EXHIBIT 10.1.1
$1,000,000,000
CREDIT AGREEMENT
dated as of
November 4, 1994
among
Union Carbide Corporation,
The Banks Party Hereto,
The Co-Agents Party Hereto,
Morgan Guaranty Trust Company of New York,
as Documentation Agent
and
Chemical Bank,
as Administrative Agent and Auction Agent
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions .............................. 1
SECTION 1.02. Accounting Terms and
Determinations ......................... 18
SECTION 1.03. Types of Borrowings ...................... 19
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend ...................... 19
SECTION 2.02. Notice of Committed
Borrowings ............................. 19
SECTION 2.03. Money Market Borrowings .................. 20
SECTION 2.04. Notice to Banks; Funding of
Loans .................................. 25
SECTION 2.05. Notes .................................... 27
SECTION 2.06. Maturity of Loans ........................ 27
SECTION 2.07. Interest Rates ........................... 28
SECTION 2.08. Fees ..................................... 31
SECTION 2.09. Optional Termination or
Reduction of Commitments ............... 32
SECTION 2.10. Prepayments .............................. 32
SECTION 2.11. General Provisions as to
Payments ............................... 33
SECTION 2.12. Funding Losses ........................... 34
SECTION 2.13. Computation of Interest and
Fees ................................... 34
SECTION 2.14. Withholding Tax Exemption ................ 35
SECTION 2.15. Regulation D Compensation ................ 35
SECTION 2.16. Alternative Currency
Advances ............................... 36
___________
* The Table of Contents is not a part of this Agreement.
Page
SECTION 2.17. Judgment Currency ........................ 38
SECTION 2.18. Replacement of this Credit
Facility ............................... 39
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness ............................ 39
SECTION 3.02. Borrowings ............................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and
Power .................................. 42
SECTION 4.02. Corporate and Governmental
Authorization; No
Contravention .......................... 43
SECTION 4.03. Binding Effect ........................... 43
SECTION 4.04. Financial Information .................... 43
SECTION 4.05. Litigation ............................... 44
SECTION 4.06. Compliance with ERISA .................... 44
SECTION 4.07. Environmental Matters .................... 45
SECTION 4.08. Restricted Subsidiaries .................. 45
SECTION 4.09. Not an Investment Company ................ 45
SECTION 4.10. Disclosure ............................... 45
ARTICLE V
COVENANTS
SECTION 5.01. Information .............................. 46
SECTION 5.02. Maintenance of Property;
Insurance .............................. 49
SECTION 5.03. Restricted Subsidiaries .................. 49
SECTION 5.04. Negative Pledge .......................... 50
SECTION 5.05. Limitation on Debt of
Subsidiaries ........................... 52
SECTION 5.06. Consolidations, Mergers and
Sales of Assets ........................ 53
SECTION 5.07. Minimum Consolidated
Tangible Net Worth ..................... 53
SECTION 5.08. Leverage Ratio ........................... 54
Page
SECTION 5.09. Interest Coverage Ratio .................. 54
SECTION 5.10. Use of Proceeds .......................... 54
SECTION 5.11. Payments from Domestic
Restricted Subsidiaries ................ 54
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default ........................ 54
SECTION 6.02. Notice of Default ........................ 57
ARTICLE VII
THE AGENTS AND CO-AGENTS
SECTION 7.01. Appointment and
Authorization .......................... 58
SECTION 7.02. Agents and Affiliates .................... 58
SECTION 7.03. Action by Agents ......................... 58
SECTION 7.04. Consultation with Experts ................ 58
SECTION 7.05. Liability of Agents ...................... 58
SECTION 7.06. Indemnification .......................... 59
SECTION 7.07. Credit Decision .......................... 59
SECTION 7.08. Successor Agents ......................... 59
SECTION 7.09. Distribution of Information .............. 60
SECTION 7.10. Co-Agents ................................ 60
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining
Interest Rate Inadequate
or Unfair .............................. 60
SECTION 8.02. Illegality ............................... 61
SECTION 8.03. Increased Cost and Reduced Return......... 62
SECTION 8.04. Base Rate Loans Substituted
for Affected Fixed Rate
Loans .................................. 64
Page
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices .................................. 65
SECTION 9.02. No Waivers ............................... 65
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification ........................ 65
SECTION 9.04. Sharing of Set-Offs ...................... 66
SECTION 9.05. Amendments and Waivers ................... 67
SECTION 9.06. Successors and Assigns ................... 67
SECTION 9.07. Collateral ............................... 70
SECTION 9.08. GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF
JURY TRIAL ............................. 70
SECTION 9.09. Counterparts; Integration ................ 71
SECTION 9.10. Confidentiality .......................... 71
SECTION 9.11. Severability ............................. 72
Pricing Schedule
Exhibit A - Note
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Opinion of Counsel for the Borrower
Exhibit F - Opinion of Special Counsel for the
Agents
Exhibit G - Administrative Questionnaire
Exhibit H - Assignment and Assumption Agreement
CREDIT AGREEMENT
AGREEMENT dated as of November 4, 1994 among UNION
CARBIDE CORPORATION, the BANKS party hereto, the CO-AGENTS
party hereto, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent, and CHEMICAL BANK, as Administrative
Agent and Auction Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as
used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute Rates
pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted Consolidated Debt" means at any date the
consolidated Debt of the Borrower and its Consolidated
Subsidiaries determined as of such date, excluding
(i) Debt of any Consolidated Kuwait Joint
Venture(including its obligation under any Guarantee
by it of Debt of any other Kuwait Joint Venture) so
long as such Debt (including any such obligation under
a Guarantee) is not Guaranteed by the Borrower or any
other Consolidated Subsidiary (except a Consolidated
Kuwait Joint Venture),
(ii) the Borrower's Kuwait Completion Guarantees
and the Debt of the Kuwait Joint Ventures Guaranteed
pursuant thereto, but only to the extent that the
aggregate amount of Debt Guaranteed by the Borrower's
Kuwait Completion Guarantees does not exceed
$650,000,000 and
(iii) Excluded Working Capital Financings.
"Administrative Agent" means Chemical Bank in its
capacity as Administrative Agent for the Banks hereunder, and
its successors in such capacity.
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in substantially
the form of Exhibit G hereto submitted to the Administrative
Agent (which shall promptly following receipt thereof give a
copy to the Borrower and the Documentation Agent) duly
completed by such Bank.
"Affiliate" means, with respect to any Person,
(i) any other Person that directly, or indirectly
through one or more intermediaries, controls such
Person (a "Controlling Person"), or
(ii) any other Person which is controlled by or
under common control with a Controlling Person.
As used in this definition, the term "control" means, with
respect to any Person, possession, directly or indirectly, of
the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agents" means the Administrative Agent, the Auction
Agent and the Documentation Agent, and "Agent" means any of
the foregoing.
"Alternative Currency" means any currency other than
Dollars which is freely transferable and convertible into
Dollars.
"Alternative Currency Advance" means an advance made
by a Bank to the Borrower in an Alternative Currency and
designated by the Borrower pursuant to Section 2.16(b) as an
Alternative Currency Advance for purposes of this Agreement.
"Alternative Currency Advance Report" has the
meaning set forth in Section 2.16(b).
"Alternative Currency Outstanding" means at any time
an amount equal to:
(i) for any Alternative Currency Advance with a
Dollar Equivalent of less than $5,000,000, $0 and
(ii) for any Alternative Currency Advance with a
Dollar Equivalent equal to at least $5,000,000, the
amount obtained by rounding to the greatest multiple of
$1,000,000 that is not larger than such Dollar
Equivalent.
"Applicable Alternative Currency Outstandings" means
at any time an amount equal to the lesser of:
(i) the aggregate amount of all Alternative
Currency Outstandings and
(ii) 30% of the aggregate amount of the
Commitments at such time.
"Applicable Lending Office" means, with respect to
any Bank,
(i) in the case of its Domestic Loans, its
Domestic Lending Office,
(ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office and
(iii) in the case of its Money Market Loans, its
Money Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Auction Agent" means Chemical Bank in its capacity
as Auction Agent for the Banks hereunder, and its successors
in such capacity.
"Bank" means each lender listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Bank Parties" has the meaning set forth in Section
9.10.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Reference Rate for such day or
(ii) the sum of 1/2 of 1% plus the Effective Federal Funds
Rate for such day.
"Base Rate Loan" means a Committed Loan made or to
be made by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to
Article VIII.
"Benefit Arrangement" means at any time an employee
benefit plan within the meaning of Section 3(3) of ERISA which
is not a Plan or a Multiemployer Plan and which is maintained
or otherwise contributed to by any member of the ERISA Group.
"Borrower" means Union Carbide Corporation, a New
York corporation, and its successors.
"Borrower's Kuwait Completion Guarantees" means
completion guarantees by the Borrower with respect to the
Kuwait Project.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in Section
2.07(b).
"CD Loan" means a Committed Loan made or to be made
by a Bank as a CD Loan in accordance with the applicable
Notice of Committed Borrowing.
"CD Margin" has the meaning set forth in Section
2.07(b).
"CD Reference Banks" means Chemical Bank, Credit
Suisse and Morgan Guaranty Trust Company of New York and each
such other Bank as may be appointed pursuant to Section
9.06(g).
"Co-Agents" means ABN AMRO Bank N.V., Bank of
America Illinois, The Bank of New York, The Bank of Nova
Scotia, Banque Nationale de Paris, CIBC Inc., Credit Suisse
and NationsBank of North Carolina, N.A., each in its capacity
as one of the co-agents for the Banks hereunder.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof (or, in the case of an Assignee, the
portion of the transferor Bank's Commitment assigned to such
Assignee pursuant to Section 9.06(c)), in each case as such
amount may be reduced from time to time pursuant to Section
2.09 or changed as a result of an assignment pursuant to
Section 9.06(c).
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Kuwait Joint Venture" means at any
date any Kuwait Joint Venture that is a Consolidated
Subsidiary at such date.
"Consolidated Net Income" for any period means the
consolidated net income of the Borrower and its Consolidated
Subsidiaries for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared as of
such date.
"Consolidated Tangible Net Worth" means at any date
the consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries minus consolidated Intangible
Assets, all determined as of such date. For purposes of this
definition "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders'
equity) of
(i) all write-ups (other than write-ups resulting
from foreign currency translations and write-ups of
assets of a going concern business made within twelve
months after the acquisition of such business)
subsequent to June 30, 1994 in the book value of any
asset owned by the Borrower or a Consolidated
Subsidiary,
(ii) all investments of the Borrower and its
Consolidated Subsidiaries in unconsolidated
Subsidiaries, and
(iii) all goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or
developmental expenses and other intangible assets.
"Debt" of any Person means at any date, without
duplication, to the extent required in accordance with
generally accepted accounting principles to be included in the
financial statements of such Person or the footnotes thereto,
(i) all obligations of such Person for borrowed
money,
(ii) all obligations of such Person evidenced by
bonds, debentures, notes or other substantially similar
instruments containing an unconditional promise to pay
a sum certain,
(iii) all obligations of such Person for
installment purchase transactions involving the
purchase of property or services over $5,000,000 for
any particular transaction, except trade accounts
payable and expense accruals arising in the ordinary
course of business,
(iv) all obligations of such Person as lessee
which are capitalized in accordance with generally
accepted accounting principles,
(v) all non-contingent obligations of such Person
to reimburse any bank or other Person in respect of
amounts paid or to be paid under a letter of credit,
and
(vi) all obligations of others of the types
described in clauses (i) through (v) above that are
Guaranteed by such Person.
"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; provided that an event or
condition covered by clause (f) of Section 6.01 (and not
covered by any other clause of said Section) shall not
constitute a Default unless and until the Required Banks shall
have made the determination specified in such clause (f) and
the Administrative Agent shall have given the Borrower written
notice of such determination.
"Designated Subsidiary" has the meaning set forth in
Section 5.03(c).
"Documentation Agent" means Morgan Guaranty Trust
Company of New York, in its capacity as documentation agent
for the Banks hereunder, and its successors in such capacity.
"Dollar Equivalent" means in respect of any
Alternative Currency Advance the amount of Dollars obtained by
converting the outstanding amount of currency of such
Alternative Currency Advance, as specified in the then most
recent Alternative Currency Advance Report or in the report
provided pursuant to Section 2.16(b)(ii) in respect of such
Alternative Currency Advance, into Dollars at the spot rate
for the purchase of Dollars with such currency as quoted by
the Administrative Agent at its principal foreign exchange
trading operations office in New York City promptly upon
receipt of such Alternative Currency Advance Report or such
report provided pursuant to Section 2.16(b)(ii), as the case
may be.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"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 Consolidated Subsidiary" means a
Consolidated Subsidiary organized and existing under the laws
of the United States of America, any State thereof or the
District of Columbia.
"Domestic Lending Office" means, as to each Bank,
its office identified in its Administrative Questionnaire as
its Domestic Lending Office or such other office of such Bank
as such Bank may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent;
provided that any Bank may so designate separate Domestic
Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the
context may require.
"Domestic Loans" means CD Loans or Base Rate Loans
or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Effective Federal Funds Rate" means the weighted
average of the rates on overnight federal funds transactions
between members of the Federal Reserve System arranged by
federal funds brokers as published daily (or, if such day is
not a Domestic Business Day, for the immediately preceding
Domestic Business Day) by the Federal Reserve Bank of New York
in the Composite Closing Quotations for U.S. Government
Securities (or any successor quotations).
"Environmental Laws" means all applicable federal,
state, local and foreign laws, ordinances, codes, regulations,
orders and requirements relating to the protection of, or
discharge of materials into, the environment, including,
without limitation, the Resource Conservation and Recovery Act
of 1976, as amended; the Comprehensive Environmental Response,
Compensation and Liability Act; the Toxic Substance Control
Act; the Clean Water Act; the Clean Air Act; and the Safe
Drinking Water Act.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Restricted
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 Restricted Subsidiary, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Eurocurrency Reserve Ratio" has the meaning set
forth in Section 2.15.
"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 Bank,
its office or branch located at its address identified in its
Administrative Questionnaire as its Euro-Dollar Lending Office
or such other office or branch of such Bank 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 Committed Loan made or to
be made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth in
Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal
London offices of Chemical Bank, Credit Suisse and Morgan
Guaranty Trust Company of New York, and each such other Bank
as may be appointed pursuant to Section 9.06(g).
"Event of Default" has the meaning set forth in
Section 6.01.
"Excluded Working Capital Financings" means
obligations of the Borrower or any of its Consolidated
Subsidiaries (other than a Consolidated Kuwait Joint Venture),
up to an aggregate outstanding amount of $150,000,000,
incurred in connection with working capital financings.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01) or any combination of the foregoing, in each case that
are not overdue.
"Foreign Subsidiary" means a Subsidiary other than a
Subsidiary organized and existing under the laws of the United
States of America, any State thereof or the District of
Columbia.
"Guarantee" by any Person means, without
duplication, any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Debt 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
(whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise); or
(ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part);
provided that the term Guarantee shall not include:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) obligations that are not required in
accordance with generally accepted accounting
principles to be included in the financial statements
of such Person or the footnotes thereto;
(c) "unconditional purchase obligations"
(including take-or-pay contracts) as defined in and as
required to be disclosed pursuant to Statement of
Financial Accounting Standards No. 47 and the related
interpretations, as the same may be amended from time
to time, but only to the extent the aggregate amount of
all such obligations of the Borrower and its
Consolidated Subsidiaries (other than amounts reflected
on the balance sheet of the Borrower and its
Consolidated Subsidiaries) is equal to or less than 15%
of the net sales of the Borrower and its Consolidated
Subsidiaries as set forth in their Consolidated
Statement of Income, determined as of the end of the
preceding quarter for the twelve months then ending;
(d) any obligation required to be disclosed
pursuant to the Statement of Financial Accounting
Standards No. 105, Disclosure of Information about
Financial Instruments with Off-Balance-Sheet Risk and
Financial Instruments with Concentrations of Credit
Risk, issued March 1990, and the related
interpretations, as the same may be amended from time
to time (except to the extent any such obligation is
required to be reflected on the balance sheet of the
Borrower and its Consolidated Subsidiaries or to be
disclosed pursuant to Statement of Financial Accounting
Standards No. 5 and related interpretations, as the
same may be amended from time to time); or
(e) any difference between the fair market value
and the book value of any obligation that is required
to be disclosed pursuant to the Statement of Financial
Accounting Standards No. 107, Disclosures about Fair
Value of Financial Instruments, issued December 1991,
and the related interpretations, as the same may be
amended from time to time.
The term "Guarantee" used as a verb has a corresponding
meaning.
"Interest Coverage Ratio" means, with respect to the
Borrower and its Consolidated Subsidiaries, for any period,
the ratio of
(x) the sum of (i) Consolidated Net Income,
excluding any extraordinary items of gain or loss, (ii)
consolidated interest expense, (iii) consolidated
operating lease expense, (iv) consolidated provision
for income taxes and (v) Restructuring Charges (to the
extent deducted in determining the amount specified in
(i) above) that the Borrower elects (by so stating in a
certificate delivered pursuant to Section 5.01(c)) to
add back to such Consolidated Net Income; provided that
the aggregate amount of all Restructuring Charges added
back pursuant to this clause (v) shall not exceed
$100,000,000 on a cumulative basis after June 30, 1994
to
(y) the sum of (i) consolidated interest expense
and (ii) consolidated operating lease expense.
The amounts referred to in clauses (x)(ii), (x)(iii), (x)(iv),
(y)(i) and (y)(ii) of this definition shall be adjusted to
exclude the interest expense, operating lease expense and
income taxes of Consolidated Kuwait Joint Ventures, if any.
In addition, the consolidated interest expense referred to in
clauses (x)(ii) and (y)(i) of this definition, shall be
adjusted to exclude interest on Excluded Working Capital
Financings.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable Notice
of Borrowing; 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 clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Borrowing, the period commencing
on the date of such Borrowing and ending 30, 60, 90 or 180
days thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; 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; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; 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; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
such whole number of months thereafter (but not more than 12
months) as the Borrower may elect in accordance with Section
2.03; 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 clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but not
less than seven nor more than 180 days) as the Borrower may
elect in accordance with Section 2.03; 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; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
Notwithstanding the foregoing, all Interest Periods
at any one time outstanding hereunder shall end on not more
than 25 different dates, and the duration of any Interest
Period which would otherwise exceed such limitation shall be
adjusted so as to coincide with the remaining term of such
other then current Interest Period as the Borrower may specify
in the related Notice of Borrowing.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Invitation for Money Market Quotes" means an
invitation by the Auction Agent on behalf of the Borrower to
each Bank to submit Money Market Quotes offering to make Money
Market Loans in accordance with Section 2.03, substantially in
the form of Exhibit C hereto.
"Kuwait Joint Ventures" means the joint ventures to
which the Borrower and/or any of its Subsidiaries is or is to
be a party and formed or to be formed to build and operate the
Kuwait Project or to market products produced thereby.
"Kuwait Project" means the proposed petrochemical
complex in Kuwait disclosed in the Borrower's 1993 annual
report to stockholders.
"Leverage Ratio" means the ratio of (x) Adjusted
Consolidated Debt to (y) the sum of (i) Consolidated Tangible
Net Worth plus (ii) Restructuring Charges taken after June 30,
1994 up to a maximum cumulative amount of $100,000,000.
"LIBOR Auction" means a solicitation of Money Market
Quotes setting forth Money Market LIBOR Margins pursuant to
Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, 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.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination of
the foregoing.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Material Debt" means at any time Adjusted
Consolidated Debt (other than the Debt evidenced by the Notes)
and/or Excluded Working Capital Financings (to the extent that
they constitute Debt), having an aggregate principal amount
outstanding at such time equal to or exceeding $50,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$15,000,000.
"Material Subsidiaries" means at any time (the "time
of determination") one or more Subsidiaries with respect to
which any of the events specified in clause (g) or (h) of
Section 6.01 shall have occurred after the date hereof (and
not been cured before the time of determination), but only if
the assets of such Subsidiaries (calculated in each case at
the time such event occurred) exceed, in the aggregate, 1 1/2%
of the consolidated assets of the Borrower and its
Consolidated Subsidiaries at the time of determination.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d)(ii)(D).
"Money Market Absolute Rate Loan" means a loan made
or to be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office or
branch of such Bank as it may hereafter designate as its Money
Market Lending Office by notice to the Borrower and the
Administrative Agent; provided that any Bank may from time to
time by notice to the Borrower and the Administrative Agent
designate separate Money Market Lending Offices for its Money
Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan made or to be
made by a Bank pursuant to a LIBOR Auction (including such a
loan bearing interest at the Base Rate pursuant to Section
8.01).
"Money Market LIBOR Margin" has the meaning set
forth in Section 2.03(d)(ii)(C).
"Money Market Loan" means a Money Market LIBOR Loan
or a Money Market Absolute Rate Loan.
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"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.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, and "Note"
means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"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.
"Person" means an individual, a corporation, 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.
"Potential Cross-Default" means at any time an event
or condition described in Section 6.01(f) that has occurred
and is continuing at such time and that is not a Default, but
would be a Default if the determination by the Required Banks
contemplated by Section 6.01(f) had been made and notice of
such determination had been given to the Borrower.
"Pricing Schedule" means the Pricing Schedule
attached hereto.
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Reference Rate" means the rate of interest publicly
announced by Chemical Bank in New York City from time to time
as its reference rate. The Reference Rate is not intended to
be the lowest rate of interest charged by Chemical Bank in
connection with extensions of credit to borrowers.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results in
no net increase in the outstanding principal amount of
Committed Loans made by any Bank.
"Regulation D", "Regulation U" and "Regulation X"
means Regulation D, Regulation U and Regulation X,
respectively, of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Required Banks" means at any time Banks having at
least two-thirds of the aggregate amount of the Commitments,
or, if the Commitments have been terminated, holding Notes
evidencing at least two-thirds of the aggregate unpaid
principal amount of the outstanding Loans.
"Restricted Subsidiary" means at any time:
(i) any Domestic Consolidated Subsidiary with (a)
more than $20,000,000 in total assets or (b) more than
$5,000,000 in total net worth, and
(ii) any other Consolidated Subsidiary designated
by the Borrower as a Restricted Subsidiary (a) in the
certificate delivered pursuant to Section 3.01(h) or
(b) in accordance with Section 5.03, unless and until
such designated Consolidated Subsidiary becomes an
Unrestricted Subsidiary pursuant to Section 5.03.
At the Effective Date, the Restricted Subsidiaries shall be
those set forth in such certificate.
"Restructuring Charges" means all nonrecurring
after-tax charges taken after June 30, 1994 by the Borrower
and its Consolidated Subsidiaries, on a consolidated basis, to
provide for the cost of discontinuing a business, adopting a
severance program or other profit improvement program or
writing off or writing down impaired assets.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" with respect to any Person means any
corporation or other entity of which such Person directly or
indirectly owns the securities or other ownership interests
having ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions.
Unless otherwise specified, "Subsidiary" means a Subsidiary of
the Borrower.
"Termination Date" means November 3, 1999, or, if
such day 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 Termination Date shall be the next preceding Euro-Dollar
Business Day.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the present
value of all benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits
(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.
"Unrestricted Subsidiary" means any Subsidiary other
than a Restricted Subsidiary.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly
owned by the Borrower.
SECTION 1.02. Accounting Terms and Determina-
tions. 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 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 Banks; provided
that, if the Borrower notifies the Agent that the Borrower
wishes to amend any covenant in Article V to eliminate the
effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the Agent
notifies the Borrower that the Required Banks wish to amend
Article V for such purpose), then the Borrower's compliance
with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately
before the relevant change in generally accepted accounting
principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory
to the Borrower and the Required Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article II on a
single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference
to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of
Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance
therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank
severally agrees, on the terms and conditions set forth in
this Agreement (including, without limitation, Section 3.02),
to make Domestic Loans and Euro-Dollar Loans to the Borrower
pursuant to this Section from time to time in amounts such
that the aggregate principal amount of Committed Loans by such
Bank at any one time outstanding hereunder shall not exceed
the amount of its Commitment. Each Borrowing under this
Section 2.01 shall be in an aggregate principal amount of
$25,000,000 or any larger multiple of $5,000,000 (except that
any such Borrowing may be in the aggregate amount available in
accordance with Section 3.02(b) and, if less than $5,000,000,
must be a Base Rate Borrowing) and shall be made from the
several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may
borrow under this Section 2.01, repay, or to the extent
permitted by Section 2.10 or 8.03(d)(ii), prepay Loans and
reborrow at any time under this Section 2.01.
SECTION 2.02. Notice of Committed Borrowings. The
Borrower shall give the Administrative Agent notice (a "Notice
of Committed Borrowing") not later than 11:00 A.M. (New York
City time) on:
(x) the date of each Base Rate Borrowing,
(y) the Domestic Business Day next preceding the
date of each CD Borrowing and
(z) 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 Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing
are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the Borrower
may, as set forth in this Section, request the Banks to make
offers to make Money Market Loans to the Borrower. The Banks
may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower
wishes to request offers to make Money Market Loans under this
Section, it shall transmit to the Auction Agent by telex or
facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be
received no later than 11:00 A.M. (New York City time) on:
(x) the fourth Euro-Dollar Business Day prior to
the date of Borrowing proposed therein, in the case of
a LIBOR Auction or
(y) the Domestic Business Day next preceding the
date of Borrowing proposed therein, in the case of an
Absolute Rate Auction
(or, in either case, such other time or date as the Borrower
and the Auction Agent shall have mutually agreed and shall
have notified the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $25,000,000 or a larger multiple of
$5,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market LIBOR Margin or a Money
Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for
more than one Interest Period in a single Money Market Quote
Request. No Money Market Quote Request shall be given within
four Euro-Dollar Business Days (or such other number of days
as the Borrower and the Auction Agent may agree and the
Auction Agent shall have promptly notified to the Banks) of
any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Auction
Agent shall send to the Banks by telex or facsimile
transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto with respect to
such Money Market Quote Request.
(d) Submission and Contents of Money Market Quotes.
(i) Each Bank may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any
Invitation for Money Market Quotes. Each Money Market Quote
must comply with the requirements of this subsection (d) and
must be submitted to the Auction Agent by telex or facsimile
transmission at its offices specified in or pursuant to
Section 9.01 not later than:
(x) 12:00 Noon (New York City time) on the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or
(y) 9:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute
Rate Auction
(or, in either case, such other time or date as the Borrower
and the Auction Agent shall have mutually agreed, and the
Auction Agent shall have notified the Banks not later than the
date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to
be effective); provided that Money Market Quotes submitted by
the Auction Agent in the capacity of a Bank may be submitted,
and may only be submitted, if the Auction Agent notifies the
Borrower of the terms of the offer or offers contained therein
not later than:
(x) one hour prior to the deadline for the other
Banks, in the case of a LIBOR Auction or
(y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction.
Subject to Articles III and VI, any Money Market Quote so made
shall be irrevocable except with the written consent of the
Auction Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount:
(w) may be greater than or less than the
Commitment of the quoting Bank,
(x) must be $5,000,000 or a larger multiple
of $1,000,000,
(y) may not exceed the principal amount of
Money Market Loans for which offers were requested
and
(z) may be subject to an aggregate
limitation as to the principal amount of Money
Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market LIBOR Margin") offered for each
such Money Market Loan, expressed as a percentage
(rounded to the nearest 1/10,000th of 1%) to be added
to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (rounded to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers
by the quoting Bank with respect to each Interest Period
specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Auction Agent shall
promptly notify the Borrower of the terms:
(x) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) and
(y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank with respect
to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by
the Auction Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error
in such former Money Market Quote.
The Auction Agent's notice to the Borrower shall specify:
(A) the aggregate principal amount of Money
Market Loans for which offers have been received for
each Interest Period specified in the related Money
Market Quote Request,
(B) the respective principal amounts and Money
Market LIBOR Margins or Money Market Absolute Rates, as
the case may be, so offered and
(C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers
in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than:
(x) 1:30 P.M. (New York City time) on the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or
(y) 10:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute
Rate Auction
(or, in either case, such other time or date as the Borrower
and the Auction Agent shall have mutually agreed and the
Auction Agent shall have notified the Banks not later than the
date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to
be effective), the Borrower shall notify the Auction Agent of
its acceptance or non-acceptance of the offers so notified to
it pursuant to subsection (e) and the Auction Agent shall so
notify the Administrative Agent. In the case of acceptance,
such notice (a "Notice of Money Market Borrowing") shall
specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept
any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $25,000,000 or a larger multiple of
$5,000,000 and the principal amount of each Money
Market Loan with respect to such Money Market Borrowing
must be in an amount of $5,000,000 or a larger multiple
of $1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market LIBOR Margins or Money
Market Absolute Rates, as the case may be,
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement, and
(v) failure by the Borrower to notify the Auction
Agent by the time specified above shall be deemed a
rejection of all offers.
(g) Allocation by Borrower. If offers are made by
two or more Banks with the same Money Market LIBOR Margins or
Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which
such offers are accepted shall be allocated by the Borrower
among such Banks as nearly as possible in proportion to the
aggregate principal amounts of such offers (or as nearly in
proportion as shall be practicable after giving effect to the
requirement that Money Market Loans for each relevant maturity
date shall each be in a principal amount of $5,000,000 or a
multiple of $1,000,000 in excess thereof).
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time)
on the date of each Borrowing, each Bank participating therein
shall (except as provided in subsection (c) of this Section)
make the amount of its share of such Borrowing available to
the Administrative Agent for the account of the Borrower at
the office of the Administrative Agent specified in or
pursuant to Section 9.01 in funds immediately available to the
Administrative Agent. Unless the Administrative Agent
determines (or, in the case of the first Borrowing, the
Documentation Agent and the Administrative Agent determine)
that any applicable condition specified in Article III has not
been satisfied, the Administrative Agent shall make such
aggregate funds available to the Borrower by depositing as
promptly as practicable the proceeds thereof, in like funds as
received by the Administrative Agent, in the account of the
Borrower with the Administrative Agent on the date of such
Borrowing.
(c) If any Bank makes a new Committed Loan
hereunder to the Borrower on a day on which the Borrower is to
repay all or any part of an outstanding Committed Loan from
such Bank, such Bank shall apply the proceeds of its new
Committed Loan to make such repayment and only an amount equal
to the difference (if any) between the amount being borrowed
and the amount being repaid shall be made available by such
Bank to the Administrative Agent as provided in subsection
(b), or remitted by the Borrower to the Administrative Agent
as provided in Section 2.11, as the case may be.
(d) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Borrowing
that such Bank will not make available to the Administrative
Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available
to the Administrative Agent on the date of such Borrowing in
accordance with subsections (b) and (c) of this Section 2.04
and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent does, in
such circumstances, make available to the Borrower such
amount, such Bank shall within three Domestic Business Days
following such Borrowing make such share available to the
Administrative Agent, together with interest thereon for each
day from and including the date of such Borrowing that such
share was not made available, at the Effective Federal Funds
Rate. If such amount is so made available, such payment to
the Administrative Agent shall constitute such Bank's share of
such Borrowing for all purposes of this Agreement. If such
amount is not so made available to the Administrative Agent,
then the Administrative Agent shall on the third Domestic
Business Day following such Borrowing notify the Borrower of
such failure and on the fourth Domestic Business Day following
the date of such Borrowing, the Borrower shall pay to the
Administrative Agent such share, together with interest
thereon for each day that the Borrower had the use of such
share, at the Effective Federal Funds Rate. Nothing contained
in this subsection (d) shall relieve any Bank which has failed
to make available its share of any Borrowing hereunder from
its obligation to do so in accordance with the terms hereof.
(e) The failure of any Bank to make available to
the Administrative Agent its share of any Borrowing on the
date of such Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make available to the
Administrative Agent its share of such Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make
available the share of any Borrowing to be made available by
such other Bank on such date of Borrowing.
SECTION 2.05. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of
such Bank for the account of its Applicable Lending Office in
an amount equal to the aggregate unpaid principal amount of
such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Administrative Agent (to be given not later than two
Domestic Business Days prior to the first Borrowing), request
that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal
amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely
Loans of the relevant type. Each reference in this Agreement
to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Documentation Agent shall mail such Note
to such Bank. Each Bank shall record the date, amount and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and prior to any transfer of its Note may 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 the failure of any Bank
to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Notes.
Each Bank 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 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
SECTION 2.07. 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 to but
excluding the date it becomes due, at a rate per annum equal
to the Base Rate for such day. Such interest shall be payable
for each Interest Period on the last day thereof. Any overdue
principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day from and including
the date payment thereof was due to but excluding the date of
actual payment at a rate per annum equal to the sum of 1% plus
the Base Rate for such day.
(b) Subject to Section 8.01, each CD Loan shall
bear interest on the outstanding principal amount thereof, for
each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the CD Margin for such day
plus the applicable Adjusted CD Rate. Such interest shall be
payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than 90 days, at intervals
of 90 days after the first day thereof. Any overdue principal
of or interest on any CD Loan shall bear interest, payable on
demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment at
a rate per annum equal to the sum of 1% plus the Base Rate for
such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period
is the rate of interest determined by the Administrative Agent
to be the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two
or more New York certificate of deposit dealers of recognized
standing for the purchase at face value from each CD Reference
Bank of its certificates of deposit in an amount comparable to
the principal amount of the CD Loan of such CD Reference Bank
to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"Domestic 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 (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the
Federal Reserve System in New York City with deposits
exceeding $5,000,000,000 in respect of new non-personal time
deposits in Dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in
the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Section 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in
the Assessment Rate.
(c) Subject to Section 8.01, each Euro-Dollar Loan
shall bear interest on the outstanding principal amount
thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the
Euro-Dollar Margin for such day plus the applicable London
Interbank Offered Rate. 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.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in Dollars are offered to
each of the Euro-Dollar Reference Banks 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
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for
each day from and including the date payment thereof was due
to but excluding the date of actual payment, at a rate per
annum equal to the sum of 1% plus the Base Rate for such day.
(e) Subject to Section 8.01, each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at
a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market
LIBOR Borrowing were a Committed Euro-Dollar Borrowing) plus
(or minus) the Money Market LIBOR Margin quoted by the Bank
making such Loan in accordance with Section 2.03. Each Money
Market Absolute Rate Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Interest on each Money Market
Loan 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. Any overdue principal of or interest on any Money
Market Loan shall bear interest, payable on demand, for each
day from and including the date payment thereof was due to but
excluding the date of actual payment at a rate per annum equal
to the sum of 1% plus the Base Rate for such day.
(f) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The
Administrative Agent shall give prompt notice to the Borrower
and the Banks making such Loans by telex, facsimile
transmission or cable of each rate of interest so determined,
and its determination thereof shall be conclusive in the
absence of manifest error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Administrative Agent as
contemplated by this Section. If any Reference Bank 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
Bank or Banks or, if none of such quotations is available on a
timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.08. Fees.
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably in
proportion to their Commitments a commitment fee at the
Commitment Fee Rate (determined for each day in accordance
with the Pricing Schedule). Such commitment fee shall be
payable for each day on the amount by which the aggregate
amount of the Commitments exceeds the sum of:
(i) the aggregate outstanding principal amount of
the Loans plus
(ii) the Applicable Alternative Currency
Outstandings.
Such commitment fee shall accrue from and including the
Effective Date to but excluding the Termination Date (or
earlier date of termination of the Commitments in their
entirety).
(b) Facility Fee. The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably in
proportion to their Commitments a facility fee at the Facility
Fee Rate (determined for each day in accordance with the
Pricing Schedule). Such facility fee shall accrue:
(i) from and including the Effective Date to but
excluding the Termination Date (or earlier date of
termination of the Commitments in their entirety), on
the daily aggregate amount of the Commitments (whether
used or unused) and
(ii) from and including the Termination Date (or
such earlier date of termination) to but excluding the
date the Loans shall be repaid in their entirety, on
the daily aggregate outstanding principal amount of the
Loans.
(c) Payments. Accrued fees under this Section
shall be payable quarterly on each March 31, June 30,
September 30 and December 31 (in arrears) commencing on
December 31, 1994 and upon the date of termination of the
Commitments in their entirety (and, if later, in the case of
the facility fee, the date the Loans shall be repaid in their
entirety).
SECTION 2.09. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least three Domestic
Business Days' notice to the Administrative Agent,
(i) terminate the Commitments at any time, if no
Loans are outstanding at such time, or
(ii) ratably reduce from time to time, by an
aggregate amount of at least $25,000,000, the aggregate
amount of the Commitments, provided that the aggregate
amount of Commitments may not be reduced below the sum
of (x) the aggregate outstanding principal amount of
the Loans plus (y) the Applicable Alternative Currency
Outstandings (after giving effect to such reduction).
SECTION 2.10. Prepayments. (a) The Borrower may,
upon giving notice to the Administrative Agent not later than
11:00 A.M. (New York City time) on the date of prepayment,
prepay any Base Rate Borrowing (or any Money Market Borrowing
bearing interest at the Base Rate pursuant to Section 8.01) in
whole at any time, or from time to time in part in amounts
aggregating $25,000,000 or any larger multiple of $5,000,000,
by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Subject
to Section 8.03(d)(ii), each such optional prepayment shall be
applied to prepay ratably the Base Rate Loans of the several
Banks included in such Borrowing.
(b) Subject to Section 2.12, upon giving notice to
the Administrative Agent not later than 11:00 A.M. (New York
City time) on the Domestic Business Day next preceding the
date of prepayment (in the case of a CD Borrowing) or the
third Euro-Dollar Business Day before the date of prepayment
(in the case of a Euro-Dollar Borrowing), the Borrower may
prepay any CD Borrowing or Euro-Dollar Borrowing in whole at
any time, or from time to time in part in amounts aggregating
$25,000,000 or any larger multiple of $5,000,000, by paying
the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Subject to
Section 8.03(d)(ii), each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks
included in such Borrowing.
(c) Upon receipt of a notice of prepayment pursuant
to this Section, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank's
ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
(d) The Borrower may not prepay the Money Market
Loans at any time (other than Money Market Loans bearing
interest at the Base Rate pursuant to Section 8.01).
(e) On any day upon which, as a result of any
reduction of Commitments under this Agreement, the sum of (i)
the aggregate outstanding principal amount of the Loans plus
(ii) the Applicable Alternative Currency Outstandings exceeds
the aggregate amount of the Commitments, the Borrower shall
prepay such principal amount (together with accrued interest
thereon) of outstanding Loans hereunder as may be necessary so
that after such repayment such sum does not exceed such
aggregate amount of Commitments. Any such prepayment shall be
made in accordance with all applicable provisions of this
Agreement (including without limitation subsections (a), (b),
(c) and (d) of this Section 2.10).
SECTION 2.11. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than
11:00 A.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 Bank its share of each such
payment received by the Administrative Agent for the account
of the Banks. Whenever any payment of principal of, or
interest on, the Domestic Loans or of fees 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 next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the
Money Market 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.
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 Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the 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 upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment, each Bank shall
repay to the Administrative Agent forthwith on demand such
amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed
to such Bank until the date such Bank repays such amount to
the Administrative Agent, at the Effective Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed Rate
Loan (pursuant to Section 2.10, Section 2.18, Article VI,
Article VIII or otherwise) on any day other than the last day
of the Interest Period applicable thereto or if the Borrower
fails to borrow or prepay any Fixed Rate Loans after notice of
such borrowing or prepayment has been given to any Bank in
accordance with Section 2.04(a) or Section 2.10(c), the
Borrower shall reimburse each Bank on demand for any resulting
loss or expense actually incurred by it (or a Participant
which has purchased or agreed to purchase a participation in
the relevant Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from
third parties, but excluding loss of margin for the period
after any such payment or failure to borrow or prepay,
provided that such Bank shall have delivered to the Borrower a
certificate containing a computation in reasonable detail of
the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.13. Computation of Interest and Fees.
Interest based on the Reference 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),
except for interest on Alternative Currency Advances, which
shall be computed according to prevailing market practices.
SECTION 2.14. Withholding Tax Exemption. At least
five Domestic Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any
Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it
will deliver to each of the Borrower and the Administrative
Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case
that such Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of
any United States federal income taxes. Each Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver to
each of the Borrower and the Administrative Agent two
additional copies of such form (or a successor form) on or
before the date that such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the
most recent form so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each
case certifying that such Bank is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless
an event (including without limitation any change in treaty,
law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from
duly completing and delivering any such form with respect to
it and such Bank promptly advises the Borrower and the
Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States
federal income tax.
SECTION 2.15. Regulation D Compensation. (a) So
long as Regulation D shall require reserves to be maintained
against "Eurocurrency liabilities" (or against 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 Bank to
United States residents), each Bank subject to and actually
incurring such reserve requirement may require the Borrower to
pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans additional interest on the related
Euro-Dollar Loan of such Bank at a rate per annum (the
"Regulation D Rate") determined pursuant to the following
formula:
[ LIBOR ]
RDR = [ -------- ] - LIBOR
[ 1 - ERR ]
RDR = Regulation D Rate
LIBOR = The applicable London Interbank
Offered Rate
ERR = Eurocurrency Reserve Ratio
"Eurocurrency Reserve Ratio" means the applicable
reserve ratio prescribed by Regulation D (as such Regulation
shall have been amended to the first day of the related
Interest Period) for such reserve requirements (expressed as a
decimal).
Notwithstanding anything contained herein to the
contrary, the Regulation D Rate shall be adjusted
automatically on and as of the effective date of any change in
such reserve ratio.
(b) Any Bank wishing to require payment of such
additional interest:
(i) shall so notify the Borrower, in which case
such additional interest on the Euro-Dollar Loans of
such Bank shall be payable on any date interest is
payable with respect to each Euro-Dollar Loan
commencing after the giving of such notice and
(ii) shall notify the Borrower from time to time
of the amount due it under this Section;
provided that the Borrower shall not be required to make any
payment of an amount due hereunder earlier than the fifth
Euro-Dollar Business Day after receipt of the notice referred
to in clause (ii) of this Section.
SECTION 2.16. Alternative Currency Advances.
(a) Requests for Offers. From time to time the
Borrower may request any or all of the Banks to make offers
to make Alternative Currency Advances, each in a minimum
principal amount in the currency of such Alternative Currency
Advance equivalent to $1,000,000, to the Borrower; provided
that the aggregate Dollar Equivalents of all Alternative
Currency Advances outstanding at any one time shall not exceed
$300,000,000; provided further that immediately after the
making of an Alternative Currency Advance, the sum of (i) the
aggregate principal amount of the Loans plus (ii) the
Applicable Alternative Currency Outstandings will not exceed
the aggregate amount of the Commitments. Any such request
shall be transmitted directly to any such Bank at the
Euro-Dollar Lending Office of such Bank or at any other
address that the Borrower and such Bank may agree from time to
time. Each Bank may, but shall have no obligation to, make
such offers on terms and conditions as are satisfactory to
such Bank, and the Borrower may, but shall have no obligation
to, accept any such offers.
(b) Reports to Agent. (i) The Borrower shall
deliver to the Administrative Agent a report in respect of
each Alternative Currency Advance (an "Alternative Currency
Advance Report") by 12:00 Noon (New York City time) on (x) the
date on which the Borrower accepts such Alternative Currency
Advance (such report to constitute the designation of such
advance as an Alternative Currency Advance for purposes of
this Agreement), (y) the date on which any principal amount
thereof is repaid prior to the scheduled maturity date and (z)
the scheduled maturity date if payment thereof is not made on
such scheduled maturity date, specifying for such Alternative
Currency Advance:
(w) the date such advance was or will be made, on
which such amount of principal is prepaid or will be
repaid or on which payment was not made, as the case
may be;
(x) the Alternative Currency of such advance; and
(y) the principal amount of such advance or
principal prepayment or repayment or the amount not
paid (in such Alternative Currency).
On the basis of each such Alternative Currency Advance Report,
the Administrative Agent shall determine the Dollar Equivalent
of the advance then made or remaining after such principal
repayment and the Applicable Alternative Currency Outstandings
on such date after giving effect to such advance or principal
repayment and shall promptly notify the Borrower and the Banks
of such Dollar Equivalent and such Applicable Alternative
Currency Outstandings.
(ii) If the aggregate amount of Loans and
Alternative Currency Advances outstanding under this Agreement
equals or exceeds $850,000,000, at the time of each Borrowing
hereunder that is not a Refunding Borrowing, the
Administrative Agent shall determine the Dollar Equivalent of
each Alternative Currency Advance then outstanding and the
Applicable Alternative Currency Outstandings on such date,
based on such Dollar Equivalents, and shall promptly notify
the Borrower and the Banks of such Dollar Equivalents, and
such Applicable Alternative Currency Outstandings.
(c) Other Alternative Currency Borrowings. Nothing
in this Section shall restrict the Borrower's ability to
borrow in Alternative Currencies from one or more Banks or
other lenders without reporting such borrowings as Alternative
Currency Advances for purposes of this Agreement. If and to
the extent that any report designating such a borrowing as an
Alternative Currency Advance would cause the Borrower to
exceed any applicable limit set forth in Section 2.16(a) or
3.02(b) on the day such report is received by the
Administrative Agent, such designation shall be ineffective.
Except as provided in the immediately preceding sentence, a
report delivered by the Borrower pursuant to Section 2.16(b)
designating a borrowing as an Alternative Currency Advance for
purposes of this Agreement shall be effective upon receipt by
the Administrative Agent and may not thereafter be revoked by
the Borrower.
SECTION 2.17. Judgment Currency. If for the
purpose of obtaining judgment in any court it is necessary to
convert a sum due from the Borrower hereunder or under any of
the Notes in the currency expressed to be payable herein or
under the Notes (the "specified currency") into another
currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the
specified currency with such other currency at the
Administrative Agent's New York office on the Domestic
Business Day preceding that on which final judgment is given.
The obligations of the Borrower in respect of any sum due to
any Bank or the Administrative Agent hereunder or under any
Note shall, notwithstanding any judgment in a currency other
than the specified currency, be discharged only to the extent
that on the Domestic Business Day following receipt by such
Bank or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Bank or
the Administrative Agent (as the case may be) may in
accordance with normal banking procedures purchase the
specified currency with such other currency. If the amount of
the specified currency so purchased is less than the sum
originally due to such Bank or the Administrative Agent, as
the case may be, in the specified currency, the Borrower
agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or the Administrative Agent,
as the case may be, against such loss, and if the amount of
the specified currency so purchased exceeds:
(a) the sum originally due to such Bank or the
Administrative Agent, as the case may be, and
(b) any amounts shared with other Banks as a
result of allocations of such excess as a
disproportionate payment to such Bank under Section
9.04,
such Bank or the Administrative Agent, as the case may be,
agrees to remit such excess to the Borrower.
SECTION 2.18. Replacement of this Credit
Facility. If the Borrower wishes at any time to replace the
credit facility provided under this Agreement with another
credit facility, the Borrower may give prior notice of the
termination of the Commitments hereunder as required by
Section 2.09 and prior notice of the prepayment of any
Committed Loans outstanding hereunder as required by Section
2.10, in each case on a conditional basis (i.e., conditioned
upon such other credit facility becoming available to the
Borrower), provided that the Borrower gives definitive notice
of such termination of the Commitments and prepayment of
outstanding Committed Loans (if any) to the Administrative
Agent before 11:00 A.M. (New York City time) on the date of
such termination and prepayment (if any) and complies with the
applicable requirements of Sections 2.09 and 2.10 in all other
respects.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall
become effective on the date that each of the following
conditions shall have been satisfied (or waived in accordance
with Section 9.05):
(a) receipt by the Documentation Agent of
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 Documentation Agent in form satisfactory
to it of telegraphic, telex, facsimile or other written
confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Documentation Agent for the
account of each Bank of one executed Note dated on or
before the Effective Date complying with the provisions
of Section 2.05;
(c) receipt by the Documentation Agent of an
opinion of Phyllis Savage, counsel to the Borrower,
covering the matters described in Exhibit E hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request;
(d) receipt by the Documentation Agent of an
opinion of Davis Polk & Wardwell, special counsel for
the Agents, substantially in the form of Exhibit F
hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required
Banks may reasonably request;
(e) receipt by the Documentation Agent of a
certificate signed by any of the Chairman, any Vice
Chairman, the President, any Vice President, the
Treasurer, such Treasurer's designee, or any Associate
Treasurer or Assistant Treasurer of the Borrower, dated
the Effective Date, to the effect set forth in clauses
(c), (d) and (e) of Section 3.02;
(f) receipt by the Documentation Agent of a copy
of the Borrower's certificate of incorporation,
certified by the Secretary of State of New York;
(g) receipt by the Documentation Agent of a
certificate on behalf of the Borrower signed by the
Secretary or Assistant Secretary of the Borrower or
such other authorized officer of the Borrower
satisfactory to the Documentation Agent certifying
(i) that the Borrower's certificate of
incorporation has not been amended since May 2,
1994,
(ii) that no proceeding for the dissolution
or liquidation of the Borrower exists,
(iii) that the copy of the by-laws of the
Borrower attached to the certificate is true,
correct and complete,
(iv) that the copies of the resolutions of
the Borrower's board of directors attached to the
certificate are true and correct and in full force
and effect and
(v) as to the incumbency of each officer of
the Borrower who signed this Agreement and the
Notes on behalf of the Borrower;
(h) receipt by the Documentation Agent of a
certificate listing the Restricted Subsidiaries as of
the Effective Date;
(i) the commitments of the banks under the
$850,000,000 Credit Agreement dated as of April 15,
1992 among Union Carbide Corporation, Union Carbide
Chemicals and Plastics Company Inc., the banks listed
on the signature pages thereof, Morgan Guaranty Trust
Company of New York, Chemical Bank and Credit Suisse,
as Co-Agents, and Chemical Bank, as Administrative
Agent and as Auction Agent, shall have been terminated
and all amounts due and payable under such Agreement
shall have been paid; and
(j) receipt by the Documentation Agent of all
documents that the Documentation Agent may reasonably
request relating to the existence of the Borrower, the
corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant
hereto, all in form and substance satisfactory to the
Documentation Agent;
provided that this Agreement shall not become effective or be
binding on any party hereto unless all of the foregoing
conditions are satisfied not later than November 20, 1994. The
Documentation Agent shall promptly notify the Borrower and the
Banks of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligation of any
Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a
Notice of Borrowing as required by Section 2.02 or
2.03, as the case may be;
(b) immediately after such Borrowing, the sum of
(i) the aggregate outstanding principal amount of the
Loans plus (ii) the Applicable Alternative Currency
Outstandings will not exceed the aggregate amount of
the Commitments;
(c) immediately after such Borrowing, no Default
shall have occurred and be continuing;
(d) none of the principal financial officer, the
principal accounting officer or the Treasurer of the
Borrower shall be aware of any Potential Cross-Default
that will exist after giving effect to such Borrowing
and was not disclosed to the Banks at least two
Domestic Business Days before the date of such
Borrowing;
(e) if such Borrowing is not a Refunding
Borrowing, the fact that the representations and
warranties of the Borrower contained in this Agreement
shall be true on and as of the date of such Borrowing;
and
(f) if such Borrowing is a Refunding Borrowing,
the fact that the representations and warranties of the
Borrower contained in this Agreement (except the
representations and warranties set forth in
Sections 4.04(c) and 4.07 as to any material adverse
change which has theretofore been disclosed in writing
by the Borrower to the Banks and in Section 4.05) shall
be true on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (b), (c)
and (d) and either clause (e) or (f), as the case may be, of
this Section, and each Notice of Borrowing shall be deemed to
be a confirmation by the Borrower to such effect.
ARTICLE IV
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 the State of New York,
and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and
performance by the Borrower of this Agreement and the Notes
are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or regulation
or of the certificate of incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of
its Subsidiaries or result in or permit the termination or
modification of any 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.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower and
the Notes, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of
the Borrower.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of December 31, 1993 and
the related consolidated statements of income and cash flows
for the fiscal year then ended, reported on by KPMG Peat
Marwick, set forth in the Borrower's 1993 annual report to
stockholders, copies of which have been delivered to each of
the Banks, fairly present, in conformity with generally
accepted accounting principles, 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 June 30, 1994
and the related unaudited consolidated statements of income
and cash flows for the six months then ended, copies of which
have been delivered to each of the Banks, fairly present, in
conformity with generally accepted accounting principles
applied on a basis consistent with the consolidated financial
statements referred to in subsection (a) of this Section, 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 six
month period (subject to normal year-end adjustments).
(c) Since June 30, 1994 there has been no change in
the business, financial position, results of operations or
prospects of the Borrower and its Consolidated Subsidiaries,
which could materially adversely affect the present or
prospective ability of the Borrower to perform its obligations
under this Agreement or any Note or which in any manner draws
into question the validity or enforceability of this Agreement
or any Note.
SECTION 4.05. Litigation. There is no action, suit
or proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, 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 possibility of an adverse decision which could
materially adversely affect the present or prospective ability
of the Borrower to perform its obligations under this
Agreement or any Note or which in any manner draws into
question the validity of this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. 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 in all
material respects with the currently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan.
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 in respect of any
Benefit Arrangement, or made any amendment to any Plan
or Benefit Arrangement, 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 and aggregate withdrawal
liabilities not in excess of $5,000,000 at any one time
outstanding.
SECTION 4.07. Environmental Matters. In the
ordinary course of its business, the Borrower conducts reviews
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, related United States environmental protection
operating expenses, which include operating costs of pollution
control facilities and certain environmental accruals and
administrative expenses, and capital expenditures for the
current fiscal year and related amounts projected for capital
expenditures up to five years subsequent to such current
fiscal year, expressed in then-current dollar amounts). On
the basis of this review, the Borrower has reasonably
concluded that Environmental Laws are unlikely to have an
effect on the business, financial condition, results of
operations or prospects of the Borrower and its Consolidated
Subsidiaries during the term of this Agreement, which could
materially adversely affect the present or prospective ability
of the Borrower to perform its obligations under this
Agreement or any Note.
SECTION 4.08. Restricted Subsidiaries. Each
corporate Restricted Subsidiary 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 material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
SECTION 4.09. Not an Investment Company. The
Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
SECTION 4.10. Disclosure. None of the material
furnished to the Agents and the Banks in connection herewith
(excluding financial projections and estimates of future
results) contains, or contained at the time so furnished, any
untrue statement of a material fact or omits, or omitted at
the time so furnished, to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. All
financial projections and estimates of future results included
in such material represented the Borrower's good faith
estimates, based on assumptions which the Borrower considered
reasonable, as of the date thereof (it being understood that
the Borrower does not represent or warrant that such
projections and future results will in fact be realized or
that such assumptions included all possible assumptions).
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has
any Commitment hereunder or any amount payable under any Note
remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks and the Administrative Agent:
(a) as promptly as practicable and in any event
within 120 days after the end of each fiscal year of
the Borrower, 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 cash flows for such fiscal
year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported
on in accordance with generally accepted accounting
principles (and in a manner acceptable to the SEC) by
KPMG Peat Marwick or other independent public
accountants of nationally recognized standing;
(b) as promptly as practicable and in any event
within 60 days after the end of each of the first three
quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter
and comparative financial information as of the end of
the previous fiscal year, the related consolidated
statement of income for such quarter and the related
consolidated statements of income and cash flows for
the portion of the Borrower's fiscal year ended at the
end of such quarter, setting forth in each case in
comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and
consistency by the principal financial officer, the
principal accounting officer or the Treasurer of the
Borrower or a person designated in writing by any of
the foregoing persons, and if such financial statements
are filed with the SEC, all reported on in conformity
with the financial reporting requirements of the SEC;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, a certificate of the principal financial
officer, the principal accounting officer or the
Treasurer of the Borrower, or a person designated in
writing by any of the foregoing persons
(i) setting forth in reasonable detail the
calculations required to establish whether the
Borrower was in compliance with any applicable
requirements of Sections 5.05, 5.07, 5.08 and 5.09
on the date of such financial statements,
(ii) stating whether the Borrower was in
compliance with the requirements of Sections 5.02
through 5.04, inclusive, on the date of such
financial statements, and
(iii) stating whether any Default or Potential
Cross-Default exists on the date of such
certificate and, if any Default or Potential
Cross-Default then exists, setting forth the
details thereof and the action which the Borrower
is taking or proposes to take with respect
thereto;
(d) simultaneously with the delivery of each set
of financial statements referred to in clause (a)
above, a statement of the firm of independent public
accountants which reported on such statements whether
anything has come to their attention to cause them to
believe that any Default or Potential Cross-Default
existed on the date of such statements;
(e) within five days after any officer of the
Borrower obtains knowledge of any Default or Potential
Cross-Default, if such Default or Potential Cross-
Default is then continuing, a certificate of the
principal financial officer, the principal accounting
officer or the Treasurer of the Borrower setting forth
the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
public shareholders of the Borrower generally, copies
of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon 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) which the Borrower shall have
filed with the SEC;
(h) if and when 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 in excess of $5,000,000,
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
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
in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement 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 principal financial officer, the
principal accounting officer or the Treasurer of the
Borrower setting forth details as to such occurrence
and action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to
take;
(i) promptly after the Borrower is notified by
any rating agency referred to in the Pricing Schedule
of any actual change in any rating referred to in the
Pricing Schedule, written notice of such change; and
(j) from time to time such additional information
regarding the financial position or business of the
Borrower and its Subsidiaries as the Documentation Agent or
the Administrative Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each of its
Subsidiaries to keep, all property useful and necessary in its
respective business in good working order and condition,
ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each
of its Subsidiaries to maintain, insurance policies on its
assets at coverage levels that are at least as high as the
coverage levels that are usually insured against in the same
general area by companies of established repute engaged in the
same or a similar business as the Borrower or such Subsidiary,
as the case may be; and, upon request of the Documentation
Agent, will promptly furnish to the Documentation Agent for
distribution to the Banks information presented in reasonable
detail as to the insurance so carried.
SECTION 5.03. Restricted Subsidiaries.
(a) The Borrower will notify the Administrative
Agent, each time that the Borrower delivers financial
statements pursuant to Section 5.01(a) or (b), whether or not
the total assets of the Borrower and all Restricted
Subsidiaries (excluding any loans or other extensions of
credit, other than receivables related to trade transactions,
from any Restricted Subsidiary to any Unrestricted Subsidiary)
were equal to at least 60% of the total assets of the Borrower
and its Consolidated Subsidiaries as of the date of such
financial statements (the "Restricted Subsidiary Asset Test").
(b) If the total assets of the Borrower and all
Restricted Subsidiaries as so reported did not meet the
Restricted Subsidiary Asset Test as of such date, the Borrower
will, on the date such financial statements are delivered to
the Administrative Agent, designate as Restricted Subsidiaries
one or more additional Consolidated Subsidiaries which were
theretofore Unrestricted Subsidiaries having sufficient assets
as of the date of such financial statements so that the
Restricted Subsidiary Asset Test as of such date will be met.
(c) Each Consolidated Subsidiary which is a
Restricted Subsidiary by reason of clause (ii) of the
definition of "Restricted Subsidiary" (a "Designated
Subsidiary") shall be a Restricted Subsidiary from the time of
such designation until (subject to Section 5.03(d)) the
Borrower subsequently notifies the Administrative Agent,
concurrently with the delivery of financial statements
pursuant to Section 5.01(a) or (b), that it is no longer
necessary to include such Designated Subsidiary as a
Restricted Subsidiary to meet the Restricted Subsidiary Asset
Test (measured as of the date of such financial statements),
at which time such Designated Subsidiary shall become an
Unrestricted Subsidiary.
(d) The Borrower may from time to time substitute
one or more
(i) Domestic Consolidated Subsidiaries of the
Borrower having (x) total assets of $20,000,000 or less
and (y) total net worth of $5,000,000 or less or
(ii) Foreign Consolidated Subsidiaries
which (in either case) are Unrestricted Subsidiaries for one
or more Designated Subsidiaries, provided the Restricted
Subsidiary Asset Test (measured as of the date of the most
recent financial statements delivered pursuant to Section
5.01(a) or (b)) continues to be met, upon which substitution
such theretofore Designated Subsidiaries shall become
Unrestricted Subsidiaries.
SECTION 5.04. Negative Pledge. The Borrower will
not, and will not permit any of its Restricted Subsidiaries
to, create, assume or suffer to exist any Lien securing Debt
on any asset now owned or hereafter acquired by it, except:
(a) any Lien existing on the date of this
Agreement securing Debt outstanding on the date of this
Agreement in an aggregate principal amount not
exceeding $50,000,000;
(b) any Lien existing on any asset of any
corporation at the time such corporation becomes a
Restricted 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 such asset, provided that such
Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any improvements constructed on
any property of the Borrower or any Restricted
Subsidiary and any theretofore unimproved real property
on which such improvements are located securing Debt
incurred for the purpose of financing all or any part
of the cost of constructing such improvements, provided
that such Lien attaches to such improvements within 90
days after the later of (1) completion of construction
of such improvements and (2) commencement of full
operation of such improvements;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Restricted
Subsidiary and not created in contemplation of such
acquisition;
(f) Liens on property of the Borrower or a
Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency
or instrumentality or political subdivision of the
United States of America or any State thereof, or any
other government or department, agency, instrumentality
or political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any
contract or statute or to secure any Debt incurred for
the purpose of financing all or any part of the
purchase price or the cost of construction of the
property subject to such Liens;
(g) 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, but only to the extent that such Debt is
not increased and is not secured by any additional
assets;
(h) Liens securing Debt permitted to be secured
under Section 5.05(a)(i); and
(i) Liens not otherwise permitted by the
foregoing clauses of this Section securing Debt in an
aggregate principal amount at any time outstanding not
to exceed $200,000,000.
SECTION 5.05. Limitation on Debt of Subsidiaries.
(a) The Borrower shall not permit any of its Restricted
Subsidiaries to create, incur, assume or suffer to exist any
Debt, except:
(i) any Debt owing to the Borrower or another
Subsidiary, provided that any such Debt owing to the
Borrower is made or issued solely on a senior basis,
and provided further that any such Debt owing to a
Subsidiary is made or issued solely on a senior,
unsecured basis;
(ii) Debt of a Designated Subsidiary existing at
the time such Subsidiary is designated as a Restricted
Subsidiary;
(iii) Excluded Working Capital Financings; and
(iv) (A) unsecured Debt not otherwise permitted by
the foregoing clauses (i), (ii) and (iii) of this
Section, in an aggregate principal amount at any time
outstanding not to exceed $200,000,000 and (B) Debt
secured by Liens permitted by Section 5.04.
(b) The Borrower shall not permit any of its
Unrestricted Subsidiaries that are Consolidated Subsidiaries
or any of their respective Subsidiaries that are Consolidated
Subsidiaries to create, incur, assume or suffer to exist any
Debt owing to a Person other than the Borrower or a Subsidiary
(including Debt referred to in clause (ii) of subsection (a)
of this Section) if the aggregate outstanding principal amount
of all such Debt (except Excluded Working Capital Financings)
of all such Subsidiaries would at any time exceed
$800,000,000. For purposes of this subsection (b), a
Consolidated Kuwait Joint Venture shall be deemed not to be a
Subsidiary or a Consolidated Subsidiary.
SECTION 5.06. Consolidations, Mergers and Sales of
Assets. The Borrower will not merge or consolidate with or
into any other Person or sell, lease, transfer or otherwise
dispose of all or substantially all of its assets, property or
business in any single transaction or series of related
transactions, unless
(i) in the case of any such merger or
consolidation, the Borrower shall be the continuing
corporation, or, in the case of any such sale, lease,
transfer or other disposition, the transferee or
transferees shall be one or more Wholly-Owned
Consolidated Subsidiaries organized and existing under
the laws of the United States of America or any State
thereof, each of which shall expressly assume the due
and punctual performance and observance of all of the
covenants and agreements of the Borrower contained in
this Agreement and the Notes, and
(ii) immediately after giving effect to such
merger or consolidation, or such sale, lease, transfer
or other disposition, no Default or Potential Cross-
Default shall have occurred and be continuing.
SECTION 5.07. Minimum Consolidated Tangible Net
Worth. Consolidated Tangible Net Worth will not at any time
be less than the sum of
(i) $1,050,000,000 less Restructuring Charges
taken after June 30, 1994 up to a maximum cumulative
amount of $100,000,000,
(ii) 50% of Consolidated Net Income (calculated
before giving effect to any Restructuring Charges
deducted pursuant to clause (i) above), for each fiscal
quarter beginning after June 30, 1994 for which such
Consolidated Net Income (as so calculated) is positive,
and
(iii) 50% of the proceeds from the sale after June
30, 1994 of capital stock that is not redeemable at the
option of the holder thereof and that the issuer
thereof is not required to repurchase at the option of
the holder thereof;
provided that proceeds from the sale of capital stock issued
pursuant to any employee benefit plan, stock option plan or
dividend reinvestment plan shall be excluded from any
determination under this Section 5.07.
SECTION 5.08. Leverage Ratio. The Leverage Ratio
will not (i) at any time prior to June 30, 1995 exceed 1.65
to 1 and (ii) at any time on or after June 30, 1995 exceed
1.5 to 1.
SECTION 5.09. Interest Coverage Ratio. At the end
of any fiscal quarter ending after June 30, 1994, the Interest
Coverage Ratio for the period of four consecutive fiscal
quarters then ended will not be less than 2.0 to 1.
SECTION 5.10. Use of Proceeds. The proceeds of the
Loans made under this Agreement will be used by the Borrower
for working capital and general corporate purposes of the
Borrower and its Subsidiaries. None of such proceeds will be
used, directly or indirectly, in violation of Regulation X or
for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of
Regulation U.
SECTION 5.11. Payments from Domestic Restricted
Subsidiaries. The Borrower shall not, and shall not permit
any Domestic Consolidated Subsidiary that is a Restricted
Subsidiary to, enter into any agreement which expressly
prohibits or limits in any manner the ability of such
Restricted Subsidiary, directly or indirectly, to declare or
pay any dividend or other distribution, loan, advance or other
payment to the Borrower.
ARTICLE VI
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 to pay when due any
principal of any Loan or, within five days, any
interest on any Loan, any fees or any other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform
any covenant contained in Sections 5.04 to 5.11,
inclusive;
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above)
for 20 days after written notice thereof has been given
to the Borrower by the Administrative Agent at the
request of any Bank;
(d) any representation, warranty, certification
or statement made (or deemed made) by the Borrower in
this Agreement or in any certificate, financial
statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to
make any payment in respect of Material Debt when due
or within any applicable grace period or any event or
condition shall occur which results in the acceleration
of the maturity of Material Debt;
(f) any event or condition (except a failure to
pay or other event or condition covered by clause (e)
above) shall occur which enables (or, with the giving
of notice or lapse of time or both, would enable) the
holder or holders of Material Debt or any Person or
Persons acting on its or their behalf to accelerate the
maturity thereof or terminate its or their commitment
in respect thereof and such event or condition shall
not have been cured within two Domestic Business Days
after both (i) the Required Banks shall have determined
that such event or condition, if not cured within two
Domestic Business Days, should be an Event of Default
under this clause (f) and (ii) the Administrative Agent
shall have given the Borrower written notice of such
determination;
(g) the Borrower or Material Subsidiaries shall:
(i) commence a voluntary case or other
proceeding seeking (1) 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 (2) the
appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any
substantial part of its property;
(ii) 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;
(iii) make a general assignment for the
benefit of creditors;
(iv) fail generally to pay its debts as they
become due; or
(v) take any corporate action to authorize
any of the foregoing;
(h) (i) an involuntary case or other proceeding
shall be commenced against the Borrower or Material
Subsidiaries seeking (1) 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 (2) 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
(ii) an order for relief shall be entered
against the Borrower or Material Subsidiaries under the
federal bankruptcy laws as now or hereafter in effect;
(i) (i) any member of the ERISA Group shall fail
to pay when due an amount or amounts aggregating in
excess of $50,000,000 which it shall have become liable
to pay under Title IV of ERISA;
(ii) notice of intent to terminate a Material
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;
(iii) 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 Material Plan;
(iv) a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
(v) 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 in excess of $50,000,000;
(j) a judgment or order for the payment of money
in excess of $50,000,000 shall be rendered against the
Borrower or any Subsidiary and shall remain unsatisfied
for a period of ten consecutive days after it becomes
due and payable, during which ten-day period execution
shall not be effectively stayed or otherwise
effectively precluded; or
(k) any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated
by the SEC under said Act) of 30% or more of the
outstanding shares of common stock of the Borrower; or,
during any period of twelve consecutive calendar
months, individuals who were directors of the Borrower
on the first day of such period shall cease to
constitute a majority of the board of directors of the
Borrower;
then, and in every such event, the Administrative Agent shall:
(i) if requested by Banks 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 Banks holding Notes
evidencing more than 50% in aggregate outstanding
principal amount of the Loans, by notice to the
Borrower declare the Notes (together with accrued
interest thereon) to be, and the Notes (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 in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the
Borrower, without any notice to the Borrower or any other act
by the Administrative Agent or the Banks, the Commitments
shall thereupon automatically terminate and the Notes
(together with accrued interest thereon) shall automatically
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 Administra-
tive Agent shall give notice under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
ARTICLE VII
THE AGENTS AND CO-AGENTS
SECTION 7.01. Appointment and Authorization. Each
Bank irrevocably appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to such
Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Morgan
Guaranty Trust Company of New York and Chemical Bank shall
each have the same rights and powers under this Agreement as
any other Bank and may exercise or refrain from exercising the
same as though it were not an Agent, and Morgan Guaranty Trust
Company of New York and Chemical Bank and their respective
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 hereunder.
SECTION 7.03. Action by Agents. The obligations of
each Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing, no
Agent shall be required to take any action with respect to any
Default or Potential Cross-Default, except as expressly
provided in Article VI.
SECTION 7.04. Consultation with Experts. Any Agent
may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. Neither any
Agent nor any of its directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither any Agent nor any
of its directors, officers, agents or employees 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 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 III, except, in the case of the
Documentation Agent or the Administrative Agent, receipt of
items required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or
any other instrument or writing furnished in connection
herewith. An Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex or similar
writing) believed by it to be genuine or to be signed by the
proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify each
Agent (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 Agent's gross negligence or willful
misconduct) that such Agent may suffer or incur in connection
with this Agreement or any action taken or omitted by such
Agent hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon any Agent, any Co-Agent or any other Bank, 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 Bank also acknowledges that it will,
independently and without reliance upon any Agent, any Co-
Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking any
action under this Agreement.
SECTION 7.08. Successor Agents. (a) Any Agent may
resign at any time by giving 30 days' prior written notice
thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to
appoint a successor Agent which shall be a Bank. If no
successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30
days after the retiring Agent gives notice of resignation,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a Bank. Upon the acceptance
of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken
by it while it was an Agent.
(b) If at any time any Agent shall have assigned
its rights and obligations in respect of all of its Commitment
hereunder, such Agent shall resign as Agent in accordance with
the procedures set forth in subsection (a) of this
Section 7.08.
SECTION 7.09. Distribution of Information. The
Administrative Agent and the Documentation Agent each agree to
mail or deliver to each of the Banks so requesting photocopies
of documents, certificates, financial statements and other
information received by it from the Borrower pursuant to the
express provisions of this Agreement and not otherwise
distributed to the Banks.
SECTION 7.10. Co-Agents. The Co-Agents, in their
capacities as such, shall have no duties or obligations of any
kind under this Agreement.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any Fixed Rate Borrowing (other than Money
Market Absolute Rate Borrowings):
(a) the Administrative Agent is advised by the
Reference Banks that deposits in Dollars (in the
applicable amounts) are not being offered to the
Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of a Committed Borrowing, Banks
having 50% or more of the aggregate amount of the
Commitments advise the Administrative Agent that the
Adjusted CD Rate or the London Interbank Offered Rate,
as the case may be, as determined by the Administrative
Agent will not adequately and fairly reflect the cost
to such Banks of funding their CD Loans or Euro-Dollar
Loans, as the case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof
to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make CD Loans or Euro-Dollar
Loans, as the case may be, shall be suspended. Unless the
Borrower notifies the Administrative Agent at least two
Domestic Business Days before the date of any Fixed Rate
Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing
shall instead be made as a Base Rate Borrowing and (ii) if
such Fixed Rate Borrowing is a Money Market LIBOR Borrowing,
the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to
but excluding the last day of the Interest Period applicable
thereto at the Base Rate for such day.
SECTION 8.02. Illegality. (a) If, after the date
of this Agreement, the adoption of, 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 charged with the
interpretation or administration thereof, or compliance by any
Bank (or its Euro-Dollar Lending Office) with any request or
directive (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 Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall promptly so notify the
Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank
to make Euro-Dollar Loans shall be suspended.
(b) Before giving any notice to the Administrative
Agent pursuant to this Section, such Bank 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 Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully
continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan,
together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the
other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If, after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case of
any Money Market Loan, the adoption of, 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 charged with the
interpretation or administration thereof, or compliance by any
Bank (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other charge with
respect to its Fixed Rate Loans, its Note to the extent
evidencing Fixed Rate Loans or its obligation to make
Fixed Rate Loans, or shall change the basis of taxation
of payments to any Bank (or its Applicable Lending
Office) of the principal of or interest on its Fixed
Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes
in the rate of tax on the overall net income of such
Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement
(including, without limitation, any such requirement
imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any CD
Loan any such requirement included in an applicable
Domestic Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended
by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending
Office) or on the United States market for certificates
of deposit or the London interbank market any other
condition affecting its Fixed Rate Loans, its Note to
the extent evidencing Fixed Rate Loans or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost
to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be
material, then, within 15 days after demand by such Bank (with
a copy to the Administrative Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate
such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after
the date hereof, the adoption of, or any change in, any
applicable law, rule or regulation regarding capital adequacy,
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 has the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations hereunder
to a level below that which such Bank (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 Bank to be
material, then from time to time, within 15 days after demand
by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank (or its Parent), without
duplication, for such reduction.
(c) Each Bank 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 Bank to compensation pursuant to this 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 Bank,
be otherwise disadvantageous to such Bank. A certificate of
any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it
hereunder, accompanied by a computation thereof in reasonable
detail, shall be conclusive in the absence of manifest error.
In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) If any Bank has demanded compensation under
this Section, the Borrower:
(i) shall have the right, with the assistance of
the Documentation Agent and the Administrative Agent
and upon notification to such Bank, to require such
Bank to transfer, pursuant to an Assignment and
Assumption Agreement in substantially the form of
Exhibit H hereto, its Note and Commitment to a
substitute bank or banks satisfactory to the Borrower
and such Agents (which may be one or more of the Banks)
or
(ii) may elect to terminate this Agreement as to
such Bank, and in connection therewith to prepay any
Base Rate Loan made pursuant to Section 8.04, provided
that the Borrower (1) notifies the Administrative Agent
(which will forthwith notify such Bank) of such
election at least three Euro-Dollar Business Days
before any date fixed for such a prepayment, and (2)
either (x) repays all of such Bank's outstanding Loans
at the end of the respective Interest Periods
applicable thereto or as otherwise required by Section
8.02 or (y) subject to Section 2.12, prepays all of
such Bank's outstanding Loans (other than Money Market
Loans). Upon receipt by the Administrative Agent of
such notice, the Commitment of such Bank shall
terminate.
SECTION 8.04. Base Rate Loans Substituted for
Affected Fixed Rate Loans. Subject to Sections 2.10 and 2.12,
if (i) the obligation of any Bank to make Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03(a) and the
Borrower shall, by at least five Euro-Dollar Business Days'
prior notice to such Bank through the Administrative Agent,
have elected that the provisions of this Section shall apply
to such Bank, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the case
may be, shall be made instead as Base Rate Loans (on
which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of
the other Banks), and
(b) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid, all
payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests,
instructions and other communications to any party hereunder
shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such
party: (w) in the case of the Borrower or any Agent, at its
address, facsimile number or telex number (if any) set forth
on the signature pages hereof, (x) in the case of any Bank, at
its address, facsimile number or telex number (if any) set
forth in its Administrative Questionnaire, (y) in the case of
any party hereto, such other address, facsimile number or
telex 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 (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or
(iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to
the Administrative Agent under Article II or Article VIII and
notices to the Borrower under Section 6.01(c) or 6.01(f) shall
not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by
any Agent or any Bank in 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.
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification. (a) The Borrower shall pay (i) all
out-of-pocket expenses of the Agents, including reasonable
fees and disbursements of one special counsel (Davis Polk &
Wardwell) for the Agents, in connection with the preparation
of this Agreement, any waiver or consent hereunder or any
amendment hereof or any actual or alleged Default or Potential
Cross-Default hereunder and (ii) if an Event of Default
occurs, all out-of-pocket expenses incurred by the Agents or
any Bank, including fees and disbursements of counsel
(including the cost of staff counsel where used, without
duplication of work, in lieu of separate special counsel), in
connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom. The Borrower
shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery
of this Agreement or the Notes.
(b) The Borrower shall indemnify each Bank and its
directors, officers and employees for, and hold each Bank and
its directors, officers and employees harmless from and
against (i) any and all damages, losses and other liabilities
of any kind, including, without limitation, judgments and
costs of settlement, and (ii) any and all reasonable
out-of-pocket costs and expenses of any kind, including,
without limitation, fees and disbursements of counsel
(including the cost of staff counsel where used, without
duplication of work, in lieu of separate special counsel) and
any other costs of defense, including, without limitation,
costs of discovery and investigation, for such Bank and its
officers and directors (all of which shall be paid or
reimbursed by the Borrower monthly), suffered or incurred in
connection with any investigative, administrative or judicial
proceeding (whether or not such Bank shall be designated a
party thereto) relating to or arising out of this Agreement or
any actual or proposed use of proceeds of Loans hereunder;
provided that no such Bank, director, officer or employee
shall have any right to be indemnified or held harmless
hereunder for its own gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction.
The Borrower shall indemnify and hold harmless each Agent, in
its capacity as Agent hereunder, to the same extent that the
Borrower indemnifies and holds harmless each Bank pursuant to
this Section.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise (except pursuant to Section
8.03(d)(ii)), receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note
held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of principal
and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the
other Banks, and such other adjustments shall be made, as may
be required so that all such payments of principal and
interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that if at any time
thereafter, the Bank that originally received such payment is
required to repay (whether to the Borrower or to any other
Person) all or any portion of such payment, each other Bank
shall promptly (and in any event within five Domestic Business
Days of its receipt of notification from such Bank requiring
such repayment) repay to such Bank the portion of such payment
previously received by it under this Section 9.04, together
with such amount (if any) as is equal to the appropriate
portion of any interest (in respect of the period during which
such other Bank held such amount) such Bank shall have been
obligated to pay when repaying such amount as aforesaid, in
exchange for such participation in the Note of such other Bank
as was previously purchased by such Bank; provided further
that nothing in this Section shall impair the right of any
Bank 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 under the Notes.
SECTION 9.05. Amendments and Waivers. 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 Banks (and, if
the rights or duties of any Agent are affected thereby, by
such Agent); provided that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the
Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest
on any Loan or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for the termination of any
Commitment, (iv) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other
provision of this Agreement or (v) amend or waive the
provisions of this Section 9.05. The exercise by the Borrower
of its right to decrease the Commitments pursuant to Section
2.09 or to decrease the Commitment of a Bank pursuant to
Section 8.03(d) shall not be deemed to require the consent of
any party to this Agreement.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of its
Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower and the Agents, such Bank shall remain
responsible for the performance of its obligations hereunder,
and the Borrower and the Agents shall continue to deal solely
and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement and such Bank's
Note. Any agreement pursuant to which any Bank may grant such
a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder and under the Notes
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 Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i)
(only to the extent such modification, amendment or waiver
would decrease the Commitment of such Bank), (ii) or (iii) of
Section 9.05 or to any modification, amendment or waiver that
would have the effect of increasing the amount of a
Participant's participation in such Bank's Commitment, in any
such case without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating
interest, subject to subsection (f) below. An assignment or
other transfer which is not permitted by subsection (c) or (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 (b).
(c) Any Bank may at any time assign to one or more
banks or other institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit H
hereto executed by such Assignee and such transferor Bank,
with the subscribed consent of the Borrower in consultation
with the Administrative Agent and with the subscribed
acknowledgment of the Administrative Agent; provided that,
(i) if an Assignee is (x) any Person which
controls, is controlled by, or is under common control
with, or is otherwise substantially affiliated with
such transferor Bank or (y) another Bank, no such
consent shall be required,
(ii) such assignment may, but need not, include
rights of the transferor Bank in respect of outstanding
Money Market Loans and
(iii) if the transferor Bank is assigning a
proportionate part (but not all) of its rights and
obligations under this Agreement and the Notes to an
Assignee that was not a Bank party to this Agreement
prior to such assignment, the amount so assigned
(disregarding Money Market Loans) shall be not less
than the amount that would be held at such time
(disregarding Money Market Loans) by a Bank having an
initial Commitment of $10,000,000.
Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Bank of an amount equal to
the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank 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 (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that,
if required, new Notes are issued to the Assignee and the
transferor Bank and the original Note is cancelled, and the
Administrative Agent shall notify the other Agents of such
assignment. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an
administrative fee of $2,000 for processing such assignment.
If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall, prior
to the first date on which interest or fees are payable
hereunder for its account, deliver to the Borrower and the
Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income
taxes in accordance with Section 2.14.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) The Agents and the Borrower may, for all
purposes of this Agreement, treat any Bank as the holder of
any Note drawn to its order (and owner of the Loans evidenced
thereby) until written notice of assignment or other transfer
shall have been received by them.
(f) No Assignee, Participant or other transferee of
any Bank's rights shall be entitled to receive any greater
payment under Section 8.03 than such Bank 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 or 8.03
requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time when
the circumstances giving rise to such greater payment did not
exist.
(g) If any Reference Bank assigns its Note to an
unaffiliated institution, the Administrative Agent shall, with
the consent of the Borrower and the Required Banks, appoint
another Bank to act as a Reference Bank hereunder.
SECTION 9.07. Collateral. Each of the Banks
represents to the Agents and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL. THIS AGREEMENT AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. 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. EACH OF THE
BORROWER, THE AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.09. Counterparts; Integration. 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 constitutes the entire agreement and
understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral or written,
relating to the subject matter hereof.
SECTION 9.10. Confidentiality. In addition to any
confidentiality requirements under applicable law, each of the
Agents and each of the Banks (each a "Bank Party" and,
collectively, the "Bank Parties") agrees that, through and
including the later of (a) the Termination Date and (b) a date
three years from the relevant Bank Party's receipt of the
relevant information, it will take normal and reasonable
precautions so that
(i) all information expressly designated by its
provider as confidential provided to any of them by the
Borrower, any Person on behalf of the Borrower, or by
any other Bank Party on behalf of the Borrower, in
connection with this Agreement or the transactions
contemplated hereby will be held and treated by each
such Bank Party and its respective directors,
Affiliates, officers, agents and employees in
confidence and
(ii) neither it nor any of its respective
directors, Affiliates, officers, agents or employees
shall, without the prior written consent of the
Borrower, use any such information for any purpose or
in any manner other than pursuant to the terms of and
for the purposes contemplated by this Agreement.
Notwithstanding the immediately preceding sentence, any Bank
Party may disclose any such information or portions thereof
(a) that is or becomes publicly available other
than through a breach by such Bank Party of its
obligations hereunder;
(b) that is also provided to such Bank Party by a
Person other than the Borrower not in violation, to the
actual knowledge of such Bank Party, of any duty of
confidentiality;
(c) at the request of any bank regulatory
authority or examiner;
(d) pursuant to subpoena or other court process;
(e) when required by applicable law;
(f) at the written request or the express
direction of any other authorized government agency;
(g) to its independent auditors, counsel and
other professional advisors in connection with their
provision of professional services to such Bank Party;
or
(h) to any (i) Participant or (ii) prospective
Participant or prospective Bank, if such Participant,
prospective Participant or prospective Bank (which
prospective Bank is promptly identified to the
Borrower), prior to any such disclosure, agrees in
writing to keep such information confidential to the
same extent required of the Bank Parties hereunder;
provided that any Bank Party's failure to comply with the
provisions of this Section 9.10 shall not affect the
obligations of the Borrower hereunder.
SECTION 9.11. Severability. Any provision of this
Agreement that is prohibited, unenforceable or not authorized
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other
jurisdiction.
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.
UNION CARBIDE CORPORATION
By /s/ Thomas D. Jones
Title: Vice President and Treasurer
39 Old Ridgebury Road
Danbury, CT 06817-0001
Telecopy number: (203) 794-5135
Attention: Vice President and Treasurer
Commitments
$59,166,666.67 ABN AMRO BANK N.V.,
NEW YORK BRANCH
as a Co-Agent and a Bank
By /s/ David A. Mandell
Title:Vice President
By /s/ David W. Stack
Title: Corporate Banking Officer
$59,166,666.67 BANK OF AMERICA ILLINOIS,
as a Co-Agent and a Bank
By /s/ Nancy McGaw
Title: Vice President
$59,166,666.67 THE BANK OF NEW YORK,
as a Co-Agent and a Bank
By /s/ Nancy McEwen
Title: Vice President
$59,166,666.67 THE BANK OF NOVA SCOTIA,
as a Co-Agent and a Bank
By /s/ Terry K. Fryett
Title: Vice President
Commitments
$59,166,666.67 BANQUE NATIONALE DE PARIS,
as a Co-Agent and a Bank
By /s/ Sophie Revillard Kaufman
Title: Vice President
By /s/ Eric Vigne
Title: Senior Vice President
$59,166,666.67 CIBC INC.,
as a Co-Agent and a Bank
By /s/ Julia C. Collins
Title: Vice President
$59,166,666.66 CHEMICAL BANK,
as a Bank
By /s/ William Ewing IV
Title: Managing Director
$59,166,666.67 CREDIT SUISSE,
as a Co-Agent and a Bank
By /s/ Kristina Catlin
Title: Associate
By /s/ Lynn Allegaert
Title: Member of Senior
Management
Commitments
$59,166,666.67 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as a Bank
By /s/ James S. Finch
Title: Vice President
$59,166,666.67 NATIONSBANK OF NORTH CAROLINA, N.A.,
as a Co-Agent and a Bank
By /s/ Margaret K. Vandenberg
Title: Senior Vice President
$37,500,000.00 BANCA COMMERCIALE ITALIANA
By /s/ Edward Bermant
Title: First Vice President
By /s/ Julia M. Welch
Title: Assistant Vice President
$37,500,000.00 BARCLAYS BANK PLC
By /s/ J. Onischuk
Title: Associate Director
$37,500,000.00 FUJI BANK LIMITED
By /s/ Yoshihiko Shiotsugu
Title: Vice President & Manager
Commitments
$37,500,000.00 ROYAL BANK OF CANADA
By /s/ Peter D. Steffen
Title: Senior Manager
$37,500,000.00 THE SUMITOMO BANK, LIMITED
By /s/ Yoshinori Kawamura
Title: Joint General Manager
$37,500,000.00 SWISS BANK CORPORATION
By /s/ Colin T. Taylor
Title: Director Merchant Banking
By /s/ Paul D. Stendig
Title: Associate Director
Merchant Banking
$37,500,000.00 TORONTO DOMINION (NEW YORK), INC.
By /s/ Jano Mott
Title: Vice President
$20,833,333.33 COMMERZBANK AG
NEW YORK BRANCH
By /s/ Werner Niemeyer
Title: Vice President
By /s/ Michael D. Hintz
Title: Vice President
Commitments
$20,833,333.33 GENERALE BANK
By /s/ Alain Verschueren
Title: Senior Vice President
Corporate
By /s/ Hans U. Neukomm
Title: General Manager
$20,833,333.33 THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By /s/ Jeffry S. Dykes
Title: Vice President
$20,833,333.3 INSTITUTO BANCARIO SAN PAOLO DI
TORINO, S.P.A.
By /s/ William J. DeAngelo
Title: First Vice President
By /s/ Robert S. Wurster
Title: First Vice President
$20,833,333.3 MELLON BANK, N.A.
By /s/ James S. Adelsheim
Title: Vice President
$20,833,333.33 NATIONAL BANK OF KUWAIT
By /s/ Phillip M, Johnson
Title: Executive Manager
By /s/ George Y. Nasra
Title: General Manager
Commitments
$20,833,333.33 SOCIETE GENERALE
By /s/ Philippe de Rozieres
Title: Vice President
_________________
Total Commitments:
$1,000,000,000.00
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
By /s/ James S. Finch
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: James Finch
Telex number: 177615
Telecopy number: (212) 648-5014
CHEMICAL BANK, as Administrative Agent
By /s/ William Ewing IV
Title: Managing Director
270 Park Avenue
New York, New York 10017-2070
Attention: Terry Kennon
Telecopy number: (212) 270-7138
CHEMICAL BANK, as Auction Agent
By /s/ William Ewing IV
Title: Managing Director
270 Park Avenue
New York, New York 10017-2070
Attention: Terry Kennon
Telecopy number: (212) 270-7138
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin", "Commitment
Fee Rate" and "Facility Fee Rate" for any day are the
respective rates per annum set forth below in the applicable
row under the column corresponding to the Pricing Level that
applies on such day:
Status Level I Level II Level III Level IV Level V
Euro-Dollar
Margin 0.2250% 0.2750% 0.3250% 0.4000% 0.4500%
CD Margin 0.3500% 0.4000% 0.4500% 0.5250% 0.5750%
Commitment
Fee Rate 0.0200% 0.0150% 0.0250% 0.0500% 0.0625%
Facility
Fee Rate 0.1000% 0.1250% 0.1250% 0.1750% 0.2500%
For purposes of this Schedule, the following terms
have the following meanings:
"Level I Pricing" applies on any day if on such day
the Borrower's long-term debt securities (whether or not
outstanding at such date) are rated either A- or higher (or
the equivalent) by S&P or A3 or higher (or the equivalent) by
Moody's.
"Level II Pricing" applies on any day if on such day
(i) the Borrower's long-term debt securities (whether or not
outstanding at such date) are rated either BBB+ (or the
equivalent) by S&P or Baa1 (or the equivalent) by Moody's and
(ii) Level I Pricing does not apply.
"Level III Pricing" applies on any day if on such
day (i) the Borrower's long-term debt securities (whether or
not outstanding at such date) are rated either BBB (or the
equivalent) by S&P or Baa2 (or the equivalent) by Moody's and
(ii) no higher Pricing Level applies.
"Level IV Pricing" applies on any day if on such day
the Borrower's long-term debt securities (whether or not
outstanding at such date) are rated BBB- (or the equivalent)
by S&P and Baa3 (or the equivalent) by Moody's.
"Level V Pricing" applies on any day if no higher
Pricing Level applies on such day.
"Moody's" means Moody's Investors Service, Inc., a
Delaware corporation.
"Pricing Level" refers to the determination of which
of Level I Pricing, Level II Pricing, Level III Pricing, Level
IV Pricing or Level V Pricing applies on any day. Level I
Pricing is the highest Pricing Level and Level V Pricing the
lowest.
"S&P" means Standard & Poor's Ratings Group.
The ratings to be utilized for purposes of this Pricing
Schedule are those assigned to the senior unsecured long-term
debt securities of the Borrower without third-party credit
enhancement, and any rating assigned to any other debt
security of the Borrower shall be disregarded. The rating in
effect on any day is the rating in effect at the close of
business on such day.
If either Moody's or S&P is merged or consolidated with
another Person or if the ratings business of Moody's or S&P is
acquired by another Person (the entity conducting such ratings
business after any such merger, consolidation or acquisition
being herein called the "Successor"), the ratings provided by
the Successor shall be used for purposes of this Pricing
Schedule unless and until the Borrower and the Required Banks
shall, by notice to the Administrative Agent, designate a
different rating agency to provide such ratings, in which case
the ratings provided by the rating agency so designated shall
thereafter replace those provided by the Successor for
purposes of this Pricing Schedule.
EXHIBIT A
NOTE
New York, New York
, 199_
For value received, UNION CARBIDE CORPORATION, a New
York corporation (the "Borrower"), promises to pay to the
order of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred
to below on the last day of the Interest Period relating to
such Loan. 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 Chemical Bank,
270 Park Avenue, New York, New York 10017-2070.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer
hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding
may be endorsed by the Bank 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 Bank to make any
such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the
$1,000,000,000 Credit Agreement dated as of November 4, 1994
among the Borrower, the Banks party thereto, the Co-Agents
party thereto, Morgan Guaranty Trust Company of New York, as
Documentation Agent, and Chemical Bank, as Administrative
Agent and Auction Agent (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.
UNION CARBIDE CORPORATION
By__________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Chemical Bank (the "Auction Agent")
From: Union Carbide Corporation
Re: $1,000,000,000 Credit Agreement dated as of
November 4, 1994 (as the same may be amended from
time to time, the "Credit Agreement") among the
Borrower, the Banks party thereto, the Co-Agents
party thereto and the Agents (as defined in the
Credit Agreement)
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
$
Such Money Market Quotes should offer a Money Market
[LIBOR Margin] [Absolute Rate]. [The applicable base rate is
the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to them
in the Credit Agreement.
UNION CARBIDE CORPORATION
By________________________
Name:
Title:
* Amount must be $25,000,000 or a larger multiple of
$5,000,000.
** Not less than one month (LIBOR Auction) or not less than 7
days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Union Carbide Corporation (the
"Borrower")
Pursuant to Section 2.03 of the $1,000,000,000
Credit Agreement dated as of November 4, 1994 (as the same may
be amended from time to time, the "Credit Agreement") among
the Borrower, the Banks parties thereto, the Co-Agents party
thereto, the undersigned, as Auction Agent, and the other
Agents (as defined therein), we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the
Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market
[LIBOR Margin] [Absolute Rate]. [The applicable base rate is
the London Interbank Offered Rate.]
Please respond to this invitation by no later than
[12:00 Noon] [9:30 A.M.] (New York City time) on [date].
Terms used herein have the meanings assigned to them
in the Credit Agreement.
CHEMICAL BANK
By____________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
CHEMICAL BANK,
as Auction Agent
[Address]
Attention:
Re: Money Market Quote to
Union Carbide Corporation (the "Borrower")
In response to your invitation on behalf of the
Borrower dated __________ we hereby make the following Money
Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________1
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount2 Period3 [LIBOR Margin4] [Absolute Rate5]
$
$
[Provided, that the aggregate principal amount of Money Market
Loans for which the above offers may be accepted shall not
exceed $____________.]2
__________
1 As specified in the related Invitation.
2 Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the $1,000,000,000 Credit Agreement
dated as of November 4, 1994 (as the same may be amended from
time to time, the "Credit Agreement") among the Borrower, the
Banks party thereto, the Co-Agents party thereto, yourselves,
as Auction Agent, and the other Agents (as defined therein),
irrevocably obligates us to make the Money Market Loan(s) for
which any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to them
in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
3 [Not less than one month and not more than 12 months] [Not
less than seven days and not more than 180 days], as specified
in the related Invitation. No more than five bids are
permitted for each Interest Period.
4 Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000th of 1%) and
specify whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest
1/10,000th of 1%).
EXHIBIT E
OPINION OF
COUNSEL FOR THE
BORROWER
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I have acted as counsel to Union Carbide Corporation
(the "Borrower") in connection with the $1,000,000,000 Credit
Agreement dated as of November 4, 1994 (the "Credit
Agreement") among the Borrower, the Banks party thereto, the
Co-Agents party thereto, Morgan Guaranty Trust Company of New
York, as Documentation Agent, and Chemical Bank, as
Administrative Agent and Auction Agent, and I am rendering
this opinion pursuant to Section 3.01(c) of the Credit
Agreement. Capitalized terms used herein without definition
have the same meanings as in the Credit Agreement.
I have examined originals or copies, certified or
otherwise identified to my satisfaction as being true copies,
of the Credit Agreement, the Notes, certain information and
documents provided to me by responsible officers or employees
of the Borrower and such other documents, certificates and
corporate or other records as I have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In my examination I have assumed the genuineness of
all signatures (other than signatures on behalf of the
Borrower), the authenticity of all documents submitted to me
as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies
and the authenticity of the originals of such copies.
No opinion is expressed herein as to any matters
involving or governed by the laws of any jurisdiction other
than the laws of the State of New York, the laws of the State
of Connecticut and the federal laws of the United States of
America. Without limiting the foregoing, I express no opinion
as to the effect (if any) of any law of any jurisdiction
(except the States of New York and Connecticut) in which any
Bank is located which limits the rate of interest that such
Bank may charge. I have investigated such questions of law
and investigated such questions of fact for the purpose of
rendering the opinions expressed herein as I have deemed
necessary or appropriate.
On the basis of and subject to the foregoing, and to
the qualifications set forth below, I am of the opinion that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of New York and is duly
qualified as a foreign corporation to do business and
in good standing under the laws of the State of
Connecticut.
2. The Borrower has the corporate power and
corporate authority to enter into the Credit Agreement
and the Notes and to consummate the transactions
provided for therein.
3. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes and the
consummation by the Borrower of the transactions
provided for therein have been duly authorized by all
requisite corporate action on the part of the Borrower.
4. The Credit Agreement and the Notes have been
duly executed and delivered by the Borrower and are
valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with
their respective terms, except as (i) limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws now or hereafter in effect relating to or
limiting creditors' rights generally, (ii) limited by
equitable principles of general applicability and the
discretion of the court before which any proceeding
thereafter may be brought in applying such principles
and (iii) the enforceability of indemnification against
securities law liabilities may be limited by applicable
federal and state securities laws and general
principles of public policy. Additionally, I express
no opinion as to the validity of the provisions of
Section 9.08 of the Agreement providing for a waiver of
trial by jury.
5. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes will not
(i) constitute a violation of any law or regulation of
the State of New York or Connecticut or the United
States of America which is binding on the Borrower,
(ii) violate the certificate of incorporation or
by-laws of the Borrower or (iii) result in a breach of,
or constitute a default under, or require any consent
under, any indenture or other agreement or instrument
known to me (such agreements being listed in Schedule 1
hereto) evidencing or governing indebtedness for
borrowed money of the Borrower.
6. No consent or approval of, or action by or
filing with, any court or administrative or
governmental body which has not been obtained, taken or
made is required under the laws of the State of New
York or Connecticut or the United States of America for
the Borrower to execute and deliver the Credit
Agreement and the Notes and to consummate the
transactions provided for therein.
7. To the best of my knowledge, there is no
action, suit or proceeding pending or threatened
against or affecting the Borrower or any of its
Restricted 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 materially adversely affect the present or
prospective ability of the Borrower to perform its
obligations under the Credit Agreement or any Note or
which draws into question the validity of the Credit
Agreement or the Notes.
In giving the opinions set forth in paragraphs 1 and
2 above, I have relied upon telegraphic or oral confirmations
as to the existence and good standing of the Borrower.
This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by
you for any other purpose or relied upon by any other Person
(except for deliveries required in accordance with applicable
law) without my prior written consent.
Very truly yours,
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENTS
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Documentation Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the
$1,000,000,000 Credit Agreement (the "Credit Agreement") dated
as of November 4, 1994 among Union Carbide Corporation, a New
York corporation (the "Borrower"), the Banks party thereto,
the Co-Agents party thereto, Morgan Guaranty Trust Company of
New York, as Documentation Agent, and Chemical Bank, as
Administrative Agent and Auction Agent, and have acted as
special counsel for the Agents for the purpose of rendering
this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used
herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within the
Borrower's corporate powers and have been duly authorized by
all necessary corporate action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and the Notes constitute
valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as limited by
(i) bankruptcy, insolvency or other laws affecting creditors'
rights generally and (ii) equitable principles of general
applicability.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the State
of New York and the federal laws of the United States of
America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank
is located which limits the rate of interest that such Bank
may charge or collect.
This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by
you for any other purpose or relied upon by any other person
(except for deliveries required in accordance with applicable
law) without our prior written consent.
Very truly yours,
EXHIBIT G
ADMINISTRATIVE QUESTIONNAIRE
______________________________________________________________
Please provide the following details:
I. Information to be included in the Credit Agreement:
(A) BANK NAME:
_________________________________________________
(B) DOMESTIC LENDING OFFICE NAME AND ADDRESS:
_________________________________________________
_________________________________________________
_________________________________________________
TELEX NUMBER/ANSWERBACK:
_________________________________________________
TELECOPIER/FAX NUMBER:
_________________________________________________
(C) EURODOLLAR LENDING OFFICE NAME AND ADDRESS
_________________________________________________
_________________________________________________
_________________________________________________
TELEX NUMBER/ANSWERBACK:
__________________________________________________
TELECOPIER/FAX NUMBER:
__________________________________________________
(D) MONEY MARKET LENDING OFFICE:
__________________________________________________
__________________________________________________
__________________________________________________
TELEX NUMBER/ANSWERBACK:
__________________________________________________
TELECOPIER/FAX NUMBER:
__________________________________________________
II. Information for the administration of the facility:
(A) Where execution copies should be sent:
NAME:
_________________________________________________
ADDRESS:
_________________________________________________
_________________________________________________
_________________________________________________
(B) Where conformed copies should be sent:
NAME:
_________________________________________________
ADDRESS:
_________________________________________________
_________________________________________________
_________________________________________________
(C) FOR CREDIT MATTERS:
CONTACT NAMES/DEPT.:
_________________________________________________
TELEPHONE NUMBER:
_________________________________________________
TELEX NUMBER/ANSWERBACK:
_________________________________________________
TELECOPIER/FAX NUMBER:
_________________________________________________
(D) FOR ADMINISTRATIVE/OPERATIONS MATTERS:
CONTACT NAMES/DEPT.:
_________________________________________________
TELEPHONE NUMBER:
_________________________________________________
TELEX NUMBER/ANSWERBACK:
_________________________________________________
TELECOPIER/FAX NUMBER:
_________________________________________________
(E) FOR MONEY MARKET LOANS:
PRIMARY CONTACT NAME/DEPT.:
_________________________________________________
TELEPHONE NUMBER:
_________________________________________________
TELEX NUMBER/ANSWERBACK:
_________________________________________________
TELECOPIER/FAX NUMBER:
_________________________________________________
SECONDARY CONTACT NAME/DEPT.:
_________________________________________________
TELEPHONE NUMBER:
_________________________________________________
TELEX NUMBER/ANSWERBACK:
_________________________________________________
TELECOPIER/FAX NUMBER:
_________________________________________________
(F) PAYMENT INSTRUCTIONS (Please specify where funds,
i.e. interest, commitment fees, repayment of loans,
should be wired):
________________________________________________
________________________________________________
________________________________________________
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
UNION CARBIDE CORPORATION (the "Borrower")* and CHEMICAL BANK,
as the Administrative Agent (the "Administrative Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the $1,000,000,000 Credit
Agreement dated as of November 4, 1994 among the Borrower, the
Assignor and the other Banks party thereto, as Banks, the Co-
Agents party thereto, the Administrative Agent and the other
Agents (as defined therein) (as the same may be amended from
time to time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Committed Loans to the
Borrower in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed 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 a portion of its Commitment thereunder
in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding
Committed Loans, and the Assignee proposes to accept
assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
* If the Borrower's consent to this assignment is not
required by Section 9.06(c) of the Credit Agreement,
references to the Borrower as a party hereto and Section 4
hereof should be deleted.
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
Committed Loans made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, the Borrower and the Administrative
Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall,
as of the date hereof, succeed to the rights and be obligated
to perform the obligations of a Bank under the Credit
Agreement with a Commitment in an amount equal to the Assigned
Amount, and (ii) the Commitment of the Assignor shall, as of
the date hereof, be reduced by a like amount and the Assignor
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 an amount equal to $_________.** It is
understood that commitment and/or facility fees accrued to the
date hereof are for the account of the Assignor and such fees
accruing from and including the date hereof with respect to
the Assigned Amount are for the account of the Assignee. Each
of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for
** Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by the
Assignee, net of any portion of any upfront fee to be paid by
the Assignor to the Assignee. It may be preferable in an
appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
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 shall promptly pay the same
to such other party.
SECTION 4. Consent of the Borrower. This Agreement
is conditioned upon the consent of the Borrower pursuant to
Section 9.06(c) of the Credit Agreement. The execution of
this Agreement by the Borrower is evidence of this consent.
Pursuant to Section 9.06(c) the Borrower agrees to execute and
deliver Notes payable to the order of the Assignee (and, if
necessary, to the Assignor) to evidence the assignment and
assumption provided for herein.
SECTION 5. Non-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 the Borrower, or the
validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance
on the Assignor, any other Bank, any Co-Agent or any Agent,
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 Borrower.
SECTION 6. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
SECTION 7. 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.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By __________________________________
Name:
Title:
[ASSIGNEE]
By __________________________________
Name:
Title:
UNION CARBIDE CORPORATION
By __________________________________
Name:
Title:
Acknowledged this ____ day of ____
by Chemical Bank, as Administra-
tive Agent
By________________________________
Name:
Title