
Refining LP, LLC and the Administrative Agent dated December
31, 1998, (C) the Security Agreement between the Company and
the Administrative Agent, as the Collateral Agent, dated as
of May 17, 1999, (D) the Security Agreement between LCW and
the Administrative Agent, as the Collateral Agent, dated as
of May 17, 1999, (E) the Security Agreement between PO
Offtake, LP and the Administrative Agent dated as of March
31, 2000, and (F) the Security Agreement among Lyondell
POTechGP, Inc., Lyondell POTechLP, Inc. and the
Administrative Agent dated as of March 31, 2000 (as amended
by the documents identified in item (v) below, the "Existing
Security Agreements");
(v) (A) the Amendment to Certain Security Agreements and Pledge
Agreements dated as of May 17, 1999, and (B) the Amendment
to Certain Security Agreements and Pledge Agreements dated
as of December 4, 2001;
(vi) the Amendment to Certain Security Agreements and Pledge
Agreements of even date herewith, (the Existing Pledge
Agreements and the Existing Security Agreements, as so
amended, are hereinafter referred to as the "Amended Pledge
Agreements" and the "Amended Security Agreements,"
respectively);
(vii) the Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999
and effective May 17, 1999 from the Company (as
successor-by-merger to LCW) to Xxxxx Xxxxxx, Trustee, for
the benefit of the Administrative Agent, as the Beneficiary
(as defined therein), with respect to the Channelview, Texas
facility of the Company, as amended by Amendment No. 1 to
Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of December 4,
2001;
(viii) the Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999
B-2
and effective May 17, 1999 from the Company (as
successor-by-merger to LCW) to Xxxxx Xxxxxx, Trustee, for
the benefit of the Administrative Agent, as the Beneficiary
(as defined therein), with respect to the Bayport, Texas
facility of the Company, as amended by Amendment No. 1 to
Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of December 4,
2001 (together with the agreements referred to in clause
(vii) immediately above, the "Existing Texas Mortgages", and
as further amended by items (x) and (xi) below,
respectively, the "Amended Texas Mortgages");
(ix) the Mortgage, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999
and effective May 17, 1999 from the Company (as
successor-by-merger to LCW) to the Administrative Agent, as
the Mortgagee (as defined therein), with respect to the Lake
Charles, Louisiana facility of the Company, as amended by
Amendment No. 1 to Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of
December 4, 2001 (as so amended, the "Existing Louisiana
Mortgage" and as further amended by item (xii) below, the
"Amended Louisiana Mortgage", and, together with the Amended
Texas Mortgages, the "Amended Mortgages");
(x) Amendment No. 2 to Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as
of even date herewith from the Company (as
successor-by-merger to LCW) to the Administrative Agent, as
the Beneficiary (as defined therein), with respect to the
Channelview, Texas facility of the Company;
(xi) Amendment No. 2 to Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as
of even date herewith from the Company (as
succsssor-by-merger to LCW) to the Administrative Agent, as
the Beneficiary (as defined therein), with respect to the
Bayport, Texas facility of the Company;
(xii) Amendment No. 2 to Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of even
date herewith from the Company (as successor-by-merger to
LCW) to the Administrative Agent, as the Mortgagee (as
defined therein), with respect to the Lake Charles,
Louisiana facility of the Company; and
B-3
(xiii) the form of Note attached as Exhibit A to the Credit
Agreement.
Items (i) through (xiii) are hereafter sometimes referred to each as a "Loan
Document," and collectively, the "Loan Documents". The Amended Pledge
Agreements, the Amended Security Agreements and the Amended Texas Mortgages are
collectively referred to herein as the "Amended Collateral Documents". In
addition, we have examined the UCC financing statements (copies of which are
attached hereto, together with the UCC financing statements referred to therein,
the "Financing Statements") executed, respectively, by the Company, LCW and the
JV Subsidiaries (other than Lyondell Petrochemical L.P. Inc.) prior to the date
hereof and filed prior to the date hereof, certificates of representatives of
the Loan Parties and other documents as the basis for our opinions hereinafter
set forth.
On the basis of the foregoing, and subject to the assumptions,
qualifications and limitations set forth below, we are of the opinion that:
1. The Credit Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. Each Note, when properly completed and executed and delivered by the
Company, will constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. Each of the
Subsidiary Guarantees and the Amended Collateral Documents, other than the
Louisiana Mortgage, constitutes the legal, valid and binding obligation of each
Loan Party that is a party thereto, enforceable against that Loan Party in
accordance with its terms.
2. The execution, delivery and performance by the Loan Parties of
the respective Loan Documents (other than the Amended Mortgages) to which they
are party do not (a) violate any applicable federal or New York law or (b)
require as a condition precedent thereto consent or approval of, registration or
filing with, or any other action by, any governmental authority, except for the
filing and recordation of the Amended Mortgages and of UCC financing statements
pursuant to the Loan Documents. The execution, delivery and performance of the
Amended Texas Mortgages by the Company do not (a) violate any applicable federal
or Texas law or (b) require as a condition precedent thereto consent or approval
of, registration or filing with, or any other action by, any governmental
authority, except for the filing and recordation of the Amended Texas Mortgages
and of UCC financing statements pursuant to the Amended Texas Mortgages. The
execution, delivery and performance by the Company of the Amended Louisiana
Mortgage do not (a) violate any applicable federal law or (b) require as a
condition precedent thereto consent or approval of, registration or filing with,
or any other action by, any federal governmental authority.
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3. No Loan Party is (a) an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, (b) a "holding company" or a
"subsidiary company" as defined in the Public Utility Holding Company Act of
1935, as amended, or (c) otherwise subject to any statute or regulation (other
than Regulations U and X of the Board of Governors of the Federal Reserve
System) that restricts its ability to incur Debt under the Credit Agreement.
4. The making of Loans and the application of the proceeds thereof
as provided for in the Credit Agreement do not violate Regulation U or X of the
Board of Governors of the Federal Reserve System.
5. The Amended Security Agreements create valid security interests
in favor of the Administrative Agent for the benefit of the "Secured Parties,"
as defined and to the extent provided therein, in all right, title and interest
of the respective Loan Parties that are party thereto in that portion of the
"Collateral" (as defined in the Amended Security Agreements) in which a security
interest may be created under Article 9 of the Uniform Commercial Code in effect
in the State of New York (the "New York Code"). Except as otherwise provided by
Sections 9-303 through 9-306 of the New York Code, the perfection of such
security interests will, pursuant to Section 9-301 of the New York Code, be
determined under the local laws of the jurisdiction in which the debtor is
located (which is the State of Delaware for each Loan Party), and assuming that
Chapter 9 of the Uniform Commercial Code of the State of Delaware ("Delaware
Code") governs the perfection of a security interest in personal property and
that the Delaware Code is identical to the New York Code, as a result of the
filing of the applicable Financing Statements executed by those respective Loan
Parties, the Administrative Agent has a perfected security interest within the
meaning of the Delaware Code in that portion of the Collateral and in the
proceeds thereof in which a security interest may be created under Article 9 of
the New York Code and perfected by so filing the Financing Statements, subject,
however, with respect to proceeds, to Section 9-315 of the New York Code and any
comparable provisions of the Delaware Code.
6. Each Amended Pledge Agreement creates a valid security interest
in favor of the Administrative Agent for the benefit of the "Secured Parties,"
as defined and to the extent provided therein, in all right, title and interest
of the Company in the Subsidiary Shares (as such term is defined in those pledge
agreements other than the LLC Pledge Agreement), in the Subsidiary Interest (as
defined in the LLC Pledge Agreement) and in that portion of the Collateral (as
defined in those pledge agreements) and the proceeds thereof to the extent a
security interest may be created under the New York Code. As a result of the
filing of the applicable Financing Statements executed by the Company, the
Administrative Agent has a perfected security interest within the meaning of
Chapter 9 of the New York Code in the Subsidiary Interest and such Collateral
and in those proceeds to the extent such security interest therein may be
perfected by so filing, subject, however, with respect to proceeds, to Section
9-315 of the
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New York Code and any comparable provisions of the Delaware Code. Assuming (a)
delivery in New York on or prior to this date to, and continued possession and
control (within the meaning of Section 8-106 of the New York Code) in New York
by, the Administrative Agent of the stock certificates representing the issued
and outstanding Subsidiary Shares, together with stock powers properly executed
in blank with respect thereto, and (b) the Administrative Agent acquired its
interest in those Subsidiary Shares in good faith and without notice of any
adverse claims (as such term is defined in Section 8-103 of the New York Code),
the Administrative Agent has a perfected security interest in those Subsidiary
Shares within the meaning of Article 9 of the New York Code, free of adverse
claims to the extent provided by Articles 8 and 9 of the New York Code.
7. Each Amended Texas Mortgage creates a valid lien in favor of the
Administrative Agent for the benefit of the "Secured Parties," as defined and to
the extent provided therein, in all right, title and interest of the Company in
such of the "Mortgaged Property" described therein as constitutes real property
under the law of the State of Texas (the "Real Property"). The proper recordings
of the Amended Texas Mortgages in the real property records of the County Clerk
of Xxxxxx County, Texas are the only filings, recordings and registrations
necessary to publish notice and preserve the liens of the Amended Texas
Mortgages in the Real Property. Each Amended Texas Mortgage creates a valid
security interest in favor of the Administrative Agent for the benefit of such
Secured Parties to the extent provided therein in all right, title and interest
of the Company in that portion of the "Mortgaged Property" (other than the Real
Property) in which a security interest may be created under Chapter 9 of the
Texas Code (the "Texas UCC Collateral"). As a result of the filing of the
applicable Financing Statements, the Administrative Agent has a perfected
security interest within the meaning of the Texas Code in that portion of the
Texas UCC Collateral which may be perfected by so filing such Financing
Statements and in the proceeds thereof in which a security interest may be
created under Chapter 9 of the Texas Code and perfected by so filing those
Financing Statements, subject, however, with respect to proceeds, to Section
9.315 of the Texas Code.
8. No mortgage tax, documentary stamp tax, recording tax, transfer
tax or similar tax or charge is payable by the Administrative Agent to the State
of Texas or any governmental agency thereof on account of the Liens created by
the Amended Collateral Documents or the filing, recording or registration of the
Texas Mortgages or the Financing Statements, except for nominal filing or
recording fees.
9. The security interests created by the Amended Collateral
Documents secure all future Loans and Reimbursement Obligations of the Company
in respect of the Letters of Credit and, insofar as the priority of those
security interests is governed by the New York Code, the Delaware Code, the
Texas Code and the Texas Property Code, have the same priority (subject to
Section 9.307 of
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the New York Code and by comparable provisions of the Texas Code and Delaware
Code) with respect to those future extensions of credit as they have with
respect to the Loans made on the date hereof, except (a) to the extent that any
priority may be affected by any Lien imposed by law in favor of any government
or governmental authority or agency and (b) as to after acquired property that
is covered by those documents, Liens to which such property is subject at the
time of acquisition by the applicable Loan Party.
10. If all material facts and issues of law were presented and
properly argued, a Texas court, or a federal court sitting in the State of
Texas, should give effect to the governing law provisions of the Loan Documents,
subject to Section 35.51(f)(4) of the Texas Code.
11. The execution, delivery and performance by the Loan Parties of
the Loan Documents to which they are party do not constitute a default under the
ARCO Chemical Indenture.
The foregoing opinions are subject to the following assumptions,
qualifications and limitations:
(A) We have, without independent verification, relied on
certificates of representatives of the Loan Parties and the
representations and warranties of the Loan Parties contained in the
Loan Documents with respect to the accuracy of the factual matters
contained therein and assumed with your approval (i) that each party
to the Loan Documents has the power and authority to enter into those
Loan Documents and to perform its obligations thereunder, (ii) the due
authorization, execution and delivery of the Loan Documents by each
party thereto, including such authorization, execution and delivery of
the Credit Agreement by the requisite number of Lenders, (iii) that
the Loan Documents constitute the legal, valid, binding and
enforceable obligation of each party thereto (other than the Loan
Parties) and (iv) the genuineness of all signatures, the conformity to
authentic, original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of all documents
submitted to us as originals.
(B) Our opinions set forth in paragraphs 1 through 9 are subject
to the effect of (i) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance, moratorium,
conservatorship and similar laws affecting creditor's rights and
remedies generally, (ii) general principles of equity (whether
considered in a proceeding in equity or at law), (iii) principles of
materiality and reasonableness and implied covenants of good faith and
fair dealing and (iv) the rights of the United States under the
Federal Tax Lien Act of 1966, as amended. Additionally, the validity
and enforceability of certain of the remedial and waiver provisions of
the Amended Collateral Documents may be limited by
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applicable laws and judicial interpretations, but, in our opinion and
subject to the other qualifications and limitations set forth herein
and the economic consequences of any delay in the enforcement of the
remedies provided for in the Loan Documents, those limitations should
not substantially interfere with (i) the judicial enforcement of the
obligation of the Company to repay the Loans and the interest accrued
thereon (to the extent not deemed a penalty), as provided in the
Credit Agreement, subject to Sections 51.003, 51.004 and 51.005 of the
Texas Property Code, (ii) the acceleration of the obligation of the
Company to repay the Loans, together with such interest, upon an Event
of Default arising from the failure to pay such obligations when due
or upon the failure to perform any other material provision of the
Loan Documents to be performed by it or any other Loan Party and (iii)
the judicial foreclosure or, if the Collateral Agent elects to
exercise the power or right of sale as specified in the Amended
Collateral Documents, the non-judicial foreclosure of the Liens
created by the Amended Collateral Documents, and the sale of the
personal property Collateral, at maturity or upon an acceleration
described in clause (ii) immediately above in accordance with
applicable law and the Loan Documents. Further to the foregoing, the
provisions of the Loan Documents regarding the rights and remedies
available to the Secured Parties after the occurrence of a Default or
Event of Default are subject to procedural requirements that are not
necessarily reflected in the Loan Documents which may affect or
restrict the rights and remedies so stated to be available thereunder.
We express no opinion as to whether a court would grant specific
performance or any other equitable remedy or any particular remedy or
the enforceability of any self-help remedy
(C) With respect to our opinion in paragraph 3, we assume that
the Loan Parties own no assets and conduct no business other than as
described in the Company's Annual Report on Form 10-K for fiscal year
2001.
(D) We call to your attention that Section 552 of the United
States Bankruptcy Code limits the extent to which proceeds realized
and property acquired by a debtor after the commencement of a case
thereunder may be subject to a security interest arising from a
security agreement entered into by the debtor before the commencement
of that case.
(E) No opinion is expressed above as to the enforceability of
Section 9.02 or 9.04 of the Credit Agreement or provisions of similar
import contained in any other Loan Document or any provision of the
Loan Documents that purports to (i) waive rights of any party that
cannot be waived as a matter of applicable law, (ii) entitle a party
to indemnification or absolution from liability in respect of any
matters arising under any securities laws or in whole or in part by
reason of any
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illegal, wrongful or grossly negligent act or omission of that party,
(iii) prohibit any unwritten waivers of or amendments to any
provisions of the Loan Documents, (iv) establish any evidentiary
standard, (v) restrict access to legal or equitable remedies or (vi)
grant remedies exercisable when no Default or Event of Default exists.
(F) We express no opinion as to (i) the enforceability of
provisions relating to delay or omission of enforcement of rights or
remedies, marshaling of assets, rights of third parties or
prohibitions against transfer, alienation or hypothecation of
property, (ii) the enforceability of a present assignment of assets or
rental income from the Mortgaged Property without first requiring the
Collateral Agent to obtain lawful possession of the Mortgaged Property
after the occurrence of an Event of Default under the Loan Documents,
(iii) any right to exclude a Loan Party from possession of the
Mortgaged Property prior to the time lawful possession is obtained
through foreclosure proceedings or other lawful means, (iv) the
enforceability of provisions appointing a Person as attorney-in-fact
for another Person, (v) whether a court would construe a yield
maintenance payment due as a penalty which is not enforceable or
collectible, (vi) the enforceability of provisions which leave any
provision to subsequent agreement or (vii) the enforceability of any
provisions that provide for certain acts or matters to be null and
void automatically or ab initio.
(G) No opinion is expressed above as to (i) the effect of any
state or federal securities laws or regulations insofar as they are
applicable to or otherwise affect any party to any Loan Document, the
transactions contemplated by the Loan Documents or the exercise of any
rights or remedies of any party to the Loan Documents or (ii) various
state and federal laws and regulations applicable to banks, insurance
companies or other financial institutions or the business or lending
transactions of the Administrative Agent, the Agents or the Lenders or
any assignee or participant of any such Person which may relate to the
Loan Documents or the transactions contemplated thereby.
(H) We express no opinion as to the priority of any Liens created
by the Amended Collateral Documents, except to the extent set forth in
paragraph 6. We have assumed, with your approval and without
independent verification, that (i) the Financing Statements set forth
the correct name and address of the Administrative Agent and (ii) the
Loan Parties party to the Amended Collateral Documents have rights in
the Collateral. We have assumed that (i) the descriptions of the
previously filed Financing Statements referred to in the attached
Financing Statements accurately identify the office(s) in which such
financing statements were filed, the dates of filing and file numbers
and the most recent continuation and amendment statements filed with
respect thereto,
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(ii) the attached Financing Statements and such previously filed
Financing Statements referred to therein, and any applicable
continuation and amendment statements, are in fact properly filed in
such filing offices, and (iii) the previously filed Financing
Statements purportedly filed in filing offices other than in the State
of Texas perfected the UCC Collateral under applicable law. We express
no opinion as to (i) the value of, the accuracy or completeness of any
description of, or the location or characterization of, any personal
property Collateral or the value of, the location or characterization
of, or the accuracy, completeness or sufficiency of any description
of, the Real Property, including for purposes of notice or conveyance,
(ii) the physical condition or actual use made of any Collateral and
(iii) whether any Collateral is in compliance with any laws or
regulations relating to the construction, occupancy or use thereof,
including zoning laws, building codes and environmental laws.
(I) We express no opinion with respect to any Collateral which is
or may become fixtures (except as paragraph 7 sets forth),
as-extracted collateral, equipment used in farming operations, farm
products, accounts or general intangibles arising from or relating to
the sale of farm products by a xxxxxx, consumer goods, crops growing
or to be grown, timber to be cut, minerals or the like (including oil
and gas) or accounts resulting from the sale of minerals at the
wellhead or minehead.
(J) We call to your attention that (i) assuming the Delaware Code
is identical to the New York Code to such matter, the Delaware Code
requires the filing of UCC continuation statements, executed by the
secured party of record, within the period of six months prior to the
expiration of each period of five years from the respective dates of
the original filings of UCC financing statements in order to maintain
the effectiveness of such filings, (ii) changes in the name, identity
or corporate structure or the location (within the meaning of Section
9-307 of the New York Code and by comparable provisions of the
Delaware Code) of the Loan Parties may cause the security interests of
the Collateral Agent purported to be created by the Amended Collateral
Documents to be unperfected unless new, appropriate UCC financing
statements are properly filed in the appropriate jurisdictions.
(K) Our opinion in paragraph 11 is not free from doubt. The ARCO
Chemical Indenture does not define the phrase "equally and ratably"
contained in Section 5.03 thereof, and we are not aware of any case in
which a court has considered whether arrangements of the sort provided
for in the Collateral Documents conflict with a covenant such as
Section 5.03. Consequently, a court considering those arrangements
might reach a conclusion different from ours.
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This opinion is limited to the applicable laws of the State of New
York, the State of Texas (but only with respect to our opinions regarding
the Amended Texas Mortgages taxes set forth in paragraph 8, future
extensions of credit set forth in paragraph 9 and choice of law set forth
in paragraph 10) and applicable federal law, each as in effect on the date
hereof, and no opinion is expressed herein as to the laws of any other
jurisdiction. We are not licensed to practice law in the State of Delaware
and no opinion is expressed herein on the laws of the State of Delaware. We
undertake no obligation or responsibility to update or supplement this
opinion in response to subsequent changes in law or future events affecting
any of the transactions contemplated by any Loan Document. This opinion is
rendered solely for your benefit in connection with the transactions
contemplated by the Credit Agreement to be consummated on this date. This
opinion may not be used for any other purpose or relied on by any other
Person without, in each instance, our prior written consent.
Very truly yours,
X-00
XXXXXXX X
XXXXXXXX'X XXXXXX GENERAL COUNSEL OPINION
[Restatement Date]
To: JPMorgan Chase Bank, as Administrative Agent,
and the Lenders referred to below
Lyondell Chemical Company
Ladies and Gentlemen:
I am the Vice President, Deputy General Counsel and Assistant Secretary of
Lyondell Chemical Company, a Delaware corporation (the "Company"). I have acted
as counsel to the Company in connection with the execution and delivery of the
Amended and Restated Credit Agreement dated as of June 27, 2002 (the "Credit
Agreement") among the Company, as Borrower, JPMorgan Chase Bank, as
Administrative Agent, Bank of America, N.A. and Citibank, N.A., as
Co-Syndication Agents, Societe Generale and UBS Warburg LLC, as Co Documentation
Agents, and the Lenders party thereto. This opinion is furnished to you, at the
request of the Company, pursuant to Section 3.01(a)(ii) of the Credit Agreement.
Capitalized terms used herein and not otherwise defined herein have the meanings
given to them in the Credit Agreement.
I have examined the originals, or copies certified or otherwise identified,
of the corporate records, including minute books, of the Company and each of
Lyondell Chemical Worldwide, Inc. ("LCW"), Lyondell Refining Company, Lyondell
General Methanol Company, Lyondell Limited Methanol Company, Lyondell Refining
LP, LLC ("LRLP"), ARCO Chemical Technology, Inc., ARCO Chemical Technology, L.P.
("ARCO LP"), Lyondell Petrochemcal G.P. Inc., Lyondell Petrochemcal L.P. Inc.,
Lyondell Chemical Nederland, Ltd., PO Offtake, LP ("POLP"), Lyondell POTechGP,
Inc., and Lyondell POTechLP, Inc. (together with the Company, the "Loan
Parties"), certificates of public officials and representatives of the Loan
Parties, statutes and other instruments and documents as the basis for my
opinions hereinafter set forth. In giving such opinions, I have relied upon
certificates of officers of the Loan Parties with respect to the accuracy of the
material factual matters contained in such certificates. I have assumed that all
signatures on documents examined by me are genuine, all documents submitted to
me are authentic and all documents submitted as certified or photostatic copies
conform to the originals thereof.
I have examined and relied upon executed originals or photostatic copies,
certified or otherwise identified to my satisfaction, of:
(i) the Credit Agreement;
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(ii) the Subsidiary Guarantee dated July 28, 1998 and the
Subsidiary Guarantee dated as of April 17, 2000;
(iii) (A) the three Borrower Pledge Agreements, each dated
July 28, 1998, (B) the Pledge Agreement between the Company and the
Administrative Agent dated December 31, 1998 (the "LLC Pledge Agreement"), (C)
the Pledge Agreement between Lyondell Chemical Worldwide, Inc. ("LCW") and the
Administrative Agent dated as of May 17, 1999, and (D) the Pledge Agreement
between the Company and the Administrative Agent dated as of March 31, 2000
(collectively, as amended by the documents identified in item (v) below, the
"Existing Pledge Agreements");
(iv) (A) the JV Subsidiary Security Agreements, each dated
July 28, 1998, (B) the Security Agreement between Lyondell Refining LP, LLC and
the Administrative Agent dated December 31, 1998, (C) the Security Agreement
between the Company and the Administrative Agent, as the Collateral Agent, dated
as of May 17, 1999, (D) the Security Agreement between LCW and the
Administrative Agent, as the Collateral Agent, dated as of May 17, 1999, (E) the
Security Agreement between PO Offtake, LP and the Administrative Agent dated as
of March 31, 2000, and (F) the Security Agreement among Lyondell POTechGP, Inc.,
Lyondell POTechLP, Inc. and the Administrative Agent dated as of March 31, 2000
(as amended by the documents identified in item (v) below, the "Existing
Security Agreements");
(v) (A) the Amendment to Certain Security Agreements and Pledge
Agreements dated as of May 17, 1999, and (B) the Amendment to Certain Security
Agreements and Pledge Agreements dated as of December 4, 2001;
(vi) the Amendment to Certain Security Agreements and Pledge
Agreements of even date herewith, (the Existing Pledge Agreements and the
Existing Security Agreements, as so amended, are hereinafter referred to as the
"Amended Pledge Agreements" and the "Amended Security Agreements,"
respectively);
(vii) the Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999 and effective
May 17, 1999 from the Company (as successor-by-merger to LCW) to Xxxxx Xxxxxx,
Trustee, for the benefit of the Administrative Agent, as the Beneficiary (as
defined therein), with respect to the Channelview, Texas facility of the
Company, as amended by Amendment No. 1 to Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement dated as of December 4,
2001;
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(viii) the Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999 and effective
May 17, 1999 from the Company (as successor-by-merger to LCW) to Xxxxx Xxxxxx,
Trustee, for the benefit of the Administrative Agent, as the Beneficiary (as
defined therein), with respect to the Bayport, Texas facility of the Company, as
amended by Amendment No. 1 to Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of December 4, 2001
(together with the agreements referred to in clause (vii) immediately above, the
"Existing Texas Mortgages", and as further amended by items (x) and (xi) below,
respectively, the "Amended Texas Mortgages");
(ix) the Mortgage, Assignment of Leases and Rents, Security
Agreement and Financing Statement dated as of May 13, 1999 and effective
May 17, 1999 from the Company (as successor by merger to LCW) to the
Administrative Agent, as the Mortgagee (as defined therein), with respect to
the Lake Charles, Louisiana facility of the Company, as amended by Amendment No.
1 to Mortgage, Assignment of Leases and Rents, Security Agreement and Financing
Statement dated as of December 4, 2001 (as so amended, the "Existing Louisiana
Mortgage" and as further amended by item (xii) below, the "Amended Louisiana
Mortgage", and, together with the Amended Texas Mortgages, the "Amended
Mortgages");
(x) Amendment No. 2 to Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as of even date herewith
from the Company (as successor-by-merger to LCW) to the Administrative Agent, as
the Beneficiary (as defined therein), with respect to the Channelview, Texas
facility of the Company;
(xi) Amendment No. 2 to Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement dated as of even
date herewith from the Company (as successor-by-merger to LCW) to the
Administrative Agent, as the Beneficiary (as defined therein), with respect to
the Bayport, Texas facility of the Company;
(xii) Amendment No. 2 to Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing Statement dated as of even date herewith from
the Company (as successor-by-merger to LCW) to the Administrative Agent, as the
Mortgagee (as defined therein), with respect to the Lake Charles, Louisiana
facility of the Company; and
(xiii) the form of Note attached as Exhibit A to the Credit
Agreement;
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(each a "Loan Document," and collectively, the "Loan Documents"). The Amended
Pledge Agreements, the Amended Security Agreements and the Amended Mortgages are
collectively referred to herein as the "Amended Collateral Documents".
Based upon the foregoing, subject to the qualifications, limitations,
exceptions and assumptions hereinafter set forth, and having due regard for such
legal considerations as I deem relevant, I am of the opinion that:
1. Each of the Loan Parties (other than LCW, ARCO LP, LRLP and
POLP), is a corporation duly incorporated and validly existing in good standing
under the laws of the State of Delaware and has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted. POLP is a limited partnership duly formed and validly
existing in good standing under the laws of the State of Delaware and has the
requisite partnership power and authority to own, lease and operate its
properties and to conduct its business as presently conducted. ARCO LP is a
limited partnership duly formed and validly existing in good standing under the
laws of the State of Delaware and has the requisite partnership power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted. LRLP is a limited liability company duly formed and
validly existing in good standing under the laws of the State of Delaware and
has the requisite limited liability company power and authority to own, lease
and operate its properties and to conduct its business as presently conducted.
Except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect, each Loan Party
(other than LCW) is qualified, licensed or registered to do business in, and is
in good standing in, every jurisdiction where such qualification, licensing and
registration is required.
2. Each Loan Party has (and in the case of LCW, had) the requisite
corporate, limited liability company or partnership power and authority to
execute and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution, delivery and performance by each Loan
Party of the Loan Documents to which it is a party have been duly authorized by
all necessary corporate or limited liability company or limited partnership
proceedings of that Loan Party.
3. The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party do not (a) contravene its certificate of
incorporation, by-laws, regulations or limited partnership agreement, as the
case may be, as amended to date, (b) except as qualified below, constitute a
default under any agreement or instrument governing Material Debt of any Loan
Party, (c) breach or otherwise violate any other material agreement of any Loan
Party or any judgment, order or decree of any governmental authority known to me
that is binding on any Loan Party or any of its assets or (d) except for the
Amended Collateral Documents, the Senior Secured Note Indentures, the ARCO
Chemical
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Indenture (as defined in the Amended Collateral Documents) and the PBGC
Settlement Agreement, result in the creation or imposition of any Lien on any
material properties or assets of any Loan Party. My opinion in clause (c) with
respect to the ARCO Chemical Indenture is not free from doubt. The ARCO Chemical
Indenture does not define the phrase "equally and ratably" contained in Section
5.03 thereof, and I am not aware of any case in which a court has considered
whether arrangements of the sort provided for in the Amended Collateral
Documents conflict with a covenant such as Section 5.03. Consequently, a court
considering those arrangements might reach a conclusion different from mine.
4. To my knowledge, there are no actions, suits or proceedings by or
before any court or arbitrator or any governmental body, agency or official that
are pending or threatened against or affecting any Loan Party or the respective
businesses, assets or rights of any Loan Party as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
This opinion is limited to applicable Texas law, federal law, the
General Corporation Law of the State of Delaware, the Delaware Limited Liability
Company Act and the Delaware Revised Uniform Limited Partnership Act, each as in
effect on the date hereof, and no opinion is expressed herein as to the laws of
any other jurisdiction. I undertake no obligation or responsibility to update or
supplement this opinion in response to subsequent changes in law or future
events affecting any of the transactions contemplated by any Loan Document. This
opinion is rendered solely for your benefit in connection with the transactions
contemplated by the Credit Agreement to be consummated on this date. Except for
the use permitted herein, this letter is not to be quoted or reproduced in whole
or in part or otherwise referred to in any manner, nor is it to be filed with
any governmental agency or delivered to any other person without my prior
written consent. This opinion may not be used for any other purpose or relied on
by any other Person without, in each instance, my prior written consent.
Very truly yours,
Xxxxxx X. X'Xxxxx
Deputy General Counsel
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EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 20__ among [NAME OF ASSIGNOR] (the
"Assignor") and [NAME OF ASSIGNEE] (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Amended and Restated Credit Agreement dated as of June 27, 2002 among
LYONDELL CHEMICAL COMPANY (the "Borrower"), the Assignor and the other Lenders
party thereto, JPMORGAN CHASE BANK, as Administrative Agent (the "Administrative
Agent"), BANK OF AMERICA, N.A. and CITIBANK, N.A., as Co-Syndication Agents (the
"Syndication Agents"), and SOCIETE GENERALE and UBS WARBURG LLC., as
Co-Documentation Agents (together with the Administrative Agent and the
Syndication Agents, the "Agents") (as amended from time to time, the "Credit
Agreement");
[WHEREAS, Term Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof;]
[WHEREAS, as provided under the Credit Agreement, the Assignor has a
Revolving Commitment to make Revolving Loans to the Borrower and participate in
Letters of Credit in an aggregate principal amount at any time outstanding not
to exceed $____________;]
[WHEREAS, Revolving Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;]
[WHEREAS, Letters of Credit with a total amount available for drawing
thereunder of $__________ are outstanding at the date hereof;]
[WHEREAS, as provided under the Credit Agreement, the Assignor has a Swing
Loan Commitment to make Swing Loans to the Borrower in an aggregate principal
amount at any time outstanding not to exceed $____________;]
[WHEREAS, Swing Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof;] and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of [all] [a portion] of
its [Term Loans] [[Revolving] [Swing Loan] Commitment] thereunder in an amount
equal to $__________ (the "Assigned Amount"), [together with a
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corresponding portion of each of its outstanding [Revolving Loans, Letter of
Credit Liabilities and participations in Swing Loans] [Swing Loans]], and the
Assignee proposes to accept such assignment and assume the corresponding
obligations of the Assignor under the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
Section 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
[Term Loans] [Revolving Loans, Letter of Credit Liabilities and participations
in Swing Loans] [Swing Loans] of the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor and the Assignee [and the
execution of the consent attached hereto by the Borrower[, the Issuing Banks,
the Swing Loan Lender] and the Administrative Agent] and the payment of the
amounts specified in Section 3 required to be paid on the date hereof and the
satisfaction of all other applicable conditions referred to in Section 9.06(c)
of the Credit Agreement (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Lender under the
Credit Agreement with a [Term Loan] [[Revolving] [Swing Loan] Commitment] in an
amount equal to the Assigned Amount [and acquire the rights of the Assignor with
respect to a corresponding portion of each of its outstanding [Revolving Loans,
Letter of Credit Liabilities and participations in Swing Loans] [and Swing
Loans]] [and (ii) the [Revolving] [Swing Loan] Commitment of the Assignor shall,
as of the date hereof, be reduced by the Assigned Amount,] and the Assignor
shall be released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them. It is
understood that commitment fees accrued before the date hereof are for the
account of the Assignor and such fees accruing on and after the date hereof with
respect to the Assigned Amount are for the account of the Assignee. Each of the
Assignor and the Assignee agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and promptly pay the same to such other party.
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Section 4. [ Consent Of The Borrower[, the Issuing Banks, the Swing Loan
Lender] and the Administrative Agent. This Agreement is conditioned upon the
consent of the Borrower[, the Issuing Banks, the Swing Loan Lender] and the
Administrative Agent pursuant to Section 9.06(c) of the Credit Agreement.]
Section 5. [Note. Pursuant to Section 9.06(c) of the Credit Agreement,
the Borrower has agreed to execute and deliver a Note payable to the order of
the Assignee to evidence the assignment and assumption provided for herein.]
Section 6. No Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition or statements of any Obligor, or the
validity and enforceability of the obligations of any Obligor in respect of the
Credit Agreement or any Note or any other Loan Document. The Assignee
acknowledges that it has, independently and without reliance on the Assignor,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Obligors.
Section 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
-----------------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
-----------------------------------------
Name:
Title:
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[The undersigned consent to the foregoing assignment.
[LYONDELL CHEMICAL COMPANY]
By:
-----------------------------------------
Name:
Title:
[JPMORGAN CHASE BANK, as Administrative Agent]
By:
-----------------------------------------
Name:
Title:
[NAME OF EACH ISSUING BANK]
By:
-----------------------------------------
Name:
Title:
[NAME OF SWING LOAN LENDER]
By:
-----------------------------------------
Name:
Title:]
D-5
EXHIBIT E
DESIGNATION AGREEMENT
dated as of ________________, 20____
Reference is made to the Amended and Restated Credit Agreement dated as of
June 27, 2002 (as amended from time to time, the "Credit Agreement") among
Lyondell Chemical Company, a Delaware corporation (the "Borrower"), the Lenders
party thereto (the "Lenders"), JPMorgan Chase Bank, as Administrative Agent (the
"Administrative Agent"), Bank of America, N.A. and Citibank, N.A., as
Co-Syndication Agents, and Societe Generale and UBS Warburg LLC, as
Co-Documentation Agents. Terms defined in the Credit Agreement are used herein
with the same meaning.
_________________ (the "Designator") and ________________ (the "Designee")
agree as follows:
5. The Designator designates the Designee as its Designated Lender under
the Credit Agreement and the Designee accepts such designation.
6. The Designator makes no representations or warranties and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Obligor or the performance or observance by the Borrower or any other
Obligor of any of its obligations under the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto.
7. The Designee confirms that it is an Eligible Designee, appoints and
authorizes the Designator as its administrative agent and attorney-in-fact and
grants the Designator an irrevocable power of attorney to receive payments made
for the benefit of the Designee under the Credit Agreement and the other Loan
Documents and to deliver and receive all communications and notices under the
Credit Agreement and the other Loan Documents, if any, that the Designee is
obligated to deliver or has the right to receive thereunder, and acknowledges
that the Designator retains the sole right and responsibility to vote under the
Credit Agreement and the other Loan Documents, including, without limitation,
the right to approve any amendment or waiver of any provision of the Credit
Agreement or any other Loan Document, and agrees that the Designee shall be
bound by all such votes, approvals, amendments and waivers and all other
agreements of the Designator pursuant to or in connection with the Credit
Agreement or any other Loan Document, all subject to Section of the Credit
Agreement.
8. The Designee confirms that it has received a copy of the Credit
Agreement and each other Loan Document, together with copies of the most
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recent financial statements referred to in Article or delivered pursuant to
Article of the Credit Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Designation Agreement, agrees that it will, independently and without
reliance upon the Administrative Agent, the Designator or any other Agent or
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
any action it may be permitted to take under the Credit Agreement or any other
Loan Document.
9. Following the execution of this Designation Agreement by the
Designator and the Designee and the consent hereto by the Borrower, it will be
delivered to the Administrative Agent for its consent. This Designation
Agreement shall become effective when the Administrative Agent consents hereto
or on any later date specified on the signature page hereof.
10. Upon the effectiveness hereof, the Designee shall have the right to
make Loans or portions thereof as a Lender pursuant to Section of the Credit
Agreement and the rights of a Lender related thereto and the making of any such
Loans or portions thereof by the Designee shall satisfy the obligations of the
Designator under the Credit Agreement to the same extent, and as if, such Loans
or portions thereof were made by the Designator.
11. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Designation Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Effective Date/1/:______ , 20___
[NAME OF DESIGNATOR]
By:
----------------------------------------
Name:
Title:
[NAME OF DESIGNEE]
By:
----------------------------------------
Name:
Title:
The undersigned consent to the foregoing designation.
LYONDELL CHEMICAL COMPANY
By:
----------------------------------------
Name:
Title:
----------
/1/ This date should be no earlier than the date of the Agent's consent
hereto.
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