EXHIBIT 4.1
CONFORMED COPY
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OCCIDENTAL PETROLEUM CORPORATION
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FIVE-YEAR CREDIT AGREEMENT
Dated as of January 4, 2001
$1,000,000,000
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CHASE SECURITIES INC.
BANC OF AMERICA SECURITIES, LLC
as Co-Lead Arrangers,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
BANK OF AMERICA, N.A.
ABN AMRO BANK N.V.,
as Co-Documentation Agents,
and
THE BANK OF NOVA SCOTIA,
as Administrative Agent
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[CS&M Ref. # 6701-156]
[NYCorp;1203895.1]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions.............................................. 2
Accumulated Funding Deficiency........................... 2
Addendum................................................. 2
Administrative Agent..................................... 2
Administrative Questionnaire............................. 2
Affected Bank............................................ 2
Agents................................................... 2
Agreement................................................ 2
Allocable Share.......................................... 2
Alternate Base Rate...................................... 3
Alternate Base Rate Loan................................. 4
Applicable Facility Fee Percentage....................... 4
Applicable Margin........................................ 5
Assenting Bank........................................... 6
Assessment Rate.......................................... 6
Assignment and Acceptance................................ 6
Bank and Banks........................................... 6
Bank Funding Default..................................... 6
Base CD Rate............................................. 6
Board.................................................... 6
Borrowing................................................ 7
Borrowing Date........................................... 7
Business Day............................................. 7
Calendar Quarter......................................... 7
Capital Adequacy Change.................................. 7
Capital Adequacy Rule.................................... 7
Capital Securities....................................... 7
Certificate of Deposit Loan.............................. 7
Certificate of Deposit Rate.............................. 8
Code..................................................... 8
Co-Documentation Agents.................................. 8
Company.................................................. 8
Competitive Bid.......................................... 8
Competitive Bid Banks.................................... 8
Competitive Bid Rate..................................... 8
Competitive Bid Request.................................. 9
Competitive Borrowing.................................... 9
Competitive Loan......................................... 9
Competitive Notes and Competitive Note................... 9
Confidential Information................................. 9
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Consolidated Adjusted Tangible Net Worth................. 9
Consolidated Debt........................................ 9
Consolidated Funded Debt................................. 9
Consolidated Secured Debt................................ 9
Consolidated Short-Term Borrowings....................... 10
Consolidated Subsidiary.................................. 10
Dollars and "$".......................................... 10
Domestic Loans and Domestic Loan......................... 10
Effective Date........................................... 10
Eligible Assignee........................................ 10
Employee Benefit Plan.................................... 10
ERISA.................................................... 10
Eurodollar Loan.......................................... 10
Eurodollar Rate.......................................... 10
Event of Default......................................... 11
Excepted Subsidiary...................................... 11
Existing Credit Agreement................................ 11
Facility Fee............................................. 11
Fixed Rate Loan.......................................... 11
Funded Debt.............................................. 11
Increased Cost Change.................................... 12
Indebtedness............................................. 12
Indemnified Liabilities.................................. 13
Indemnitees and Indemnitee............................... 13
Index Debt............................................... 13
Interest Payment Date.................................... 13
Interest Period.......................................... 13
Interest Rate............................................ 14
Lien..................................................... 14
Loans and Loan........................................... 14
Managing Agents.......................................... 14
Margin................................................... 14
Maturity Date............................................ 14
Moody's.................................................. 15
Multiemployer Plan....................................... 15
Note..................................................... 15
Officers' Certificate.................................... 15
Participants and Participant............................. 15
PBGC..................................................... 15
Person................................................... 15
Plan..................................................... 15
Plan Administrator....................................... 15
Plan Sponsor............................................. 15
Principal Subsidiaries and Principal Subsidiary.......... 15
Prohibited Transaction................................... 16
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Proportional Share....................................... 16
Reference Banks and Reference Bank....................... 16
Refinancing Loan......................................... 16
Register................................................. 17
Regulation D............................................. 17
Regulation U............................................. 17
Regulation X............................................. 17
Related Person........................................... 17
Replacement Lender....................................... 17
Reportable Event......................................... 17
Required Banks........................................... 17
Revolving Credit Borrowing............................... 17
Revolving Credit Borrowing Request....................... 17
Revolving Credit Commitment.............................. 18
Revolving Credit Commitments............................. 18
Revolving Credit Loan.................................... 18
Revolving Credit Notes and Revolving Credit Note......... 18
Secured Debt............................................. 18
Short-Term Borrowing..................................... 18
Specified Subsidiary..................................... 19
S&P...................................................... 19
Statutory Reserves....................................... 19
Subsidiary............................................... 19
Syndication Agent........................................ 19
Tangible Net Worth....................................... 19
Taxes.................................................... 20
Term Federal Funds Loan.................................. 20
Term Federal Funds Rate.................................. 20
Total Commitment......................................... 20
Transferee............................................... 20
Unmatured Event of Default............................... 20
Voting Securities........................................ 20
SECTION 1.02. Accounting Terms......................................... 20
ARTICLE II
LOAN PROVISIONS
SECTION 2.01. Revolving Credit Commitments; Procedure for
Requests.............................................. 21
SECTION 2.02. Competitive Loans; Procedure for Requests................ 22
SECTION 2.03. [Intentionally deleted]
SECTION 2.04. [Intentionally deleted]
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SECTION 2.05. General Terms Relating to the Loans...................... 25
SECTION 2.06. Notes.................................................... 27
SECTION 2.07. Refinancings............................................. 28
SECTION 2.08. Facility Fee............................................. 28
SECTION 2.09. Reserve Requirements; Change in Circumstances............ 28
SECTION 2.10. Pro Rata Treatment....................................... 35
SECTION 2.11. Payments................................................. 35
SECTION 2.12. Payments on Business Days................................ 35
SECTION 2.13. Net Payments............................................. 35
SECTION 2.14. Failed and Credit-Impaired Banks......................... 39
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. Interest on Loans........................................ 41
SECTION 3.02. Interest on Overdue Amounts.............................. 42
SECTION 3.03. Inability to Determine Certificate of Deposit Rate,
Term Federal Funds Rate or Eurodollar Rate............ 43
SECTION 3.04. Indemnity................................................ 45
SECTION 3.05. Rate Determination Conclusive............................ 45
ARTICLE IV
REDUCTION OR TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS AND PREPAYMENTS
SECTION 4.01. Reduction or Termination of the Total Commitment......... 46
SECTION 4.02. Prepayments.............................................. 46
SECTION 4.03. Required Termination of the Revolving Credit
Commitments and Prepayment............................ 47
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Company............ 50
(a) Company's Organization; Corporate Power.................. 50
(b) Domestic Specified Subsidiaries; Organization;
Corporate Power....................................... 50
(c) Company's Corporate Authority; No Conflict............... 50
(d) Valid and Binding Obligations of the Company............. 51
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(e) Company's Financial Condition............................ 51
(f) Litigation with Respect to the Company or Its
Subsidiaries.......................................... 52
(g) Regulatory Approvals with Respect to This
Agreement............................................. 52
(h) ERISA.................................................... 53
(i) Investment Company Act................................... 53
(j) Public Utility Holding Company Act....................... 53
(k) Regulation U; Regulation X............................... 53
(l) Company's Tax Returns and Tax Liability.................. 53
(m) Environmental and Public and Employee Health and
Safety Matters........................................ 54
(n) True and Complete Disclosure............................. 54
ARTICLE VI
COVENANTS
SECTION 6.01 Affirmative Covenants of the Company..................... 55
(a) Reports, Certificates and Other Information.............. 55
(i) Interim Reports................................... 55
(ii) Annual Reports.................................... 55
(iii) Officers' Certificates............................ 56
(iv) Accountants' Certificates......................... 56
(v) Reports to SEC and to Stockholders................ 56
(vi) Officers' Certificates as to Status of Excepted
Subsidiaries...................................... 57
(vii) Officers' Certificates as to Status of Principal
Subsidiaries...................................... 57
(viii) Notice of Default................................. 57
(ix) Other Information................................. 57
(b) Taxes.................................................... 57
(c) Preservation of Corporate Existence, etc................. 57
(d) Inspections; Discussions................................. 58
(e) Books and Records........................................ 58
(f) Maintenance of Properties................................ 58
(g) Maintenance of Insurance................................. 58
(h) Consolidated Adjusted Tangible Net Worth................. 59
(i) Compliance with Laws, etc................................ 59
(j) Delivery of Certain Documentation with Respect
to Plans.............................................. 59
(k) Contributions to Plans................................... 60
(l) Use of Proceeds.......................................... 60
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SECTION 6.02. Negative Covenants of the Company........................ 60
(a) Mergers, Consolidations, Sales........................... 60
(b) Restriction on Secured Debt.............................. 61
(c) Restriction on Consolidated Debt......................... 61
(d) Restriction on Dividends from Principal Subsidiaries..... 61
(e) Change in Control........................................ 61
ARTICLE VII
CONDITIONS OF CREDIT
SECTION 7.01. Conditions to Effectiveness of Commitments............... 62
SECTION 7.02. Conditions Precedent to All Loans........................ 64
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default........................................ 64
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS AND THE BANKS
SECTION 9.01. Appointment and Powers of the Administrative
Agent and the Syndication Agent....................... 67
SECTION 9.02. Exculpatory Provisions................................... 67
SECTION 9.03. Reliance by Administrative Agent and the
Syndication Agent..................................... 68
SECTION 9.04. Notice of Default........................................ 68
SECTION 9.05. Indemnification.......................................... 69
SECTION 9.06. Nonreliance on the Agents, the Managing Agents and
Other Banks........................................... 69
SECTION 9.07. The Agents and the Managing Agents in Their
Individual Capacities................................. 70
SECTION 9.08. Excess Payments.......................................... 70
SECTION 9.09. Obligations Several...................................... 70
SECTION 9.10. Resignation by any Agent or Managing Agent.............. 71
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. No Waiver; Modifications in Writing...................... 71
SECTION 10.02. Confidentiality.......................................... 72
SECTION 10.03. Notices, etc............................................. 73
SECTION 10.04. Costs, Expenses and Taxes................................ 73
SECTION 10.05. Confirmations............................................ 74
SECTION 10.06. Successors and Assigns; Participations................... 75
SECTION 10.07. Indemnification.......................................... 79
SECTION 10.08. Reference Banks.......................................... 80
SECTION 10.09. Headings................................................. 81
SECTION 10.10. Circumstances Requiring Consultation..................... 81
SECTION 10.11. Execution in Counterparts................................ 82
SECTION 10.12. Governing Law............................................ 82
SECTION 10.13. Consent to Jurisdiction and Service of Process;
Waiver of Jury Trial.................................. 82
SECTION 10.14. Severability of Provisions............................... 83
SECTION 10.15. Waiver of Certain Provisions Under the Existing
Credit Agreement...................................... 83
SECTION 10.16. Procedures Relating to Addendum.......................... 83
SECTION 10.17. Maximum Interest......................................... 84
SECTION 10.18. Special Termination Provision............................ 84
SCHEDULES
I Revolving Credit Commitments
II Addresses, Telecopier and Telephone Numbers
EXHIBITS
A-1 Form of Competitive Note
A-2 Form of Revolving Credit Note
B Form of Competitive Bid Request
C Form of Notice of Competitive Bid Request
D Form of Competitive Bid
E Form of Revolving Credit Borrowing Request
F Form of Section 7.01(c) Certificate
G Form of Assignment and Acceptance
H Form of Opinion of Robert E. Sawyer, Esq., Counsel to the Company
I Form of Opinion of Cravath, Swaine & Moore, Special Counsel
to the Agents
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J Form of Addendum
K Form of Administrative Questionnaire
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FIVE-YEAR CREDIT AGREEMENT
THIS AGREEMENT, dated as of January 4, 2001, is among OCCIDENTAL
PETROLEUM CORPORATION, a Delaware corporation (hereinafter called the
"COMPANY"), the Banks (as defined below), THE CHASE MANHATTAN BANK, as
syndication agent (hereinafter, in such capacity, together with any
successor thereto in such capacity, the "SYNDICATION AGENT"), BANK OF
AMERICA, N.A. and ABN AMRO BANK N.V., as co-documentation agents
(hereinafter, in such capacity, together with any successor to either
thereof in such capacity, the "CO-DOCUMENTATION AGENTS"), THE BANK OF
NOVA SCOTIA, as administrative agent (hereinafter, in such capacity,
together with any successor thereto in such capacity, the
"ADMINISTRATIVE AGENT"), and BANK ONE, NA, THE BANK OF NEW YORK,
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH, BNP
PARIBAS, CITICORP USA, INC., COMMERZBANK AG, NEW YORK BRANCH AND GRAND
CAYMAN BRANCH, CREDIT LYONNAIS NEW YORK BRANCH, CREDIT SUISSE FIRST
BOSTON, MIZUHO FINANCIAL GROUP, NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH AND NASSAU BRANCH, AND SOCIETE GENERALE, as managing
agents (hereinafter, in such capacity, the "MANAGING AGENTS").
W I T N E S S E T H
WHEREAS the Company has requested the Banks to provide a $1,000,000,000
committed credit facility for general corporate purposes, pursuant to which the
Company may borrow from the Banks pro rata on a revolving credit basis from time
to time on and after the Effective Date and prior to the Maturity Date;
WHEREAS the Company has also requested the Banks to provide an uncommitted
credit facility pursuant to which the Company may invite Banks from time to time
designated by it to bid on a competitive basis to make short-term loans to the
Company; and
WHEREAS the Banks are willing to provide such credit facilities to the
Company on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated (the meanings given to terms defined herein being equally applicable
to both the singular and plural forms of such terms):
"ACCUMULATED FUNDING DEFICIENCY" has the meaning assigned to that term in
Section 412 of the Code.
"ADDENDUM" means an instrument, substantially in the form of Exhibit J
hereto.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
substantially in the form of Exhibit K hereto, which each Bank shall complete
and provide to the Administrative Agent.
"AFFECTED BANK" means, respectively, (i) any Bank or Participant affected
by the events described in Section 2.09(a), Section 2.09(b), Section 2.09(f) or
Section 2.13 hereof, (ii) any Bank affected by the events described in Section
2.14 hereof, or (iii) any Bank affected by the events described in Section
4.03(a) hereof, as the case may be, but only for any period during which such
Bank or Participant shall be affected by such events.
"AGENTS" means, collectively, the Syndication Agent, the Administrative
Agent and the Co-Documentation Agents.
"AGREEMENT" means this Agreement, as the same may at any time be amended or
modified and in effect.
"ALLOCABLE SHARE" means, when used with reference to any Assenting Bank at
the time any determination thereof is to be made, (a) in the case of the
Revolving Credit Commitment and Revolving Credit Loans of an Affected Bank, a
fraction, the numerator of which shall be the Revolving Credit Commitment of
such Assenting Bank at such time and the denominator of which shall be the
aggregate of the Revolving Credit Commitments of all Assenting Banks at such
time, and (b) in the case of the Competitive Loans, if any, of an Affected Bank,
the outstanding principal amount thereof, divided among the Assenting Banks in
such proportion as the Company and such Assenting Banks shall agree.
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"ALTERNATE BASE RATE" means for any day, a rate per annum equal to the
highest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% per annum, and (c) the Federal Funds Effective Rate
in effect for such day plus 1/2 of 1% per annum.
For purposes hereof, "Prime Rate" means the rate per annum announced by the
Administrative Agent from time to time as its base rate in effect at its
principal office in the City of New York; each change in the Prime Rate shall be
effective on the date such change is announced as effective.
For purposes hereof, "Base CD Rate" means the sum of (a) the product of (i)
the Average Weekly Three-Month Secondary CD Rate and (ii) Statutory Reserves
PLUS (b) the Assessment Rate; "Average Weekly Three-Month Secondary CD Rate"
means the secondary market rate ("Secondary CD Rate") for three-month
certificates of deposit (secondary market) of major United States money center
banks for the most recent weekly period ending Friday reported in the Federal
Reserve Statistical release entitled "Selected Interest Rates" (currently
publication H.15) or any successor publication released during the week for
which the Secondary CD Rate is being determined. The Secondary CD Rate so
reported shall be in effect, for the purpose of this definition, for each day of
the week in which the release date of such publication occurs. If such
publication or a substitute containing the foregoing rate information is not
published by the Board for any week, such average rate shall be determined by
the Administrative Agent on the first Business Day of the week succeeding such
week for which such rate information is not published on the basis of bids
quoted at approximately 11:00 a.m., New York City time, on such day to the
Administrative Agent by three New York City negotiable certificate of deposit
dealers of recognized standing for the sale of secondary market Dollar
certificates of deposit with remaining maturities of approximately three months
issued by the United States offices of major United States money center banks.
Any change in the Base CD Rate due to a change in the Average Weekly Three-Month
Secondary CD Rate shall be effective on the effective date of such change in the
Average Weekly Three-Month Secondary CD Rate.
For purposes hereof, "Federal Funds Effective Rate" means, for any day, an
interest rate per annum equal to the weighted average of the rates in effect on
such day for overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
For purposes hereof, any change in the Alternate Base Rate due to a change
in the Base CD Rate or the Federal Funds Effective Rate shall be effective on
the effective date of such change in the Base CD Rate or the Federal Funds
Effective Rate, as the
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case may be. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain either the Base CD Rate or the Federal Funds Effective Rate,
or both such Interest Rates, for any reason, including, without limitation, the
inability or failure of the Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the Alternate Base Rate shall
be the higher of the Prime Rate and such other rate, if any, referred to in the
definition of Alternate Base Rate that the Administrative Agent is able to
ascertain until the circumstances giving rise to such inability no longer exist.
"ALTERNATE BASE RATE LOAN" means any Loan with respect to which the
Interest Rate is based on the Alternate Base Rate.
"APPLICABLE FACILITY FEE PERCENTAGE" means, on any date, the applicable
percentage set forth below based upon the ratings applicable on such date to
Index Debt:
PERCENTAGE
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LEVEL 1
A- or better by S&P
A3 or better by Moody's .1000%
LEVEL 2
BBB+ by S&P
Baa1 by Moody's .1250%
LEVEL 3
BBB by S&P
Baa2 by Moody's .1500%
LEVEL 4
BBB- by S&P
Baa3 by Moody's .1750%
LEVEL 5
BB+ or below by S&P
Ba1 or below by Moody's .2000%
For purposes hereof, (i) if the ratings established (or deemed to have been
established, as provided in clause (ii) below) by Moody's and S&P shall fall
within different Levels, the rating in the inferior Level shall be disregarded,
unless one of the ratings is below Level 4, in which case the Applicable
Facility Fee Percentage will be based on the inferior of the two Levels, (ii) if
Moody's or S&P shall not have in effect a rating for Index Debt (other than (a)
because such rating agency shall no longer be in the business of rating
corporate debt obligations or (b) as a result of a
[NYCorp;1203895.1]
4
change in the rating system of Moody's or S&P), then such rating agency will be
deemed to have established a rating for Index Debt in Level 5 and (iii) if any
rating established (or deemed to have been established, as provided in clause
(ii) above) by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), such change shall be effective
as of the date on which it is first publicly announced by the applicable rating
agency. Each change in the Applicable Facility Fee Percentage shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Company and the Banks (acting through the Syndication Agent) shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such changed rating system or the non-availability of ratings from such
rating agency.
"APPLICABLE MARGIN" means, on any date, with respect to any Eurodollar
Loan, Certificate of Deposit Loan, Term Federal Funds Loan or Alternate Base
Rate Loan, as the case may be, the applicable spread set forth below based upon
the ratings applicable on such date to Index Debt:
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
S&P A- or better BBB+ BBB BBB- BB+ or below
Moody's A3 or better Baa1 Baa2 Baa3 Ba1 or below
Eurodollar .4000% .5000% .6000% .7000% .9250%
Certificate of Deposit .5500% .6500% .7500% .8500% 1.0750%
Term Federal Funds .8000% .9000% 1.0000% 1.1000% 1.3250%
Alternate Base Rate 0 0 0 0 0
For purposes hereof, (i) if the ratings established (or deemed to have been
established, as provided in clause (ii) below) by Moody's and S&P shall fall
within different Levels, the rating in the inferior Level shall be disregarded,
unless one of the ratings is below Level 4, in which case the Applicable Margin
will be based on the inferior of the two Levels, (ii) if Moody's or S&P shall
not have in effect a rating for Index Debt (other than (a) because such rating
agency shall no longer be in the business of rating corporate debt obligations
or (b) as a result of a change in the rating system of Moody's or S&P), then
such rating agency will be deemed to have established a rating for Index Debt in
Level 5 and (iii) if any rating established (or deemed to have been established,
as provided in clause (ii) above) by Moody's or S&P shall be changed (other than
as a result of a change in the rating system of Moody's or S&P), such change
shall be effective as of the date on which it is first publicly announced by the
applicable rating agency. Each change in the Applicable Margin shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next
[NYCorp;1203895.1]
5
such change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Company and the Banks (acting through the Syndication
Agent) shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system or the non-availability
of ratings from such rating agency.
"ASSENTING BANK" has the meaning assigned to that term in Section
2.09(e)(ii) hereof.
"ASSESSMENT RATE" means, for any date, the rate per annum (expressed as a
percentage and rounded, if necessary, to the nearest 1/10,000 of one percent)
which is equal to the arithmetic average (determined by the Administrative
Agent) of the then current net annual assessment rate that will be employed in
determining amounts payable by The Chase Manhattan Bank and Bank of America,
N.A. to the Federal Deposit Insurance Corporation ("FDIC") (or any successor)
for insurance by the FDIC (or such successor) of time deposits made in Dollars
or, in the event that the Administrative Agent is unable to obtain such net
annual assessment rates from both The Chase Manhattan Bank and Bank of America,
N.A., the rate per annum (expressed as a percentage and rounded, if necessary,
to the nearest 1/10,000 of one percent) which is equal to such current net
annual assessment rate of The Chase Manhattan Bank or Bank of America, N.A., as
the case may be.
"ASSIGNMENT AND ACCEPTANCE" means an instrument substantially in the form
of Exhibit G hereto.
"BANK" and "BANKS" mean, respectively, (i) each bank or financial
institution which becomes a party to this Agreement by signing on the signature
pages hereto, by signing an Addendum or pursuant to Section 10.06(c) hereof, and
(ii) all such banks and financial institutions.
"BANK FUNDING DEFAULT" means any failure by the Company to repay any
portion of a Loan which otherwise would have been repaid in accordance with the
second sentence of Section 2.07 hereof from proceeds of a new Loan or Loans,
which failure is attributable solely to the failure of any Bank to make
available all or any portion of the new Loan or Loans to be made by such Bank
pursuant to Section 2.07 hereof.
"BASE CD RATE" has the meaning assigned to that term in the definition of
the term Alternate Base Rate.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States.
"BORROWING" means a borrowing by the Company from the Banks (or any of
them) pursuant to this Agreement (including any such borrowing made as a result
of the operation of Section 2.07, Section 2.09(e)(ii), Section 2.09(e)(iii),
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Section 2.13(c)(i), Section 2.14(i), Section 4.03(b)(ii), or Section
4.03(b)(iii) hereof, as the case may be).
"BORROWING DATE" means the date on which a Borrowing is, or is to be,
consummated, as the context may indicate.
"BUSINESS DAY" means any day not a Saturday, Sunday or legal holiday in the
State of New York or the State of California and on which (i) banks and the
Federal Reserve Bank of New York are open for business in New York City, and
(ii) banks are open for business in California; PROVIDED, HOWEVER, that when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in Dollar deposits in
the London Interbank Market.
"CALENDAR QUARTER" means a calendar quarter ending on the last day of any
March, June, September or December.
"CAPITAL ADEQUACY CHANGE" has the meaning assigned to that term in Section
2.09(b) hereof.
"CAPITAL ADEQUACY RULE" has the meaning assigned to that term in Section
2.09(b) hereof.
"CAPITAL SECURITIES" means, with respect to the Company, (i) mandatorily
redeemable capital trust securities of trusts which are Subsidiaries and the
subordinated debentures of the Company in which the proceeds of the issuance of
such capital trust securities are invested, which securities and debentures have
an initial final maturity of at least thirty years, have no scheduled
amortization prior to maturity and, in the case of the debentures, allow for the
deferral of interest payments for up to five years and have been subordinated to
all other indebtedness of the Company and (ii) other securities whose basic
structure and terms are similar to those described in (i) which qualify as tier
1 capital under the capital adequacy rules and guidelines of the U.S. Federal
Reserve Board applicable to U.S. bank holding companies; PROVIDED, HOWEVER, that
in the case of (i) and (ii), such capital securities are accounted for on the
financial statements of the Company as a minority interest, Company-Obligated
Mandatorily Redeemable Trust Preferred Securities of Subsidiary Trust Holding
Solely Subordinated Notes of the Company, or similar balance sheet designation
not included in liabilities.
"CERTIFICATE OF DEPOSIT LOAN" means any Loan with respect to which the
Company shall have selected an Interest Rate based on the Certificate of Deposit
Rate in accordance with the provisions of Article II hereof.
"CERTIFICATE OF DEPOSIT RATE" means, for any Interest Period with respect
to any Certificate of Deposit Loan, an interest rate per annum (expressed as a
percentage and rounded, if necessary, to the nearest 1/10,000 of one percent)
equal to the sum
[NYCorp;1203895.1]
7
of (a) the product of (i) the Fixed Certificate of Deposit Rate in effect for
such Interest Period and (ii) Statutory Reserves, PLUS (b) the Assessment Rate.
For purposes hereof, "Fixed Certificate of Deposit Rate" means, for any
Interest Period with respect to any Certificate of Deposit Loan, the arithmetic
average (expressed as a percentage and rounded, if necessary, to the nearest
1/10,000 of one percent) as determined (subject to Section 10.08 hereof) by the
Administrative Agent on the basis of quotations, if any, received by the
Administrative Agent from the Reference Banks of the arithmetic average
(expressed as a percentage and rounded, if necessary, to the nearest 1/10,000 of
one percent) of the prevailing rates per annum bid at or about 10:00 a.m., New
York City time, to the Reference Banks on the first Business Day of the Interest
Period applicable to such Certificate of Deposit Loan by three New York City
negotiable certificate of deposit dealers of recognized standing selected by
each such Reference Bank for the purchase at face value of negotiable primary
Dollar certificates of deposit of such Reference Bank in an amount approximately
equal to such Reference Bank's portion of the principal amount of the Revolving
Credit Borrowing of which such Certificate of Deposit Loan forms a part (or, in
the case of a Competitive Loan, a principal amount that would have been such
Reference Bank's portion of the Revolving Credit Borrowing had such Competitive
Borrowing been a Revolving Credit Borrowing) and with a maturity comparable to
such Interest Period.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time and in effect.
"CO-DOCUMENTATION AGENTS" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY" has the meaning assigned to that term in the introduction to this
Agreement.
"COMPETITIVE BID" means an offer by a Competitive Bid Bank to make a
Competitive Loan pursuant to Section 2.02 hereof.
"COMPETITIVE BID BANKS" means those Banks from time to time designated by
the Company, by written notice to the Administrative Agent, as Competitive Bid
Banks entitled to submit Competitive Bids pursuant to Section 2.02(c) hereof.
"COMPETITIVE BID RATE" means, as to any Competitive Bid made by a Bank
pursuant to Section 2.02(c) hereof, (a) in the case of a Eurodollar Loan or a
Certificate of Deposit Loan, the Margin, and (b) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Bank making such Competitive
Bid.
"COMPETITIVE BID REQUEST" means a request made pursuant to Section 2.02(a)
hereof substantially in the form of Exhibit B hereto.
[NYCorp;1203895.1]
8
"COMPETITIVE BORROWING" means, as the case may be, (a) a Borrowing
consisting of a Competitive Loan from a Competitive Bid Bank whose Competitive
Bid, accepted by the Company, is equal to the entire amount of such Borrowing,
or (b) a Borrowing consisting of concurrent Competitive Loans from each of the
Competitive Bid Banks whose Competitive Bid as a part of such Borrowing has been
accepted by the Company, in each case pursuant to the bidding procedure
described in Section 2.02 hereof.
"COMPETITIVE LOAN" means a Loan from a Competitive Bid Bank to the Company
pursuant to the bidding procedure described in Section 2.02 hereof.
"COMPETITIVE NOTES" and "COMPETITIVE NOTE" mean, respectively, (a) the
promissory notes of the Company substantially in the form of Exhibit A-1 hereto,
issued pursuant to and in accordance with this Agreement, as such promissory
notes may be amended or modified and in effect, and (b) a single such promissory
note.
"CONFIDENTIAL INFORMATION" has the meaning assigned to that term in Section
10.02 hereof.
"CONSOLIDATED ADJUSTED TANGIBLE NET WORTH" means the total of the Tangible
Net Worth of the Company and its Specified Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting principles,
after eliminating all inter-company items.
"CONSOLIDATED DEBT" means the sum of, without duplication (i) Consolidated
Funded Debt, including that portion of Consolidated Funded Debt maturing within
one year from the date of such determination, (ii) Consolidated Short-Term
Borrowings and (iii) obligations reflected for financial reporting purposes as
deferred credits for revenue from sales of future production of the Company and
its Specified Subsidiaries; PROVIDED, HOWEVER, that Consolidated Debt shall in
no event include any Capital Securities of the Company or any of its
Subsidiaries.
"CONSOLIDATED FUNDED DEBT" means the total of all Funded Debt of the
Company and its Specified Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, after eliminating all
inter-company items.
"CONSOLIDATED SECURED DEBT" means the total of all Secured Debt of the
Company and its Specified Subsidiaries other than any such Secured Debt which is
owed by a Specified Subsidiary to the Company or which is owed by one Specified
Subsidiary to another Specified Subsidiary.
"CONSOLIDATED SHORT-TERM BORROWINGS" means the total of all Short-Term
Borrowings of the Company and its Specified Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting principles,
after eliminating all inter-company items.
[NYCorp;1203895.1]
9
"CONSOLIDATED SUBSIDIARY" means any Subsidiary of the Company included in
the financial statements of the Company and its Subsidiaries prepared on a
consolidated basis in accordance with generally accepted accounting principles.
"DOLLARS" and the symbol "$" mean the lawful currency of the United States
of America.
"DOMESTIC LOANS" and "DOMESTIC LOAN" mean, respectively, (a) any Loans
during any period in which such Loans bear Interest Rates determined with
reference to the Alternate Base Rate, the Certificate of Deposit Rate or the
Term Federal Funds Rate, as the case may be, and (b) a single such Loan during
any such period.
"EFFECTIVE DATE" means the date upon which the conditions of Section 7.01
shall have been satisfied. The Effective Date is January 4, 2001.
"ELIGIBLE ASSIGNEE" means a commercial bank having total assets in excess
of $8,000,000,000 or any other financial institution mutually acceptable to the
Company and the Administrative Agent.
"EMPLOYEE BENEFIT PLAN" has the meaning assigned to the term "employee
benefit plan" in Section 3(3) of ERISA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and in effect.
"EURODOLLAR LOAN" means any Loan with respect to which the Company shall
have selected an Interest Rate based on the Eurodollar Rate in accordance with
the provisions of Article II hereof.
"EURODOLLAR RATE" means, for any Interest Period with respect to any
Eurodollar Loan, the rate per annum which is equal to the arithmetic average (as
determined by the Administrative Agent (subject to Section 10.08 hereof) on the
basis of quotations, if any, received by the Administrative Agent from the
Reference Banks, with such average expressed as a percentage and rounded, if
necessary, to the nearest 1/10,000 of one percent) of the average rate per annum
at which each Reference Bank is offered deposits in Dollars by prime banks in
the London Interbank Eurodollar market as of 11:00 a.m., London time, on the day
which is two (2) Business Days prior to the beginning of such Interest Period,
for settlement on the first day of such Interest Period and for the approximate
number of days comprised therein, in an amount comparable to the amount of such
Reference Bank's portion of the principal amount of the Revolving Credit
Borrowing of which such Eurodollar Loan forms a part (or, in the case of a
Competitive Loan, a principal amount that would have been such Reference Bank's
portion of the Revolving Credit Borrowing had such Competitive Borrowing been a
Revolving Credit Borrowing).
[NYCorp;1203895.1]
10
"EVENT OF DEFAULT" has the meaning assigned to that term in Section 8.01
hereof.
"EXCEPTED SUBSIDIARY" means (a) each of Occidental Receivables, Inc., a
California corporation, OXY Receivables Corporation, a Delaware corporation, and
Occidental Petrochem Partner GP, Inc., a Delaware corporation, but only until
such time, if any, as it has been withdrawn from status as an Excepted
Subsidiary by an Officers' Certificate hereinafter referred to, effective as of
the date of such Officers' Certificate, (b) effective as of the date of the
Officers' Certificate hereinafter referred to, any Subsidiary of the Company
which has been designated as an Excepted Subsidiary after the Effective Date by
an Officers' Certificate and has not been withdrawn from status as an Excepted
Subsidiary by a subsequent Officers' Certifi cate effective as of the date of
such subsequent Officers' Certificate; PROVIDED that no Subsidiary of the
Company may be designated as an Excepted Subsidiary unless, immediately after
giving effect to such designation, the Company could become liable with respect
to at least $1.00 of additional Funded Debt in compliance with Section 6.02(c)
hereof, and (c) every Subsidiary of one or more Excepted Subsidiaries.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of March
20, 1997, among the Company, the banks party thereto, J.P. Morgan Securities
Inc. and BancAmerica Securities, Inc., as co-syndication agents, The Chase
Manhattan Bank, as documentation agent, and The Bank of Nova Scotia, as
administrative agent, as amended by the First Amendment dated as of August 31,
1998 and the Second Amendment dated as of March 15, 1999.
"FACILITY FEE" has the meaning assigned to that term in Section 2.08
hereof.
"FIXED RATE LOAN" means any Competitive Loan made by a Bank pursuant to
Section 2.02 hereof based upon a fixed rate per annum offered by such Bank
(expressed as a percentage to 1/10,000 of one percent) and accepted by the
Company.
"FUNDED DEBT" means, with respect to any Person, all Indebtedness of such
Person (a) maturing one year or more from the date of the creation thereof, (b)
directly or indirectly renewable or extendible, at the option of the debtor, by
its terms or by the terms of any instrument or agreement relating thereto, to a
date one year or more from the date of the creation thereof, and (c) under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more, even though such Indebtedness may also
conform to the definition of Short- Term Borrowing.
"INCREASED COST CHANGE" has the meaning assigned to that term in Section
2.09(a) hereof.
"INDEBTEDNESS" means, with respect to any Person, as of the date on which
Indebtedness is to be determined, (a) all items (except items of capital stock
or of
[NYCorp;1203895.1]
11
surplus or of deferred credits and other liabilities combined with deferred
credits for financial reporting purposes or minority interests in Subsidiaries
of such Person) which in accordance with generally accepted accounting
principles applied in the preparation of the financial statements of the Company
and its Consolidated Subsidiaries would be included in determining total
liabilities as shown on the liability side of a balance sheet of such Person,
(b) all indebtedness secured by any mortgage on, or other security interest in,
any property or asset owned or held by such Person subject thereto, whether or
not the indebtedness secured thereby shall have been assumed by such Person and
(c) all indebtedness of others which such Person has directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the ordinary
course of business), discounted with recourse, agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect of
which such Person has otherwise become directly or indirectly liable. For the
purpose of computing the Indebtedness of any Person, there shall be excluded any
particular Indebtedness which meets one or more of the following categories:
(i) Indebtedness with respect to which sufficient cash or cash
equivalents or securities shall have been deposited in trust to provide for
the full payment, redemption or satisfaction of the principal of, premium,
if any, and interest to accrue on, such Indebtedness to the stated maturity
thereof or to the date of prepayment thereof, as the case may be, and as a
result of such deposit such particular Indebtedness, in accordance with
generally accepted accounting principles, shall no longer be required to be
reported on a balance sheet of such Person as a liability, and such cash or
cash equivalents or securities shall not be required to be reported as an
asset;
(ii) Indebtedness which is not classified as Indebtedness under clause
(a) of the definition of Indebtedness and (x) which arises from any
commitment of such Person relating to pipeline operations to pay for
property or services substantially without regard to the non-delivery of
such property or the non-furnishing of such services or (y) which is
Indebtedness of a partnership, joint venture or similar entity less than a
majority of the equity interest of which is at the time owned by such
Person or by such Person and one or more Subsidiaries of such Person or, if
such Person is a Subsidiary of the Company, by such Person and either the
Company or one or more other Subsidiaries of the Company or by such Person
and the Company and one or more other Subsidiaries of the Company and which
is payable solely out of the property or assets owned or held by such
partnership, joint venture or similar entity or is secured by a mortgage
on, or other security interest in, the property or assets owned or held by
such partnership, joint venture or similar entity, in either case without
any further recourse to or liability of such Person; or
(iii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which is payable solely
out of certain property or assets of such Person, or is secured by a
mortgage on, or other security interest
[NYCorp;1203895.1]
12
in, certain property or assets owned or held by such Person, in either case
without any further recourse to or liability of such Person, to the extent
such Indebtedness exceeds (x) if such Person records such property or
assets on its books, the value for such property or assets recorded on such
books or (y) if such Person does not record such property or assets on its
books, (1) if such Indebtedness is a general obligation of the entity which
does record such property or assets on its books, the net investment in or
advances to such entity as recorded on the books of such Person or (2) if
such Indebtedness is payable solely out of certain property or assets of
such entity, the lesser of the value for such property or assets recorded
on the books of such entity or the net investment in or advances to such
entity as recorded on the books of such Person, in each case determined in
accordance with generally accepted accounting principles.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that term in Section
10.07 hereof.
"INDEMNITEES" and "INDEMNITEE" have the respective meanings assigned to
those terms in Section 10.07 hereof.
"INDEX DEBT" means senior, unsecured, non-credit-enhanced, publicly-held,
long- term indebtedness for borrowed money of the Company.
"INTEREST PAYMENT DATE" means (a) with respect to Alternate Base Rate
Loans, the last day of each Calendar Quarter, commencing with the first of such
dates to occur after the date of this Agreement, (b) with respect to any
Eurodollar Loan, Certificate of Deposit Loan or Term Federal Funds Loan, the
last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan or a Certificate of Deposit Loan with an Interest Period of 6
months or 180 days, respectively, also the day that would have been the Interest
Payment Date for such Loan had an Interest Period of 3 months or 90 days,
respectively, been applicable to such Loan, and (c) in the case of a Fixed Rate
Loan, the last day of the Interest Period applicable thereto and in the case of
a Fixed Rate Loan with an Interest Period of more than 90 days, each day within
such Interest Period that would have been an Interest Payment Date had such Loan
been a series of consecutive Fixed Rate Loans with 90-day Interest Periods.
"INTEREST PERIOD" means (a) as to any Eurodollar Loan, the period
commencing on the Borrowing Date of such Loan and ending on the numerically
corresponding day (or if there is no such corresponding day, the last day) in
the calendar month that is 1, 2, 3 or 6 months later, as the Company may elect,
(b) as to any Certificate of Deposit Loan, the period commencing on the
Borrowing Date of such Loan and ending 30, 60, 90 or 180 days later, as the
Company may elect, (c) as to any Term Federal Funds Loan, the period commencing
on the Borrowing Date of such Loan and ending 7 days later, (d) as to any
Alternate Base Rate Loan, the period commencing on the Borrowing Date of such
Loan and ending 90 days later or, if
[NYCorp;1203895.1]
13
earlier, on the date of prepayment of such Loan, and (e) as to any Fixed Rate
Loan, the period commencing on the Borrowing Date of such Loan and ending on the
date specified in the Competitive Bid accepted by the Company with respect to
such Fixed Rate Loan, which period shall not be less than 8 days or more than
360 days; PROVIDED, HOWEVER, that (i) if any Interest Period would end on a day
which shall not be a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, with respect to Eurodollar Loans only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day, and (ii)
no Interest Period may be selected that ends later than the Maturity Date.
"INTEREST RATE" means the rate or rates of interest to be determined as
provided in Article III hereof.
"LIEN" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"LOANS" and "LOAN" mean, respectively, (a) all loans made by the Banks or
Competitive Bid Banks or a single Bank or Competitive Bid Bank (as the context
may indicate) to the Company pursuant to this Agreement (including any such loan
made as a result of the operation of Section 2.07, Section 2.09(e)(ii), Section
2.09(e)(iii), Section 2.13(c)(i), Section 2.14(i), Section 4.03(b)(ii) or
Section 4.03(b)(iii) hereof, as the case may be), and (b) a single such loan
made by any Bank or Competitive Bid Bank.
"MANAGING AGENTS" has the meaning assigned to that term in the introduction
to this Agreement.
"MARGIN" means, as to any Competitive Bid relating to a Eurodollar Loan or
a Certificate of Deposit Loan, the margin (expressed as a percentage rate per
annum and rounded, if necessary, to the nearest 1/10,000 of one percent) to be
added to or subtracted from the Eurodollar Rate or the Certificate of Deposit
Rate, as applicable, to determine the interest rate offered by such Competitive
Bid Bank with respect to such Eurodollar Loan or Certificate of Deposit Loan.
"MATURITY DATE" means the earlier of January 4, 2006, or the date on which
the Revolving Credit Commitments shall terminate in accordance with the terms of
this Agreement.
"MOODY'S" means Moody's Investors Service, Inc. or any successor thereto.
"MULTIEMPLOYER PLAN" has the meaning assigned to the term "multiemployer
plan" in Section 3(37) of ERISA.
[NYCorp;1203895.1]
14
"NOTE" means a Competitive Note or a Revolving Credit Note executed and
delivered by the Company as provided in Section 2.06 hereof.
"OFFICERS' CERTIFICATE" means a certificate executed on behalf of the
Company by its President or one of its Vice Presidents and by one of its other
Vice Presidents or its Treasurer or one of its Assistant Treasurers or its
Controller or one of its Assistant Controllers.
"PARTICIPANTS" and "PARTICIPANT" mean, respectively, (a) the banks and
other entities referred to in Section 10.06(b) hereof, and (b) any one of such
banks or other entities.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"PERSON" means a corporation, an association, a partnership, an
organization, a business, an individual, a government or a political subdivision
thereof or a govern mental agency.
"PLAN" means (a) with respect to the Company, any plan described in Section
4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof, under
which the Company or any Related Person to the Company has contributed, and (b)
with respect to any other Person, any employee benefit plan or other plan
established or maintained by such Person for the benefit of such Person's
employees and to which Title IV of ERISA applies.
"PLAN ADMINISTRATOR" has the meaning assigned to the term "administrator"
in Section 3(16)(A) of ERISA.
"PLAN SPONSOR" has the meaning assigned to the term "plan sponsor" in
Section 3(16)(B) of ERISA.
"PRINCIPAL SUBSIDIARIES" and "PRINCIPAL SUBSIDIARY" mean, respectively, (a)
the following Persons (or any other Person which is, directly or indirectly, the
survivor or successor in interest in any merger or consolidation involving, or
the transferee with respect to all or substantially all of the assets of, the
following Persons): Occidental Chemical Corporation, a New York corporation,
Occidental Chemical Holding Corporation, a California corporation, Occidental
International Exploration and Production Company, a California corporation,
Occidental Oil and Gas Holding Corporation, a California corporation, Occidental
Petroleum Investment Co., a California corporation, Oxy CH Corporation, a
California corporation, Oxy Chemical Corporation, a California corporation, OXY
USA Inc., a Delaware corporation, Occidental Permian Ltd., a Texas limited
partnership, Occidental Petrochem Partner 2, Inc., a Delaware corporation,
Occidental PVC LP, Inc., a Delaware corporation, OXY Oil Partners, Inc., a
Delaware corporation, Oxy Vinyls, LP, a
[NYCorp;1203895.1]
15
Delaware limited partnership, and any other Person which shall have become a
Subsidiary of the Company after December 31, 1999, and shall have, according to
its most recent audited year-end financial statements (or, if there are no
audited financial statements for its most recent fiscal year, its most recent
unaudited year-end financial statements) available at the date it became a
Subsidiary, total assets in excess of 5% of the consolidated assets of the
Company and its Consolidated Subsidiaries shown on the Company's most recent
audited year-end financial statements available at such time, and (b) any one of
such Persons (or any other Person which is, directly or indirectly, the survivor
or successor in interest in any merger or consolidation involving, or the
transferee with respect to all or substantially all of the assets of, any one of
such Persons); PROVIDED that, notwithstanding the foregoing, no Excepted
Subsidiary and no Person which is not a Consolidated Subsidiary shall be a
Principal Subsidiary.
"PROHIBITED TRANSACTION" has the respective meanings assigned to that term
in Section 4975 of the Code and in Section 406 of ERISA.
"PROPORTIONAL SHARE" means, at the time any determination thereof is to be
made and when used with reference to any Bank and any described aggregate or
total amount, an amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction, the numerator of which shall
be such Bank's Revolving Credit Commitment at such time and the denominator of
which shall be the Total Commitment at such time; PROVIDED, HOWEVER, that if
prior to the time of such determination the Revolving Credit Commitments shall
have been terminated pursuant to Section 8.01 hereof, any determination of
Proportional Share shall be based upon the amounts of Revolving Credit
Commitments and Total Commitment in effect immediately prior to such
termination.
"REFERENCE BANKS" and "REFERENCE BANK" mean, respectively, (a) the
following Persons: The Chase Manhattan Bank, The Bank of Nova Scotia, and ABN
AMRO Bank N.V., or any other Person hereafter appointed as a Reference Bank
pursuant to Section 10.08 hereof, and (b) any one of such Persons.
"REFINANCING LOAN" means (A) any Revolving Credit Loan (i) which is made on
the date of repayment of any other Revolving Credit Loan and (ii) all of the
proceeds of which are applied, in accordance with Section 2.07 hereof, to the
repayment of such other Revolving Credit Loan, and (B) any Revolving Credit Loan
(i) which is made on the date of prepayment of any other Revolving Credit Loan
and (ii) all of the proceeds of which are applied, in accordance with Section
4.02 hereof, to the prepayment of such other Revolving Credit Loan. A
Refinancing Loan may be a Eurodollar Loan, a Certificate of Deposit Loan, a Term
Federal Funds Loan (except that a Term Federal Funds Loan may not be refinanced
with another Term Federal Funds Loan), an Alternate Base Rate Loan, or a
combination thereof, irrespective of whether the Loan or Loans being refinanced
with the proceeds of such Refinancing
[NYCorp;1203895.1]
16
Loan were bearing interest based upon the same or a different interest rate
basis as such Refinancing Loan.
"REGISTER" has the meaning assigned to that term in Section 10.06(e)
hereof.
"REGULATION D" means Regulation D of the Board, as the same may at any time
be amended or modified and in effect.
"REGULATION U" means Regulation U of the Board, as the same may at any time
be amended or modified and in effect.
"REGULATION X" means Regulation X of the Board, as the same may at any time
be amended or modified and in effect.
"RELATED PERSON" means, with respect to any Person, any trade or business
(whether or not incorporated) which, together with such Person, is under common
control as described in Section 414(c) of the Code.
"REPLACEMENT LENDER" means a lending institution designated by the Company
pursuant to Section 2.09(e)(iv), Section 2.13(c)(ii), Section 2.14(ii), or
Section 4.03(b)(iv) hereof, which, at the time of such designation, is not a
Bank.
"REPORTABLE EVENT" means a "reportable event" described in Section 4043(b)
of ERISA.
"REQUIRED BANKS" means, at the time any determination thereof is to be
made, Banks whose Revolving Credit Commitments aggregate at least 51% of the
Total Commitment, or, if the Revolving Credit Commitments shall have been
terminated pursuant to Section 8.01 hereof, Banks whose Revolving Credit
Commitments immediately prior to such termination aggregated at least 51% of the
Total Commitment immediately prior to such termination.
"REVOLVING CREDIT BORROWING" means a Borrowing (a) pursuant to Section
2.01(a) or Section 2.07 hereof consisting of simultaneous Revolving Credit Loans
from each of the Banks in accordance with their respective Proportional Share of
such Borrowing, or (b) made as a result of the operation of Section 2.09(e)(ii),
Section 2.09(e)(iii), Section 2.13(c)(i), Section 2.14(i), Section 4.03(b)(ii),
or Section 4.03(b)(iii) hereof.
"REVOLVING CREDIT BORROWING REQUEST" means a request made pursuant to
Section 2.01(b) hereof substantially in the form of Exhibit E hereto.
"REVOLVING CREDIT COMMITMENT" means, when used with reference to any Bank
at the time any determination thereof is to be made, the amount of such Bank's
commitment hereunder to extend credit to the Company as set forth in
[NYCorp;1203895.1]
17
Section 2.01(a) hereof, which Revolving Credit Commitment, subject to Section
8.01 hereof, shall be the amount set forth opposite the name of such Bank on
Schedule I hereto or the amount set forth in an Addendum of such Bank delivered
in accordance with Section 10.16 hereof, as such commitment may from time to
time be adjusted under Section 2.09(e)(ii), Section 2.13(c)(i), Section 2.14(i)
or Section 4.03(b)(ii) hereof, reduced by the amount of any permanent
reduction(s) in such amount made pursuant to Section 4.01 or Section 4.03(a)
hereof.
"REVOLVING CREDIT COMMITMENTS" means each Revolving Credit Commitment,
collectively.
"REVOLVING CREDIT LOAN" shall have the meaning assigned to that term in
Section 2.01(a) hereof, and shall include, without limitation, any Substitute
Revolving Credit Loan.
"REVOLVING CREDIT NOTES" and "REVOLVING CREDIT NOTE" mean, respectively,
(a) the promissory notes of the Company substantially in the form of Exhibit A-2
hereto, issued pursuant to and in accordance with this Agreement, as such
promissory notes may at any time be amended or modified and in effect, and (b) a
single such promissory note.
"SECURED DEBT" means any Funded Debt of the Company or any Specified
Subsidiary secured by a Lien on assets of the Company or any Specified
Subsidiary, plus (without duplication) obligations of the Company or any
Specified Subsidiary reflected for financial reporting purposes as deferred
credits for revenue from sales of future production secured by a Lien on any
property of the Company or any Specified Subsidiary. For the purpose of
computing Secured Debt, the portion of any secured obligation which exceeds the
book value (as reflected on the Company's consolidated balance sheet) of the
assets of the Company and its Specified Subsidiaries securing such obligation
shall be excluded.
"SHORT-TERM BORROWING" means, with respect to any Person, all Indebtedness
of such Person in respect of borrowed money maturing on demand or within one
year from the date of the creation thereof and not directly or indirectly
renewable or extendible, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof; PROVIDED that Indebtedness of such
Person in respect of borrowed money arising under a revolving credit or similar
agreement which obligates the lender or lenders to extend credit over a period
of one year or more shall constitute Funded Debt and not a Short-Term Borrowing
even though the same matures on demand or within one year from the date as of
which such Short-Term Borrowing is to be determined.
"SPECIFIED SUBSIDIARY" means, at any time, any Consolidated Subsidiary, a
majority (by number of votes) of the Voting Securities of which is at such time
[NYCorp;1203895.1]
18
owned directly by the Company or by one or more of its Specified Subsidiaries,
or by the Company and one or more of its Specified Subsidiaries, and which is
not at such time designated as an Excepted Subsidiary; PROVIDED that (i) at the
time any Subsidiary of the Company is withdrawn from status as an Excepted
Subsidiary, such Subsidiary shall not be liable with respect to any Indebtedness
which it could not become liable with respect to hereunder on the date of such
withdrawal if it were then a Specified Subsidiary, and (ii) immediately after
giving effect to such withdrawal, no Event of Default or Unmatured Event of
Default shall have occurred and be continuing.
"S&P" means Standard & Poor's Corporation or any successor thereto.
"STATUTORY RESERVES" means the result (expressed as a percentage and
rounded, if necessary, to the nearest 1/10,000 of one percent) obtained by
dividing the number one by the number one minus the reserve percentage
(expressed as a decimal) (including, without limitation, any marginal, special,
emergency, or supplemental reserves) established by the Board and to which the
Administrative Agent is subject for time deposits in Dollars of over $100,000
with maturities approximately equal to the applicable Interest Period. Such
reserve percentage shall include, without limitation, reserves imposed under
Regulation D. Statutory Reserves shall be adjusted from time to time on and as
of the effective date of any change in the reserve percentage of the
Administrative Agent.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association, partnership or other business entity, a majority (by number of
votes) of the Voting Securities of which is at the time owned by such Person or
by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"TANGIBLE NET WORTH" of any Person means the sum of the amounts set forth
on the balance sheet of such Person as (a) the par or stated value of all
outstanding capital stock, (b) the amount of the Capital Securities of such
Person, without duplication of the mandatorily redeemable capital trust
securities and the subordinated debentures of the Company in which the proceeds
of the issuance of such capital trust securities are invested; PROVIDED that the
aggregate amount of Capital Securities added pursuant to this clause (b) at any
time of issuance thereof shall not exceed 5% of the sum of Consolidated Debt and
Consolidated Adjusted Tangible Net Worth, calculated as of the time of such
issuance of any such securities and (c) capital surplus, earned surplus and
premium on capital stock LESS (i) the par or stated value of all redeemable
preferred stock, (ii) that portion of the book value of all assets which would
be treated as intangibles under generally accepted accounting principles,
including without limitation, all such items as goodwill, trademarks, trade
names, brands, copyrights, patents, licenses and rights with respect
[NYCorp;1203895.1]
19
to the foregoing and unamortized debt discount and expenses, and (iii) all
investments in or advances to Excepted Subsidiaries appearing on the asset side
of such balance sheet.
"TAXES" has the meaning assigned to that term in Section 2.13(a) hereof.
"TERM FEDERAL FUNDS LOAN" means any Loan with respect to which the Company
shall have selected an Interest Rate based on the Term Federal Funds Rate in
accordance with the provisions of Article II hereof.
"TERM FEDERAL FUNDS RATE" means, for any Interest Period with respect to
any Term Federal Funds Loan, the rate per annum which is equal to the arithmetic
average (as determined by the Administrative Agent (subject to Section 10.08
hereof) on the basis of quotations, if any, received by the Administrative Agent
from the Reference Banks, with such average expressed as a percentage and
rounded, if necessary, to the nearest 1/10,000 of one percent) of the rates per
annum at which each Reference Bank is offered term Federal funds in the term
Federal funds market as of 10:00 a.m., New York City time, on the first Business
Day of such Interest Period, for settlement on such day and for the number of
days comprised therein in an amount comparable to the amount of the Term Federal
Funds Loan of such Reference Bank to be outstanding for such Interest Period.
"TOTAL COMMITMENT" means at any time the determination thereof is to be
made, the aggregate amount of the Revolving Credit Commitments of the Banks, as
in effect at such time.
"TRANSFEREE" has the meaning assigned to that term in Section 10.06(g)
hereof.
"UNMATURED EVENT OF DEFAULT" means an event, act or occurrence which with
the giving of notice or the lapse of time (or both) would become an Event of
Default.
"VOTING SECURITIES" means stock or partnership interests of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership or other business entity in question, other than stock or
partnership interests having the right so to vote solely by reason of the
happening of a contingency.
SECTION 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles as in effect from time to time, including, without
limitation, applicable statements, bulletins and interpretations issued by the
Financial Accounting Standards Board and bulletins, opinions, interpretations
and statements issued by the American Institute of Certified Public Accountants
or its committees. In the event that an actual or anticipated change (which term
for all purposes of this Agreement
[NYCorp;1203895.1]
20
includes, without limitation, the adoption of a new statement of financial
accounting standards) in generally accepted accounting principles would affect
the computation of any dollar amounts or ratios referred to in the financial
covenants herein, the parties to the Agreement will, promptly upon request,
enter into negotiations in good faith in an effort to agree upon amendments
which will most nearly preserve the original intent of such financial covenants.
Pending agreement on such amendments, such financial covenants will remain in
effect but will be measured by reference to generally accepted accounting
principles as in effect immediately prior to such change. When used herein, the
term "financial statements" shall include the notes and schedules thereto, but
need not include such notes or schedules when used with reference to such
statements of any Person as of any date other than the end of a fiscal year of
such Person.
ARTICLE II
LOAN PROVISIONS
SECTION 2.01. REVOLVING CREDIT COMMITMENTS; PROCEDURE FOR REQUESTS. (a)
Subject to the terms and conditions of this Agreement, each Bank, severally and
not jointly, agrees to make revolving credit loans ("REVOLVING CREDIT LOANS") to
the Company at any time and from time to time on and after the Effective Date
and until the Maturity Date; PROVIDED, HOWEVER, that (i) at no time shall the
outstanding aggregate principal amount of all Revolving Credit Loans made by a
Bank exceed its Proportional Share of the outstanding aggregate principal amount
of all Revolving Credit Loans made by all Banks (notwithstanding the fact that
the aggregate principal amount outstanding at any time of all Revolving Credit
Loans and Competitive Loans made by a Bank may exceed the Revolving Credit
Commitment of such Bank then in effect) and (ii) at no time shall the sum of the
outstanding aggregate principal amount of all Revolving Credit Loans and
Competitive Loans exceed the Total Commitment; PROVIDED FURTHER that nothing
contained herein shall be deemed to prohibit the making of, or to relieve any
Bank of its obligation to make, Revolving Credit Loans the proceeds of which are
to be applied solely to the repayment of principal of any Loan pursuant to
Section 2.07 hereof. The Company may borrow, repay, prepay and reborrow
Revolving Credit Loans on and after the Effective Date and prior to the Maturity
Date. The Revolving Credit Commitments shall automatically and permanently
terminate on the Maturity Date.
(b) To effect a Revolving Credit Borrowing, the Company shall give the
Administrative Agent notice (by telephone (confirmed promptly in writing) or
telecopier), substantially in the form of Exhibit E hereto, (i) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Loans, not later than 12:00
noon, New York City time, three Business Days before such Revolving Credit
Borrowing, (ii) in the case of a Revolving Credit Borrowing consisting of
Certificate of Deposit Loans, not later than 12:00 noon, New York City time, two
Business Days
[NYCorp;1203895.1]
21
before such Revolving Credit Borrowing, (iii) in the case of a Revolving Credit
Borrowing consisting of Term Federal Funds Loans, not later than 12:00 noon New
York City time, one Business Day before such Revolving Credit Borrowing, and
(iv) in the case of a Revolving Credit Borrowing consisting of Alternate Base
Rate Loans, not later than 1:00 p.m., New York City time, on the Business Day of
such Revolving Credit Borrowing. Such notice shall be irrevocable (except as
provided in Section 2.09(e)(i), Section 2.13(c)(iii), Section 3.03(b), Section
3.03(d) or Section 4.03(b)(i) hereof) and shall in each case refer to this
Agreement and specify (x) whether the Loans then being requested are to be
Eurodollar Loans, Certificate of Deposit Loans, Term Federal Funds Loans or
Alternate Base Rate Loans, or a combination thereof, (y) the Borrowing Date with
respect to such Loans (which shall be a Business Day) and the aggregate
principal amount thereof, and (z) in the case of Eurodollar Loans and
Certificate of Deposit Loans, the Interest Period with respect thereto. If no
Interest Period with respect to any Eurodollar Loan or Certificate of Deposit
Loan is specified in any such notice, then (i) in the case of a Eurodollar Loan,
the Company shall be deemed to have selected an Interest Period of one month's
duration, and (ii) in the case of a Certificate of Deposit Loan, the Company
shall be deemed to have selected an Interest Period of 30 days' duration. The
Administrative Agent shall promptly advise the other Banks by telecopier of any
notice given pursuant to this Section 2.01(b) and of each Bank's portion of the
requested Revolving Credit Borrowing.
SECTION 2.02. COMPETITIVE LOANS; PROCEDURE FOR REQUESTS. (a) Subject to the
terms and conditions of this Agreement, the Company may from time to time
request Competitive Bid Banks to submit Competitive Bids, and the Competitive
Bid Banks may submit such Competitive Bids and, from time to time on and after
the Effective Date and prior to the Maturity Date, may make Competitive Loans in
accordance with the procedures set forth in this Section 2.02. At no time shall
(i) the outstanding aggregate principal amount of all Competitive Loans made by
a Competitive Bid Bank or (ii) the outstanding aggregate principal amount of all
Revolving Credit Loans and Competitive Loans made by all Banks exceed the Total
Commitment, notwithstanding the fact that the aggregate principal amount
outstanding at any time of all Competitive Loans made by a Competitive Bid Bank
may exceed the Revolving Credit Commitment of such Bank.
(b) To request Competitive Bids, the Company shall give the Administrative
Agent (by telephone (confirmed in writing no later than 5:00 p.m., New York City
time, on the same day) or telecopier) a duly completed Competitive Bid Request
substantially in the form of Exhibit B hereto, to be received by the
Administrative Agent (i) in the case of Eurodollar Loans, not later than 12:00
noon, New York City time, five Business Days before a proposed Competitive
Borrowing, (ii) in the case of Certificate of Deposit Loans, not later than
12:00 noon, New York City time, four Business Days before a proposed Competitive
Borrowing, and (iii) in the case of Fixed Rate Loans, not later than 11:00 a.m.,
New York City time, one Business Day before a proposed Competitive Borrowing. No
Alternate Base Rate Loan or Term
[NYCorp;1203895.1]
22
Federal Funds Loan shall be requested in, or made pursuant to, a Competitive Bid
Request. A Competitive Bid Request that does not conform substantially to the
format of Exhibit B hereto may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly notify the Company of
such rejection by telephone (confirmed promptly in writing) or telecopier. A
Competitive Bid Request shall in each case refer to this Agreement and specify
(x) whether the Loans then being requested are to be Eurodollar Loans,
Certificate of Deposit Loans or Fixed Rate Loans, (y) the Borrowing Date with
respect to such Loans (which shall be a Business Day) and the aggregate
principal amount thereof (which shall be in amounts such that the aggregate
principal amount of all Loans outstanding immediately following the Borrowing of
the Loans pursuant to such Competitive Bid Request shall not exceed the Total
Commitment), and (z) the Interest Period with respect thereto. The aggregate
principal amount of the Competitive Borrowing requested pursuant to any
Competitive Bid Request shall not be less than $50,000,000. Promptly after its
receipt of a Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set forth in
Exhibit C hereto) the Competitive Bid Banks to bid, on the terms and conditions
of this Agreement, to make Competitive Loans pursuant to the Competitive Bid
Request.
(c) Each Competitive Bid Bank may, in its sole discretion, make one or more
Competitive Bids to the Company responsive to the Competitive Bid Request. Each
Competitive Bid by a Competitive Bid Bank must be in the form of Exhibit D
hereto and must be received by the Administrative Agent by telecopier, (i) in
the case of Eurodollar Loans, not later than 2:00 p.m., New York City time, four
Business Days before a proposed Competitive Borrowing, (ii) in the case of
Certificate of Deposit Loans, not later than 2:00 p.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (iii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Borrowing Date of the proposed Competitive Borrowing. Competitive Bids that do
not conform substantially to the format of Exhibit D hereto may be rejected by
the Administrative Agent after conferring with, and upon the instruction of, the
Company, and the Administrative Agent shall notify the Competitive Bid Bank that
submitted such Competitive Bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in an
integral multiple of $l,000,000 and which may equal the entire aggregate
principal amount of the Competitive Borrowing requested by the Company) of the
Competitive Loan that the Competitive Bid Bank is willing to make to the
Company, (y) the Competitive Bid Rate at which the Competitive Bid Bank is
prepared to make the Competitive Loan, and (z) the Interest Period with respect
thereto. Except as provided in Section 2.09(e)(i), Section 2.13(c)(iii), Section
3.03(c), and Section 4.03(b)(i) hereof, a Competitive Bid submitted by a
Competitive Bid Bank pursuant to this Section 2.02(c) shall be irrevocable. If
any Competitive Bid Bank shall elect not to make a Competitive Bid with respect
to a proposed Competitive Borrowing, such Competitive Bid Bank shall
[NYCorp;1203895.1]
23
so notify the Administrative Agent by telecopier (i) in the case of Eurodollar
Loans, not later than 2:00 p.m., New York City time, four Business Days before
such proposed Competitive Borrowing, (ii) in the case of Certificate of Deposit
Loans, not later than 2:00 p.m., New York City time, three Business Days before
such proposed Competitive Borrowing, and (iii) in the case of Fixed Rate Loans,
not later than 9:30 a.m., New York City time, on the Borrowing Date of such
proposed Competitive Borrowing; PROVIDED, HOWEVER, that the failure of any
Competitive Bid Bank to give such notice shall not cause such Bank to be
obligated to make any Competitive Loan as part of such Competitive Borrowing.
(d) The Administrative Agent shall notify the Company of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the identity
of the Competitive Bid Bank that made each bid; such notice shall be given to
the Company by telephone (confirmed immediately by telecopier) not later than
(i) 45 minutes (in the case of Competitive Bids for Fixed Rate Loans) and (ii) 2
hours (in the case of other Competitive Bids) after the latest time by which
such Competitive Bids were required to be received by the Administrative Agent
pursuant to Section 2.02(c) hereof. The Administrative Agent shall send a copy
of all Competitive Bids to the Company for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.02.
(e) The Company may in its sole and absolute discretion, subject only to
the provisions of this Section 2.02(e), accept or reject any Competitive Bid
referred to in Section 2.02(d) hereof. The Company shall notify the
Administrative Agent (by telephone or telecopier) whether and to what extent it
has decided to accept or reject any or all of the Competitive Bids referred to
in Section 2.02(d) hereof, (i) in the case of Eurodollar Loans, not later than
12:00 noon, New York City time, three Business Days before a proposed
Competitive Borrowing, (ii) in the case of Certificate of Deposit Loans, not
later than 12:00 noon, New York City time, two Business Days before a proposed
Competitive Borrowing, and (iii) in the case of Fixed Rate Loans, not later than
10:30 a.m., New York City time, on the Borrowing Date of the proposed
Competitive Borrowing; PROVIDED, HOWEVER, that (v) the failure by the Company to
give such notice shall be deemed to be a rejection of all the Competitive Bids
referred to in Section 2.02(d) hereof, (w) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company has
rejected a Competitive Bid made at a lower Competitive Bid Rate, (x) the
aggregate principal amount of the Competitive Borrowing to be made may not
exceed the principal amount of Competitive Loans requested by the Company
pursuant to the related Competitive Bid Request, (y) if the Company shall accept
Competitive Bids made at a particular Competitive Bid Rate but shall be
restricted by other conditions hereof from borrowing the aggregate principal
amount of Competitive Loans in respect of which Competitive Bids at such
Competitive Bid Rate have been made, then, to the extent of the aggregate
principal amount of the Competitive Borrowing to be made, the Company shall
accept a PRO RATA portion of each Competitive Bid
[NYCorp;1203895.1]
24
made at such Competitive Bid Rate based as nearly as possible on the respective
principal amounts of Competitive Loans for which such Competitive Bids were made
(PROVIDED that if the available principal amount of Competitive Loans to be so
allocated is not sufficient to enable Competitive Loans to be so allocated to
each such Competitive Bid Bank in a minimum principal amount of $5,000,000 and
in integral multiples of $1,000,000, the Company shall select the Competitive
Bid Banks to be allocated such Competitive Loans and shall round allocations up
or down to the next higher or lower multiple of $1,000,000 as it shall deem
appropriate), and (z) no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000. If telephonic notice of acceptance or
rejection of a Competitive Bid is given by the Company to the Administrative
Agent pursuant to the immediately preceding sentence, such notice shall be
confirmed in writing no later than (A) in the case of Eurodollar Loans or
Certificate of Deposit Loans, 5:00 p.m., New York City time, on the day such
notice is given, or (B) in the case of Fixed Rate Loans, 1:00 p.m., New York
City time, on the day such notice is given. Except as provided in Section
2.09(e)(i), Section 2.13(c)(iii), Section 3.03(c), and Section 4.03(b)(i)
hereof, a notice given by the Company pursuant to this Section 2.02(e) shall be
irrevocable.
(f) The Administrative Agent shall promptly notify by telecopier each of
the Competitive Bid Banks which has submitted a Competitive Bid whether or not
their Competitive Bids have been accepted (and if so, in what amount and at what
Competitive Bid Rate), and each successful Competitive Bid Bank shall thereupon
become bound to make the Competitive Loan in respect of which its Competitive
Bid has been accepted.
(g) A Competitive Borrowing shall not be made within five Business Days of
the Borrowing Date of any other Competitive Borrowing, unless the Company and
the Administrative Agent shall mutually agree otherwise.
(h) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Competitive Bid Bank, it shall submit such bid to the Company
one quarter of an hour earlier than the latest time at which the other
Competitive Bid Banks are required to submit their bids to the Administrative
Agent pursuant to Section 2.02(c) hereof.
SECTION 2.03. [Intentionally deleted.]
SECTION 2.04. [Intentionally deleted.]
SECTION 2.05. GENERAL TERMS RELATING TO THE LOANS. (a) Each Borrowing made
by the Company on any Borrowing Date shall be (i) in the case of Competitive
Loans, in an integral multiple of $1,000,000 and in a minimum aggregate
principal amount of $5,000,000 and (ii) in the case of Revolving Credit Loans,
in an integral
[NYCorp;1203895.1]
25
multiple of $10,000,000 and in a minimum aggregate principal amount of
$50,000,000. Competitive Loans shall be made by the Competitive Bid Banks in
accordance with Section 2.02(e) hereof, Revolving Credit Loans shall be made by
the Banks ratably in accordance with their respective Revolving Credit
Commitments on the Borrowing Date of the Revolving Credit Borrowing; PROVIDED,
HOWEVER, that the failure of any Bank to make any Loan shall not in itself
relieve any other Bank of its obligation to lend hereunder.
(b) Each Competitive Loan shall be a Eurodollar Loan, a Certificate of
Deposit Loan or a Fixed Rate Loan, and each Revolving Credit Loan shall be a
Eurodollar Loan, a Certificate of Deposit Loan, a Term Federal Funds Loan or an
Alternate Base Rate Loan, as the Company may request subject to and in
accordance with Section 2.01 or Section 2.02 hereof, as applicable. Each Bank
may at its option make any Eurodollar Loan by causing a foreign branch or
affiliate of such Bank to make such Loan; PROVIDED, HOWEVER, that (i) any
exercise of such option shall not affect the obligation of the Company to repay
such Loan to such Bank in accordance with the terms of the applicable Note, (ii)
such Bank shall promptly advise the Company of the exercise of such option, the
name and address of such foreign branch or affiliate and such other information
with respect to such branch or affiliate as the Company may reasonably request,
and (iii) the exercise of such option, as of the time of such exercise, shall
not materially increase the amounts which would have been payable by the Company
to such Bank under this Agreement and the Notes. Revolving Credit Loans of more
than one interest rate option may be outstanding at the same time; PROVIDED,
HOWEVER, that, unless the Administrative Agent and the Company shall otherwise
agree, the Company shall not be entitled to request any Revolving Credit Loan or
Competitive Loan which, if made, would result in an aggregate of more than ten
separate Revolving Credit Loans of any Bank and ten separate Competitive Loans
being outstanding hereunder at any one time. For purposes of the foregoing,
Revolving Credit Loans having different Interest Periods, regardless of whether
they commence on the same date, and Revolving Credit Loans having different
interest rate options, shall be considered separate Loans.
(c) Subject to Section 2.07 hereof, each Bank shall make available its
portion, as appropriate, of each Competitive Borrowing and Revolving Credit
Borrowing on the proposed Borrowing Date thereof by paying the amount required
to the Administrative Agent in New York, New York, in Dollars, in immediately
available funds not later than 11:00 a.m. (or 12:00 noon in the case of Fixed
Rate Loans or 2:00 p.m. in the case of Alternate Base Rate Loans), New York City
time, and the Administrative Agent shall by 1:00 p.m. (or 3:00 p.m. in the case
of Alternate Base Rate Loans), New York City time, credit the amounts so
received (or, subject to Section 2.05(d) hereof, its own funds but, in either
case, in Dollars in immediately available funds) to such account of the Company
as it shall designate in writing to the Administrative Agent or, if Loans are
not made on such date because any condition precedent to a Borrowing herein
specified shall not have been met, promptly return the amounts so received to
the respective Banks.
[NYCorp;1203895.1]
26
(d) Unless the Administrative Agent shall have been notified by a Bank
prior to the Borrowing Date of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the Loan to be made
on such Borrowing Date, the Administrative Agent may assume that such Bank has
made such proceeds available to the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to the Company a corresponding amount. If, and only
if, such notice is not given and such corresponding amount is not in fact made
available to the Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such amount on demand from such Bank (or, if such
Bank fails to pay such amount forthwith upon such demand, from the Company)
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Company and ending
on (but excluding) the date the Administrative Agent recovers such amount at a
rate per annum equal to (i) in the case of such Bank, the Federal Funds
Effective Rate and (ii) in the case of the Company, the applicable Interest Rate
in respect of such Loan.
SECTION 2.06. NOTES. The Competitive Loans made by each Competitive Bid
Bank shall be evidenced by a single Competitive Note duly executed on behalf of
the Company, dated the date of this Agreement, in substantially the form
attached hereto as Exhibit A-1 with the blanks appropriately filled, payable to
the order of such Competitive Bid Bank in a principal amount equal to the Total
Commitment. The Revolving Credit Loans made by each Bank shall be evidenced by a
single Revolving Credit Note duly executed on behalf of the Company, dated the
date of this Agreement, in substantially the form attached hereto as Exhibit A-2
with the blanks appropriately filled, payable to the order of such Bank in a
principal amount equal to the Revolving Credit Commitment of such Bank. The
outstanding principal balance of each Revolving Credit Loan and each Competitive
Loan, as evidenced by the relevant Note, shall be payable on the last day of the
Interest Period applicable to such Loan. Each Note shall bear interest from the
date thereof on the outstanding principal balance thereof as set forth in
Section 3.01 hereof. Each Bank shall, and is hereby authorized by the Company
to, endorse on the schedule attached to the relevant Note held by such Bank (or
on a continuation of such schedule attached to each such Note and made a part
thereof) an appropriate notation evidencing the Borrowing Date and amount of
each Loan of such Bank, each payment or prepayment (including any deemed
repayment pursuant to Section 2.07 hereof) of principal of any Loan and the
other information provided for on such schedule; PROVIDED, HOWEVER, that the
failure of any Bank to make such a notation or any error therein shall not in
any manner affect the obligation of the Company to repay the Loans made by such
Bank in accordance with the terms of the relevant Note.
SECTION 2.07. REFINANCINGS. The Company may refinance all or any part of
any Loan with a Loan or Loans of the same or a different type made pursuant to
Section 2.01 or Section 2.02 hereof; PROVIDED, HOWEVER, that (i) no Term Federal
Funds Loan may be refinanced with another Term Federal Funds Loan, and (ii) the
[NYCorp;1203895.1]
27
aggregate principal amount of the new Borrowings shall not exceed the aggregate
principal amount of the Loans being refinanced. Any Loan or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.06 hereof
with the proceeds of a new Borrowing hereunder; PROVIDED, HOWEVER, that with
respect to any new Borrowing which results in any Bank extending a Loan in a
different princi pal amount than such Bank extended in the Loan being refinanced
(E.G., the refinancing of a Revolving Credit Loan with a Competitive Advance
Loan), (i) if the principal amount extended by a Bank in a refinancing is
greater than the principal amount extended by such Bank in the Borrowing being
refinanced, such Bank shall pay such difference to the Administrative Agent for
distribution to the Banks described in (ii) below, and (ii) if the principal
amount extended by a Bank in the Borrowing being refinanced is greater than the
principal amount being extended by such Bank in the refinancing, the
Administrative Agent shall return the difference to such Bank out of amounts
received pursuant to (i) above. If the Company shall not have repaid any
Revolving Credit Loan on the last day of the Interest Period with respect
thereto and shall not have given notice with respect to the refinancing of such
Loan in accordance with the applicable provisions of Section 2.01 or Section
2.02 hereof, as appropriate, it shall be deemed to have elected to refinance
such Loan with a Revolving Credit Loan which is an Alternate Base Rate Loan to
be made on the last day of the Interest Period of the Loan so refinanced.
SECTION 2.08. FACILITY FEE. The Company agrees to pay to each Bank, through
the Administrative Agent, on each March 31, June 30, September 30 and December
31 (the first such payment to be made on December 31, 2000) and on the date on
which the Revolving Credit Commitment of such Bank shall be terminated or the
Maturity Date, whichever shall first occur, in immediately available funds, a
facility fee (a "FACILITY FEE") at a rate per annum equal to the Applicable
Facility Fee Percentage from time to time in effect on the average daily amount
of the Revolving Credit Commitment of such Bank, whether used or unused, during
the Calendar Quarter (or shorter period ending on December 31, 2000 or the
Maturity Date, as the case may be) then ended; PROVIDED, HOWEVER, that the
amount payable by the Company under this paragraph shall be reduced by any
amounts paid on account of the Facility Fees pursuant to Section 4.01 hereof.
All Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be, and shall commence to
accrue on the Effective Date.
SECTION 2.09. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a) If after
the date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law but with respect to which similarly situated banks generally
comply) (any such change, an "INCREASED COST CHANGE") (i) shall change the basis
of taxation of payments to any Bank of the principal of or interest on any
Eurodollar Loan, Term Federal Funds Loan, Certificate of Deposit Loan or Fixed
Rate Loan made by such Bank or any other fees or amounts payable hereunder
(other than (x) taxes imposed
[NYCorp;1203895.1]
28
on the overall net income of such Bank by the jurisdiction in which such Bank
has its principal or lending office or by any political subdivision or taxing
authority therein (or any tax which is enacted or adopted by such jurisdiction,
political subdivision or taxing authority as a direct substitute for any such
taxes) or (y) any tax, assessment, or other governmental charge that would not
have been imposed but for the failure of any Bank to comply with any
certification, information, documentation, or other reporting requirement), or
(ii) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, such Bank (except any such requirement reflected in the Base
CD Rate or the Certificate of Deposit Rate) or (iii) shall impose on such Bank
or on the London Interbank Market, the Certificate of Deposit market or the term
Federal funds market any other condition affecting this Agreement or any
Eurodollar Loan, Term Federal Funds Loan or Certificate of Deposit Loan made by
such Bank, and the result of any of the foregoing shall be to increase the cost
to such Bank of making or maintaining any Eurodollar Loan, Term Federal Funds
Loan or Certificate of Deposit Loan or to reduce the amount of any sum received
or receivable by such Bank hereunder (whether of principal, interest or
otherwise) in respect thereof by an amount deemed in good faith by such Bank to
be material, then, subject to Section 2.09(d) hereof, such additional amount or
amounts as will compensate such Bank for such increase or reduction will be paid
by the Company to such Bank as provided in Section 2.09(c) hereof. Any such
amount determined pursuant to this Section 2.09(a) shall be computed on the
basis of the net effect of any Increased Cost Changes incurred by such Bank from
time to time after the Effective Date of this Agreement.
(b) If any Bank shall have determined in good faith that the adoption or
issuance, after the date of this Agreement, of any applicable law, rule,
regulation, guideline, request or directive regarding capital adequacy (whether
or not having the force of law but with respect to which similarly situated
banks generally comply) (a "CAPITAL ADEQUACY RULE"), or any change therein, 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 (any such adoption, issuance or change of a Capital
Adequacy Rule being called a "CAPITAL ADEQUACY CHANGE"), or compliance therewith
by any Bank (or any lending office of such Bank or any corporation controlling
such Bank), has the net effect of reducing the rate of return on such Bank's
capital as a consequence of its commitment to make, or the making or maintaining
of, any Loans hereunder to a level below that which such Bank (or any such
corporation controlling such Bank) would have achieved but for such adoption,
change or compliance (taking into consideration such Bank's policies with
respect to capital adequacy and any Capital Adequacy Rule in effect as of the
date of this Agreement) by an amount deemed by such Bank to be material, then
from time to time the Company shall, subject to Section 2.09(d) hereof, pay to
such Bank such additional amount or amounts as will compensate such Bank for
such reduction as provided in Section 2.09(c) hereof; PROVIDED, HOWEVER, that to
the extent (i) a Bank shall increase its level of capital above the level
maintained by such Bank on
[NYCorp;1203895.1]
29
the date of this Agreement and there has not been a Capital Adequacy Change, or
(ii) there has been a Capital Adequacy Change and a Bank shall increase its
level of capital by an amount greater than the increase attributable (taking
into consideration the same variables taken into consideration in determining
the level of capital maintained by such Bank on the date of this Agreement) to
such Capital Adequacy Change, the Company shall not be required to pay any
amount or amounts under this Agreement with respect to any such increase in
capital. Thus, for example, a Bank which is "adequately capitalized" (as such
term or any similar term is used by any applicable bank regulatory agency having
authority with respect to such Bank) may not require the Company to make
payments in respect of increases in such Bank's level of capital made under the
circumstances described in clause (i) or (ii) above which improve its capital
position from "adequately capitalized" to "well capitalized" (as such term or
any similar term is used by any applicable bank regulatory agency having
authority with respect to such Bank).
(c) A certificate of each Bank setting forth such amount or amounts as
shall be necessary to compensate such Bank (or Participant pursuant to Section
10.06(b) hereof) as specified in paragraph (a) or (b) of this Section 2.09, as
the case may be, shall be delivered to the Company at the end of each Calendar
Quarter during which such Bank is an Affected Bank and upon the taking by the
Company in respect of such Bank of one of the actions described in paragraph
(e)(ii) or (e)(iv) of this Section 2.09 and shall, if submitted in good faith,
be conclusive absent manifest error; PROVIDED that any certificate delivered by
a Bank pursuant to this Sec tion 2.09(c) shall (i) in the case of a certificate
in respect of amounts payable pursuant to paragraph (a) of this Section 2.09,
set forth in reasonable detail the basis for and the calculation of such
amounts, and (ii) in the case of a certificate in respect of amounts payable
pursuant to paragraph (b) of this Section 2.09, (A) set forth at least the same
amount of detail in respect of the calculation of such amount as such Bank
provides in similar circumstances to other similarly situated borrowers from
such Bank, and (B) include a statement by such Bank that it has allocated to its
Revolving Credit Commitment or outstanding Loans a proportionately equal amount
of any reduction of the rate of return on such Bank's capital due to a Capital
Adequacy Rule as it has allocated to each of its other commitments to lend or to
each of its other outstanding loans that are affected similarly by such Capital
Adequacy Rule. The Company shall pay each Bank the amount shown as due on any
such certificate upon the earlier of (i) the date on which the Company takes one
of the actions in respect of any such Bank described in paragraph (e)(ii) or
(e)(iv) of this Section 2.09 and (ii) 30 days after receipt by the Company of
such certificate.
(d) Subject to the following provisions of this Section 2.09(d), failure on
the part of any Bank to demand compensation for any amounts payable pursuant to
para graphs (a) or (b) of this Section 2.09 with respect to any Interest Period
shall not constitute a waiver of such Bank's rights to demand compensation for
any such amounts with respect to any other Interest Period. In the case of any
Increased Cost Change which is given retroactive effect to a date prior to the
adoption thereof, a
[NYCorp;1203895.1]
30
Bank shall be entitled to seek compensation in respect thereof pursuant to para
graph (a) of this Section 2.09 for the period commencing on such retroactive
effective date and ending on the date on which the Company takes one of the
actions in respect of such Bank described in paragraph (e)(ii) or (e)(iv) of
this Section 2.09; PROVIDED, HOWEVER, that (i) if such Bank shall fail to notify
the Company within 30 days after the date of official promulgation of such
Increased Cost Change that it will demand such compensation, the period for
which such Bank shall be entitled to seek compensation in respect thereof shall
commence on the date which is 30 days prior to such Bank's notice that it will
demand compensation, and (ii) if any Increased Cost Change is given retroactive
effect to a date which is more than three months prior to the date of adoption
thereof, the Company's liability to pay compensation to such Bank in respect
thereof for any period prior to the date which is three months prior to the
adoption thereof shall, subject to the foregoing clause (i) of this proviso, be
equal to 50% of the amount required to compensate such Bank in respect of such
Increased Cost Change with respect to such period. In the case of any Increased
Cost Change which is given only prospective effect, a Bank shall be entitled to
seek compensation in respect thereof pursuant to paragraph (a) of this Section
2.09 for the period commencing on the later of (A) the date on which such
Increased Cost Change becomes effective and (B) the date 30 days prior to the
notice by such Bank that it will demand such compensation, and ending on the
date on which the Company takes one of the actions in respect of such Bank
described in paragraph (e)(ii) or (e)(iv) of this Section 2.09. In the case of
any Capital Adequacy Change, a Bank shall be entitled to seek compensation in
respect thereof pursuant to paragraph (b) of this Section 2.09 only with respect
to costs or reductions commencing on the later of (A) the date on which such
Capital Adequacy Rule becomes effective and (B) the date 45 days prior to the
notice by such Bank that it will demand such compensation, and ending on the
date on which the Company takes one of the actions in respect of such Bank
described in paragraph (e)(ii) or (e)(iv) of this Section 2.09.
(e) In the event that any Affected Bank shall have given notice that it is
entitled to claim compensation pursuant to this Section 2.09, the Company may
exercise any one or more of the following options:
(i) If any such claim for compensation relates to Loans then being
requested by the Company pursuant to a notice of Borrowing as provided in
this Article II (or, in the case of claims for compensation pursuant to
paragraph (g) of this Section 2.09, any such claim relates to Loans
outstanding during the Interest Period most recently ended and the Company
has requested Eurodollar Loans pursuant to such a notice of Borrowing), the
Company may, not later than 12:00 noon, New York City time, on the day
which is three (3) Business Days prior to the date on which the requested
Loans were to have been made, in the case of Eurodollar Loans, or two (2)
Business Days prior to the date on which the requested Loans were to have
been made, in the case of Certificate of Deposit Loans, or not later than
9:00 a.m., New York City time, on the date on which the requested Loans
were to have been made, in the case of Term Federal Funds
[NYCorp;1203895.1]
31
Loans, Fixed Rate Loans or Alternate Base Rate Loans, by giving notice (by
telephone (confirmed in writing promptly thereafter) or telecopier) to the
Administrative Agent (which notice the Administrative Agent shall transmit
to each of the Banks otherwise required to participate in the requested
Loans as soon as practicable thereafter) irrevocably withdraw such notice
of Borrowing.
(ii) The Company may request one or more of the non-Affected Banks to
take over all (but not part) of each or any Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and obligations hereunder. If
one or more Banks shall so agree in writing (in this Section 2.09(e)(ii),
in Section 2.13(c)(i) hereof, in Section 2.14(i) hereof and in Section
4.03(b)(ii) hereof, collectively called the "ASSENTING BANKS" and
individually called an "ASSENTING BANK") with respect to an Affected Bank,
(x) the Revolving Credit Commitment of each Assenting Bank and the
obligations of such Assenting Bank under this Agreement shall be increased
by its respective Allocable Share of the Revolving Credit Commitment and of
the obligations of such Affected Bank under this Agreement, and (y) each
Assenting Bank shall make Loans to the Company, according to such Assenting
Bank's respective Allocable Share, in an aggregate principal amount equal
to the outstanding principal amount of the Loan(s) of such Affected Bank,
on a date mutually acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such assumption by the
Assenting Bank and prepayment by the Company, such Affected Bank shall
cease to be a "Bank" for purposes of this Agreement and shall no longer
have any obligations hereunder (except as provided in Section 2.13(b),
Section 10.02 and Section 10.07 hereof).
(iii) Upon notice (by telephone (confirmed in writing promptly
thereafter) or telecopier) to the Administrative Agent (which shall advise
each Bank thereof as soon as practicable thereafter), the Company may
terminate the obligations of the Banks to make or maintain Loans which
result in the Affected Banks making a demand for compensation pursuant to
this Section 2.09 and, in such event, the Company shall refinance all such
Loans with Loans which, at the time of such refinancing, would not result
in such Banks making such demand for compensation, such refinancing to be
conducted in the manner contemplated by and pursuant to Section 2.07 or
Section 4.02 hereof.
(iv) (A) The Company may designate one or more Replacement Lenders
mutually acceptable to the Company and the Administrative Agent (whose
consent shall not be unreasonably withheld) to assume the Revolving Credit
Commitment and the obligations of any such Affected Bank hereunder, and to
purchase the outstanding Notes of such Affected Bank and such Affected
Bank's
[NYCorp;1203895.1]
32
rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank, for a purchase price equal
to the outstanding principal amount of the Loan(s) of such Affected Bank
plus all interest accrued and unpaid thereon and all other amounts owing to
such Affected Bank hereunder (including the amount which would be payable
to such Affected Bank pursuant to Section 3.04 hereof if the purchase of
its Notes constituted a prepayment thereof contemplated by clause (ii) of
the first sentence of Section 3.04 hereof), and upon such assumption and
purchase by the Replacement Lenders, each such Replacement Lender shall be
deemed to be a "Bank" for purposes of this Agreement and such Affected Bank
shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as provided in Section
2.13(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably withheld)
which shall upon a date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit Commitment and the
obligations of such Affected Bank under this Agreement and shall upon such
date make Loans to the Company in an aggregate principal amount equal to
the outstanding principal amount of the Loan(s) of such Affected Bank. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such Replacement Lenders making
such Loans and such prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.13(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative Agent
such documentation to evidence its status as a "Bank" hereunder as shall be
mutually acceptable to the Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving Credit Commitment, the
making of such Loans by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be deemed to have
occurred simultaneously for all purposes hereof.
(f) If in respect of any Interest Period for a Eurodollar Loan made by a
Bank under Section 2.01 hereof such Bank shall be required to maintain reserves
against "Eurocurrency liabilities" under Regulation D, the Company shall pay to
such Bank in accordance with this Section 2.09(f) an additional amount
representing such Bank's actual costs, if any, incurred during such Interest
Period as a result of the applicability of the foregoing reserves to such
Eurodollar Loan, which amount (i) shall be based on the effective rate at which
such reserve requirements are
[NYCorp;1203895.1]
33
imposed on such Bank for such Interest Period, (ii) shall be allocated to the
Company in no proportionately greater amount than such Bank would allocate such
costs to its other borrowers of Eurodollars to which such costs are applicable
if the provisions of this Section 2.09(f) applied to all such borrowers, and
(iii) in any event shall not exceed the product of the following for each day of
such Interest Period:
(A) the principal amount of the Eurodollar Loan outstanding on such day
made by such Bank to which such Interest Period relates; and
(B) a percentage equal to (x) the result obtained by dividing the
Eurodollar Rate applicable to such Eurodollar Loan by the number one minus
the maximum rate (expressed as a decimal) at which such reserve
requirements are imposed by the Board on such date, minus (y) the
Eurodollar Rate applicable to such Eurodollar Loan; and
(C) a fraction the numerator of which is one and the denominator of
which is 360.
To be entitled to compensation pursuant to this Section 2.09(f) in respect of
any Interest Period, such Bank must notify the Company of its demand for such
compensation within 30 days after the end of such Interest Period. A certificate
of such Bank setting forth in reasonable detail the basis for and the
calculation of such amount necessary to compensate such Bank pursuant to this
Section 2.09(f) shall be delivered to the Company with such notice and shall be
conclusive absent manifest error. In no event shall the Company be obligated to
make any payment to any Bank pursuant to this Section 2.09(f) if such payment
would result in a duplication of payments pursuant to this Section 2.09(f) and
any other provision of this Section 2.09.
(g) In the event that any Affected Bank shall have given notice that it is
entitled to claim compensation pursuant to paragraph (f) of this Section 2.09,
the Company may exercise any one or more of the options set forth in Section
2.09(e) hereof.
(h) In the event that the Company shall take any of the actions
contemplated by Section 2.09(e)(ii) or Section 2.09(e)(iv) hereof, the Company
shall provide replacement Notes to any Assenting Bank or any Replacement Lender,
as the case may be, to reflect the identity of, and/or the outstanding amount of
the Loans of, and/or the principal amount of such Notes issued to, such
Assenting Bank or such Replacement Lender, and Schedule I and Schedule II hereto
shall be deemed amended to reflect the addition of such Replacement Lender and
any increases or decreases in the Revolving Credit Commitments of the Affected
Banks and the Assenting Banks, as the case may be.
SECTION 2.10. PRO RATA TREATMENT. Except as permitted under Section 2.07,
Section 2.09, Section 2.13, Section 2.14 and Section 4.03 hereof, (i) each
payment
[NYCorp;1203895.1]
34
by the Company on account of any fees pursuant to Section 2.08 hereof shall be
made PRO RATA in accordance with the respective amounts due and owing, (ii) each
payment by the Company on account of principal of and interest on the Loans
shall be made PRO RATA according to the respective amounts due and owing, and
(iii) each prepayment on account of principal of the Loans shall be applied to
the Revolving Credit Loans and the Competitive Loans, as directed by the
Company, PRO RATA according to the respective amounts outstanding.
SECTION 2.11. PAYMENTS. Except for payments made directly to a Bank or
Banks under other provisions of this Agreement, the Company shall make each
payment hereunder and under any instrument delivered hereunder not later than
12:00 noon (New York City time) on the day when due, in Dollars, to the
Administrative Agent at its offices at One Liberty Plaza, New York, New York
10006, for the account of the Banks, in immediately available funds. The
Administrative Agent shall promptly distribute to each Bank its proper share of
each payment so received.
SECTION 2.12. PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made
hereunder shall be due on a day which is not a Business Day, then such payment
shall be made on the next succeeding Business Day (unless, with respect to a
payment relating to a Eurodollar Loan, such day would fall in another calendar
month, in which event payment shall be made on the next preceding Business Day).
SECTION 2.13. NET PAYMENTS. (a) All payments under this Agreement shall be
made without setoff or counterclaim and in such amounts as may be necessary in
order that all such payments (after deduction or withholding for or on account
of any present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political subdivision or
taxing authority thereof (herein collectively called the "Taxes") other than any
Taxes on or measured by the net income, net worth or shareholders' capital of a
Bank or a Participant pursuant to the income tax laws of the jurisdiction where
such Bank's principal or lending office is located or where such Participant's
principal or participating office is located) shall not be less than the amounts
otherwise specified to be paid under this Agreement and the Notes; PROVIDED that
if any Bank or any Participant fails to comply with the applicable provisions of
Section 10.06(g) hereof or paragraph (b) of this Section 2.13, as the case may
be, then, all such payments to such Bank or to any Bank which has sold a
participation pursuant to Section 10.06(b) hereof shall be net of any amounts
the Company is required to withhold under applicable law. For a Bank to be
entitled to compensation pursuant to this Section 2.13 (i) in the case of
compensation for United States Federal income or withholding Taxes in respect of
any Interest Period, such Bank must notify the Company within 30 days after the
end of such Interest Period and (ii) in the case of compensation for any United
States Tax other than a United States Federal income or withholding Tax in
respect of any Interest Period, such Bank must notify the Company within 30 days
after such Bank receives a written claim for such Tax from any government,
political subdivision or taxing
[NYCorp;1203895.1]
35
authority with respect to such Interest Period. A certificate as to any
additional amounts payable to any Bank under this Section 2.13 submitted to the
Company by such Bank shall show in reasonable detail the amount payable and the
calculations used to determine such amount and shall be conclusive and binding
upon the parties hereto, in the absence of manifest error. With respect to each
deduction or withholding for or on account of any Taxes, the Company shall
promptly (and in any event not later than 45 days thereafter) furnish to each
Bank such certificates, receipts and other documents as may be required (in the
reasonable judgment of such Bank) to establish any tax credit to which such Bank
may be entitled.
(b) Each Bank that is not incorporated under the laws of the United States
or any State thereof agrees to file with the Administrative Agent and the
Company, in duplicate, (i) on or before the later of (A) the Effective Date and
(B) the date such Bank becomes a Bank under this Agreement and (ii) thereafter,
for each third taxable year of such Bank during which interest or fees arising
under this Agreement are received, unless not legally able to do so as a result
of a change in United States income tax law enacted, or treaty promulgated,
after the date specified in the preceding clause (i), on or prior to the
immediately following due date of any payment by the Company hereunder (or at
any other time as required under United States income tax law), a properly
completed and executed copy of either Internal Revenue Service Form W-8BEN or
Internal Revenue Service Form W-8ECI or Internal Revenue Service Form W-9 and
any additional form necessary for claiming complete exemption from United States
withholding taxes (or such other form as is required to claim complete exemption
from United States withholding taxes), if and as provided by the Code,
regulations or other pronouncements of the United States Internal Revenue
Service, and the Bank warrants to the Company that the form so filed will be
true and complete; PROVIDED that such Bank's failure to complete and execute
such Form W-8BEN, or Form W-8ECI or Form W-9, as the case may be, and any such
additional form (or any successor form or forms) shall not relieve the Company
of any of its obligations under this Agreement, except as otherwise provided in
this Section 2.13. In the event that the Company is required, or has been
notified by the relevant taxing authority that it will be required, to either
withhold or make payment of Taxes with respect to any payments to be made by the
Company under this Agreement or the Notes to any transferor Bank and such
requirement or notice arises as a result of the sale of a participation by such
transferor Bank pursuant to Section 10.06(b) hereof, such transferor Bank shall,
upon request by the Company, accompanied by a certificate setting forth in
reasonable detail the basis for such request, provide to the Company copies of
all tax forms required to be provided to such transferor Bank pursuant to
Section 10.06(g) hereof by the Participant which purchased such participation.
The obligation of each transferor Bank to provide to the Company such tax forms
shall survive the termination of this Agreement or, if earlier, the termination
of the Revolving Credit Commitment of such transferor Bank.
[NYCorp;1203895.1]
35
(c) In the event that any Affected Bank shall have given notice that it is
entitled to claim compensation pursuant to this Section 2.13, the Company may at
any time thereafter exercise any one or more of the following options:
(i) The Company may request one or more of the non-Affected Banks to
take over all (but not part) of each or any Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and obligations hereunder. If
one or more Banks shall so agree in writing with respect to an Affected
Bank, (x) the Revolving Credit Commitment of each Assenting Bank and the
obligations of such Assenting Bank under this Agreement shall be increased
by its respective Allocable Share of the Revolving Credit Commitment and of
the obligations of such Affected Bank under this Agreement, and (y) each
Assenting Bank shall make Loans to the Company, according to such Assenting
Bank's respective Allocable Share, in an aggregate principal amount equal
to the outstanding principal amount of the Loan(s) of such Affected Bank,
on a date mutually acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon, and all other amounts owing to such Affected Bank
hereunder (including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such assumption by the
Assenting Banks and prepayment by the Company, such Affected Bank shall
cease to be a "Bank" for purposes of this Agreement and shall no longer
have any obligations hereunder (except as provided in Section 2.13(b),
Section 10.02 and Section 10.07 hereof).
(ii) (A) The Company may designate one or more Replacement Lenders
mutually acceptable to the Company and the Administrative Agent (whose
consent shall not be unreasonably withheld) to assume the Revolving Credit
Commitment and the obligations of any such Affected Bank hereunder, and to
purchase the outstanding Notes of such Affected Bank and such Affected
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank, for a purchase price equal
to the outstanding principal amount of the Loan(s) of such Affected Bank
plus all interest accrued thereon and all other amounts owing to such
Affected Bank hereunder (including the amount which would be payable to
such Affected Bank pursuant to Section 3.04 hereof if the purchase of its
Notes constituted a prepayment thereof contemplated by clause (ii) of the
first sentence of Section 3.04 hereof), and upon such assumption and
purchase by the Replacement Lenders, each such Replacement Lender shall be
declared to be a "Bank" for purposes of this Agreement and such Affected
Bank shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as provided in Section
2.13(b), Section 10.02 and Section 10.07 hereof).
[NYCorp;1203895.1]
37
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably withheld)
which shall upon a date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit Commitment and the
obligations of such Affected Bank under this Agreement and shall upon such
date make Loans to the Company in an aggregate principal amount equal to
the outstanding principal amount of the Loan(s) of such Affected Bank. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such Replacement Lenders making
such Loans and such prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.13(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative Agent
such documentation to evidence its status as a "Bank" hereunder as shall be
mutually acceptable to the Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving Credit Commitment, the
making of such Loans by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be deemed to have
occurred simultaneously for all purposes hereof.
(iii) If any such claim for compensation relates to Loans then being
requested by the Company pursuant to a notice of Borrowing as provided in
Article II hereof, the Company may, not later than 12:00 noon, New York
City time, on the day which is three (3) Business Days prior to the date on
which the requested Loans were to have been made, in the case of Eurodollar
Loans, or two (2) Business Days prior to the date on which the requested
Loans were to have been made, in the case of Certificate of Deposit Loans,
or not later than 9:00 a.m., New York City time, on the date on which the
requested Loans were to have been made, in the case of Term Federal Funds
Loans, Fixed Rate Loans or Alternate Base Rate Loans, by giving notice (by
telephone (confirmed in writing promptly thereafter) or telecopier) to the
Administrative Agent (which notice the Administrative Agent shall transmit
to each of the Banks otherwise required to participate in the requested
Loans as soon as practicable thereafter) irrevocably withdraw such notice
of Borrowing.
(d) The Company shall provide replacement Notes to any Assenting Bank or
any Replacement Lender, as the case may be, to reflect the identity of, and/or
the outstanding amount of the Loans of, and/or the principal amount of such
Notes issued to, such Assenting Bank or such Replacement Lender, and Schedule I
and Schedule II hereto shall be deemed amended to reflect the addition of such
Replacement Lender
[NYCorp;1203895.1]
38
and any increases or decreases in the Revolving Credit Commitments of the
Affected Banks and the Assenting Banks, as the case may be.
SECTION 2.14. FAILED AND CREDIT-IMPAIRED BANKS. If (a) a Bank shall be
adjudged a bankrupt or insolvent, or if a receiver of a Bank or of its property
shall be appointed, or if any public officer shall take charge or control of a
Bank or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or if a Bank shall default in respect of its
obligation to make Loans hereunder, (b) any of Moody's, S&P or Thomson
BankWatch, Inc. shall assign a rating to the senior, unsecured,
non-credit-enhanced, long-term indebtedness for borrowed money of a Bank which
shall be classified by such rating agency as below investment grade, or, in the
case of Thomson BankWatch, Inc., such rating shall be below C/D, or (c) the
Company shall deliver to the Administrative Agent a notice stating that, as to
any Bank which has senior, unsecured, non-credit-enhanced, long-term
indebtedness for borrowed money which is not rated by any of the rating agencies
referred to in the preceding clause (b), that it reasonably believes such Bank
will become subject to any of the events referred to in clause (a) above or
become unable to perform its obligations as a Bank hereunder, then the Company
may at any time thereafter, subject to applicable law, exercise any one or more
of the following options:
(i) The Company may request one or more of the non-Affected Banks to
take over all (but not part) of each or any Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and obligations hereunder. If
one or more Banks shall so agree in writing with respect to an Affected
Bank, (x) the Revolving Credit Commitment of each Assenting Bank and the
obligations of such Assenting Bank under this Agreement shall be increased
by its respective Allocable Share of the Revolving Credit Commitment and of
the obligations of such Affected Bank under this Agreement, and (y) each
Assenting Bank shall make Loans to the Company, according to such Assenting
Bank's respective Allocable Share, in an aggregate principal amount equal
to the outstanding principal amount of the Loan(s) of such Affected Bank,
on a date mutually acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(excluding, in the case of an event referred to in clause (a) of Section
2.14, any amounts payable pursuant to Section 3.04 hereof in connection
with such prepayment), and, upon such assumption by the Assenting Bank and
prepayment by the Company, such Affected Bank shall cease to be a "Bank"
for purposes of this Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.13(b), Section 10.02 and Section
10.07 hereof).
(ii) (A) The Company may designate one or more Replacement Lenders
mutually acceptable to the Company and the Administrative Agent (whose
consent shall not be unreasonably withheld) to assume the Revolving Credit
[NYCorp;1203895.1]
39
Commitment and the obligations of any such Affected Bank hereunder, and to
purchase the outstanding Notes of such Affected Bank and such Affected
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank, for a purchase price equal
to the outstanding principal amount of the Loan(s) of such Affected Bank
plus all interest accrued and unpaid thereon and all other amounts owing to
such Affected Bank hereunder (including the amount which would be payable
to such Affected Bank pursuant to Section 3.04 hereof if the purchase of
its Notes constituted a prepayment thereof contemplated by clause (ii) of
the first sentence of Section 3.04 hereof), and upon such assumption and
purchase by the Replacement Lenders, each such Replacement Lender shall be
deemed to be a "Bank" for purposes of this Agreement and such Affected Bank
shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as provided in Section
2.13(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably withheld)
which shall upon a date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit Commitment and the
obligations of such Affected Bank under this Agreement and shall upon such
date make Loans to the Company in an aggregate principal amount equal to
the outstanding principal amount of the Loan(s) of such Affected Bank. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such Replacement Lenders making
such Loans and such prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.13(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative Agent
such documentation to evidence its status as a "Bank" hereunder as shall be
mutually acceptable to the Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving Credit Commitment, the
making of such Loans by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be deemed to have
occurred simultaneously for all purposes hereof.
The Company shall provide replacement Notes to any Assenting Bank or any
Replacement Lender, as the case may be, to reflect the identity of, and/or the
outstanding amount of the Loans of, and/or the principal amount of such Notes
issued to, such Assenting Bank or such Replacement Lender, and Schedule I and
Schedule II hereto shall be deemed amended to reflect the addition of such
Replacement Lender
[NYCorp;1203895.1]
40
and any increases or decreases in the Revolving Credit Commitments of the
Affected Banks and the Assenting Banks, as the case may be.
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. INTEREST ON LOANS. (a) Subject to the provisions of Section
3.02 hereof, each Eurodollar Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to the Eurodollar Rate for the Interest Period in effect for such
Loan plus (i) in the case of each Competitive Loan, the Margin specified by a
Bank with respect to such Loan in its Competitive Bid submitted pursuant to
Section 2.02(c) hereof, and (ii) in the case of each Revolving Credit Loan, the
Applicable Margin. Interest on each Eurodollar Loan shall be payable on each
Interest Payment Date applicable thereto.
(b) Subject to the provisions of Section 3.02 hereof, each Certificate of
Deposit Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the
Certificate of Deposit Rate for the Interest Period in effect for such Loan plus
(i) in the case of each Competitive Loan, the Margin specified by a Bank with
respect to such Loan in its Competitive Bid submitted pursuant to Section
2.02(c) hereof, and (ii) in the case of each Revolving Credit Loan, the
Applicable Margin. Interest on each Certificate of Deposit Loan shall be payable
on each Interest Payment Date applicable thereto.
(c) Subject to the provisions of Section 3.02 hereof, each Alternate Base
Rate Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed (i) over a year of 365 or 366 days, as the case
may be, if the Alternate Base Rate is based on the Prime Rate, and (ii) over a
year of 360 days if the Alternate Base Rate is based on the Base CD Rate or the
Federal Funds Effective Rate) equal to the Alternate Base Rate plus the
Applicable Margin. Interest on each Alternate Base Rate Loan shall be payable on
each Interest Payment Date applicable thereto.
(d) Subject to the provisions of Section 3.02 hereof, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Competitive Bid Bank making such Loan and accepted by
the Company pursuant to Section 2.02 hereof. Interest on each Fixed Rate Loan
shall be payable on each Interest Payment Date applicable thereto.
(e) Subject to the provisions of Section 3.02 hereof, each Term Federal
Funds Loan shall bear interest at a rate per annum (computed on the basis of the
actual
[NYCorp;1203895.1]
41
number of days elapsed over a year of 360 days) equal to the Term Federal Funds
Rate for the Interest Period in effect for such Loan plus the Applicable Margin.
Interest on each Term Federal Funds Loan shall be payable on each Interest
Payment Date applicable thereto.
(f) Interest on each Loan shall accrue from and including the first day of
the Interest Period with respect to such Loan to but excluding the last day of
such Interest Period.
SECTION 3.02. INTEREST ON OVERDUE AMOUNTS. If the Company shall default in
the payment when due of the principal of any Loan or of any other amount due
hereunder (other than any amount not paid as a result of a Bank Funding Default
for the period from which such Bank Funding Default commences to the date on
which the failure to pay such amount due would become an Event of Default), the
Company shall on demand from time to time pay interest, to the extent permitted
by law, on such defaulted amount from the date such amount shall have become due
up to (but not including) the date of actual payment thereof (x) for other than
Eurodollar Loans, accruing on a daily basis, at a rate per annum (computed on
the basis of a year of 365 or 366 days, as the case may be, if the Alternate
Base Rate is based on the Prime Rate or on the basis of a year of 360 days if
the Alternate Base Rate is based on the Base CD Rate or the Federal Funds
Effective Rate) which is equal to the sum of (i) the Alternate Base Rate from
time to time in effect, plus (ii) the Applicable Margin plus (iii) two percent
(2%) per annum, or (y) for Eurodollar Loans, accruing on a daily basis at a rate
per annum (computed on the basis of a year of 360 days) which is two and
one-half percent (2-1/2%) per annum in excess of the rate determined by the
Administrative Agent two (2) Business Days prior to the beginning of periods of
one day, one week, one month, two months or three months (as the Administrative
Agent shall select in its sole discretion from time to time during the
continuation of such default), the first of which periods shall commence on the
date such amount shall have become due, as the rate at which the Administrative
Agent is offered deposits in Dollars as of 11:00 a.m., London time, by prime
banks in the London Interbank Eurodollar market for delivery on the first day of
any such period and for the approximate number of days comprised therein, in an
amount comparable to the aggregate amount due. If the Company shall default in
the payment when due of the principal of any Loan or of any other amount due
hereunder as a result of a Bank Funding Default, for the period from which such
Bank Funding Default commences to the date on which the failure to pay such
amount due would become an Event of Default or, if earlier, to (but not
including) the date of actual payment thereof, the Company shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount at a rate per annum equal to (x) for other than Eurodollar Loans, the
Alternate Base Rate (computed on the basis of a year of 365 or 366 days, as the
case may be, if the Alternate Base Rate is based on the Prime Rate or on the
basis of a year of 360 days if the Alternate Base Rate is based on the Base CD
Rate or the Federal Funds Effective Rate), or (y) for any Eurodollar Loan, until
the last day of the Interest Period therefor, at the Interest Rate applicable to
such
[NYCorp;1203895.1]
42
Eurodollar Loan determined in accordance with the provisions of Section 3.01(a)
hereof, and thereafter, in accordance with clause (x) above; PROVIDED, HOWEVER,
that interest payable by the Company for the period set forth above on defaulted
amounts not paid to a Bank as a result of such Bank's Bank Funding Default shall
be payable at a rate per annum equal to the lesser of (i) the Interest Rate that
would have been applicable to the Loan or Loans that were the subject of such
Bank's Bank Funding Default, and (ii) the applicable Interest Rate set forth in
clause (x) or (y) above, as the case may be.
SECTION 3.03. INABILITY TO DETERMINE CERTIFICATE OF DEPOSIT RATE, TERM
FEDERAL FUNDS RATE OR EURODOLLAR RATE. (a) In the event, and on each occasion,
that the Company has accepted a Competitive Bid with respect to a Certificate of
Deposit Loan and, on or before the date on which the Certificate of Deposit Rate
for the Interest Period relating to such Loan is to be determined, the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the parties hereto in the absence of manifest error)
that such Certificate of Deposit Rate cannot be determined as a result of the
inability of the Reference Banks to obtain sufficient bids in accordance with
the terms of the definition of Fixed Certificate of Deposit Rate, the
Administrative Agent shall immediately give notice of such determination by
telephone (confirmed by telecopier) to the Company and the Competitive Bid Bank
which submitted such Competitive Bid. In the event of any such determination,
(i) any such request by the Company for a Competitive Bid with respect to a
Certificate of Deposit Loan shall be deemed to be a request for an Alternate
Base Rate Loan, and (ii) the Company may, not later than 9:00 a.m., New York
City time, on the date on which such Loans were to have been made, by giving
notice (by telephone (confirmed in writing promptly thereafter) or telecopier)
to the Administrative Agent (which notice the Administrative Agent shall
transmit to each of the Banks as soon as practicable thereafter) irrevocably
withdraw such notice of Borrowing. Each such determination shall be conclusive
and binding upon the parties hereto in the absence of manifest error.
(b) In the event, and on each occasion, that the Company has submitted a
Revolving Credit Borrowing Request for a Certificate of Deposit Loan or a Term
Federal Funds Loan and, on or before the date on which the Certificate of
Deposit Rate or Term Federal Funds Rate, as the case may be, for such Loan is to
be determined, the Administrative Agent shall have determined that such
Certificate of Deposit Rate or Term Federal Funds Rate, as the case may be,
cannot be determined as a result of the inability of the Reference Banks to
obtain sufficient bids or quotations, respectively, in accordance with the terms
of the definition of Fixed Certificate of Deposit Rate or Term Federal Funds
Rate, as the case may be, or the Required Banks shall determine that the
Certificate of Deposit Rate or Term Federal Funds Rate, as the case may be, for
such Loan will not adequately and fairly reflect the cost to such Banks of
making or maintaining such Loan during such Interest Period, the Administrative
Agent, or, as the case may be, the Required Banks, acting through the
Administrative Agent, shall forthwith give notice thereof (by telephone
[NYCorp;1203895.1]
43
(confirmed in writing promptly thereafter) or telecopier) to the Company. In the
event of any such determination, (i) any such request by the Company for a
Certificate of Deposit Loan or Term Federal Funds Loan, as the case may be,
shall be deemed to be a request for an Alternate Base Rate Loan, and (ii) the
Company may, not later than 9:00 a.m., New York City time, on the date on which
such Loans were to have been made, by giving notice (by telephone (confirmed in
writing promptly thereafter) or telecopier) to the Administrative Agent (which
notice the Administrative Agent shall transmit to each of the Banks as soon as
practicable thereafter) irrevocably withdraw such notice of Borrowing. Each such
determination shall be conclusive and binding upon the parties hereto in the
absence of manifest error.
(c) In the event, and on each occasion, that the Company has accepted a
Competitive Bid with respect to a Eurodollar Loan and, on or before the date on
which the Eurodollar Rate for the Interest Period relating to such Loan is to be
determined, the Administrative Agent shall have determined that by reason of
circumstances affecting the London Interbank Eurodollar market or affecting the
position of any Reference Bank in such market, adequate and fair means do not
exist for ascertaining the Interest Rate applicable to such Loan during such
Interest Period, then, and in any such event, the Competitive Bid Request
submitted by the Company with respect to such Loan and the Competitive Bid
submitted by the Competitive Bid Bank and accepted by the Company with respect
to such Loan shall both be deemed to be rescinded and of no force and effect
whatsoever. The Administrative Agent shall immediately give notice of such
determination by telephone (confirmed by telecopier) to the Company and to such
Competitive Bid Bank. Each such determination by the Administrative Agent shall
be conclusive and binding upon the parties hereto in the absence of manifest
error.
(d) In the event, and on each occasion, that the Company has submitted a
Revolving Credit Borrowing Request for a Eurodollar Loan and, on or before the
date on which the Eurodollar Rate for the Interest Period relating to such Loan
is to be determined, the Administrative Agent shall have determined that by
reason of circumstances affecting the London Interbank Eurodollar market or
affecting the position of any Reference Bank in such market, adequate and fair
means do not exist for ascertaining the Interest Rate applicable to such Loan
during such Interest Period, then, and in any such event, such Revolving Credit
Borrowing Request shall be deemed to be rescinded and of no force and effect
whatsoever. The Administrative Agent shall immediately give notice of such
determination by telephone (confirmed by telecopier) to the Company and the
Banks. Each such determination by the Administrative Agent shall be conclusive
and binding upon the parties hereto in the absence of manifest error.
SECTION 3.04. INDEMNITY. The Company shall compensate each Bank, upon
written request by such Bank (which request shall set forth the basis for
requesting such amounts), for all reasonable losses and expenses in respect of
any interest paid
[NYCorp;1203895.1]
44
by such Bank (or its lending branch or affiliate) to lenders of funds borrowed
by it or deposited with it to make or maintain its Loans (other than Alternate
Base Rate Loans) which such Bank (or its lending branch or affiliate) may
sustain, to the extent not otherwise compensated for hereunder and not mitigated
by the reemployment of such funds: (i) if for any reason (other than a default
by such Bank) a Borrowing of any Loan does not occur on a date specified
therefor in a notice of Borrowing given pursuant to Article II hereof, (ii) if
any prepayment (other than a prepayment under Section 2.14(i) resulting from an
event referred to in clause (a) of Section 2.14 hereof) or repayment of its
Loans (other than Alternate Base Rate Loans) occurs on a date which is not the
expiration date of the relevant Interest Period, (iii) if any prepayment of its
Loans (other than Alternate Base Rate Loans) is not made on any date specified
in a notice of prepayment given by the Company (regardless of whether such
notice may be revoked under Section 4.01 and is revoked in accordance
therewith), or (iv) as a consequence of any default by the Company under this
Agreement. Without prejudice to the foregoing, the Company shall indemnify each
Bank against any loss or expense which such Bank (or its lending branch or
affiliate) may sustain or incur as a consequence of the default by the Company
in payment of principal of or interest on any Loan (other than any Alternate
Base Rate Loan), or any part thereof, or of any amount due under this Agreement,
including, but not limited to, any premium or penalty incurred by such Bank (or
its lending branch or affiliate), in respect of funds borrowed by it or
deposited with it for the purpose of making or maintaining such Loan (other than
any Alternate Base Rate Loan), as determined by such Bank in the exercise of its
sole discretion. A certificate as to any such loss or expense (including
calculations, in reasonable detail, showing how such Bank computed such loss or
expense) shall be promptly submitted by such Bank to the Company (with a copy to
the Administrative Agent) and shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
SECTION 3.05. RATE DETERMINATION CONCLUSIVE. The applicable Interest Rate
for each Interest Period with respect to each Loan (other than any Fixed Rate
Loan) shall be determined by the Administrative Agent and shall be conclusive
and, subject to Section 3.03 and Section 4.03 hereof, binding upon the parties
hereto, in the absence of manifest error. The Administrative Agent shall, at the
request in writing of the Company or any Bank, deliver to the Company or such
Bank a statement showing the computations used by the Administrative Agent in
determining any Interest Rate in respect of the Loans payable by the Company.
ARTICLE IV
REDUCTION OR TERMINATION OF THE
REVOLVING CREDIT COMMITMENTS AND PREPAYMENTS
SECTION 4.01. REDUCTION OR TERMINATION OF THE TOTAL COMMITMENT. The Company
may, from time to time on at least five (5) Business Days' prior notice (by
[NYCorp;1203895.1]
45
telephone (confirmed in writing promptly thereafter) or telecopier) received by
the Administrative Agent (which shall advise each Bank thereof as soon as
practicable thereafter), permanently reduce the Total Commitment (such reduction
shall reduce each Bank's Revolving Credit Commitment ratably according to its
respective Proportional Share of the amount of such reduction and Schedule I
hereto shall be deemed amended to reflect the reduction in such Revolving Credit
Commitments) but only upon (a) repayment of that portion of the aggregate unpaid
principal amount of all Revolving Credit Loans which, together with the
aggregate principal amount of all Competitive Loans then outstanding, exceeds
the amount of the Total Commitment as so reduced (such repayment to be applied
to each Bank's Revolving Credit Loans in the same proportion as its Revolving
Credit Commitment is reduced), and (b) payment to the Administrative Agent, for
the ratable account of the Banks, of the Facility Fees on the portion of the
Total Commitment so reduced which have accrued through the date of such
reduction; PROVIDED, HOWEVER, the Company may not so reduce the Total Commitment
at any time to an amount less than the aggregate principal amount of all
Competitive Loans then outstanding. Any such reduction shall be in an aggregate
amount of $50,000,000 or an integral multiple of $10,000,000 in excess of
$50,000,000. The Company may at any time, on like notice, terminate the Total
Commitment (and each Bank's Revolving Credit Commitment) upon payment in full of
all Loans and the accrued interest thereon and the Facility Fees accrued through
the date of such termination; PROVIDED, HOWEVER, that the Company may not
terminate the Total Commitment at any time that Competitive Loans are then
outstanding. Each notice delivered by the Company pursuant to this Section 4.01
shall be irrevocable; PROVIDED that a notice of termination of the Total
Commitment delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.
SECTION 4.02. PREPAYMENTS. (a) The Company may from time to time, upon at
least (i) two (2) Business Days' prior notice (in the event such notice pertains
to Domestic Loans) or (ii) three (3) Business Days' prior notice (in the event
such notice pertains to Eurodollar Loans) (by telephone (confirmed in writing
promptly thereafter) or telecopier) received by the Administrative Agent (prior
to 12:00 noon, New York City time, in the event such notice pertains to Domestic
Loans) (which shall advise each Bank thereof as soon as practicable thereafter),
prepay any Revolving Credit Borrowing in whole or in part, without, except as
provided in Section 3.04 hereof, premium or penalty (such prepayment to be PRO
RATA to the Banks according to the respective unpaid principal amounts of the
Revolving Credit Notes held by them); PROVIDED, HOWEVER, that each such
prepayment shall be in an aggregate amount of $50,000,000 or an integral
multiple of $10,000,000 in excess of $50,000,000. Except as provided in Section
2.09(e)(ii), Section 2.09(e)(iii), Section 2.13(c)(i), Section 2.14(i), Section
4.03(a), Section 4.03(b)(ii) or Section 4.03(b)(iii) hereof, the Company shall
not have the right to prepay any Competitive Borrowing.
[NYCorp;1203895.1]
46
(b) Each notice of prepayment shall specify the Borrowing to be prepaid,
the prepayment date and the aggregate principal to be prepaid, and shall be
irrevocable; PROVIDED that, if a notice of prepayment is given in connection
with a conditional notice of termination of the Total Commitment as contemplated
by Section 4.01, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 4.01. All prepayments under
this Section 4.02 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of prepayment.
SECTION 4.03. REQUIRED TERMINATION OF THE REVOLVING CREDIT COMMITMENTS AND
PREPAYMENT. (a) In the event that at any time any Affected Bank shall have
reasonably determined in good faith (which determination shall be conclusive and
binding upon the parties hereto, in the absence of manifest error) that the
making or continuation of its Revolving Credit Commitment to make Eurodollar
Loans or its Eurodollar Loans have become unlawful under any applicable law,
governmental rule, requirement, regulation, guideline or order, then, and in any
such event, such Affected Bank shall as soon as practicable give notice (by
telephone (confirmed in writing promptly thereafter) or telecopier) to the
Company and to the Administrative Agent (which shall transmit such notice to
each of the Banks as soon as practicable thereafter), of such determination.
Thereupon, the Revolving Credit of such Affected Bank and the obligation of such
Affected Bank to make or maintain its Loan(s) shall be terminated and the
Company shall forthwith, and in any event no later than the earlier of (x) the
next succeeding Interest Payment Date with respect to such Loan(s) or (y) ten
(10) days after receipt of notice from such Affected Bank under this Section
4.03(a), prepay the outstanding Loan(s) of such Affected Bank without premium or
penalty, together with all interest accrued thereon and all other amounts owing
to such Affected Bank hereunder (including any amounts payable pursuant to
Section 3.04 hereof in connection with such prepayment).
(b) In lieu of prepaying the Loan(s) of the Affected Bank as required by
Section 4.03(a) hereof, the Company may exercise any one or more of the
following options:
(i) If such determination by an Affected Bank relates to Eurodollar
Loans then being requested by the Company pursuant to a notice of Borrowing
as provided in Sections 2.01, 2.02 or 2.07 hereof, the Company may, not
later than 9:00 a.m., New York City time, on the day which is three (3)
Business Days prior to the date on which such Loans were to have been made
by giving notice (by telephone (confirmed in writing promptly thereafter)
or telecopier) to the Administrative Agent (which shall transmit such
notice to each of the Banks otherwise required to participate in such Loans
as soon as practicable thereafter) irrevocably withdraw such notice of
Borrowing.
(ii) The Company may request one or more of the non-Affected Banks to
take over all (but not part) of each Affected Bank's then outstanding
Loan(s)
[NYCorp;1203895.1]
47
and to assume all (but not part) of each Affected Bank's Revolving Credit
Commitment and obligations hereunder. If one or more Banks shall so agree
in writing with respect to an Affected Bank, (x) the Revolving Credit
Commitment of each Assenting Bank and the obligations of such Assenting
Bank under this Agreement shall be increased by its respective Allocable
Share of the Revolving Credit Commitment and of the obligations of such
Affected Bank under this Agreement, and (y) each Assenting Bank shall make
Loans to the Company, according to such Assenting Bank's respective
Allocable Share, in an aggregate principal amount equal to the outstanding
principal amount of the Loan(s) of such Affected Bank, on a date mutually
acceptable to the Assenting Banks, such Affected Bank and the Company. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon, and all other amounts owing to such Affected Bank
hereunder (including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such assumption by the
Assenting Banks and prepayment by the Company, such Affected Bank shall
cease to be a "Bank" for purposes of this Agreement and shall no longer
have any obligations hereunder (except as provided in Section 2.13(b),
Section 10.02 and Section 10.07 hereof). Any such prepayment shall occur
prior to the time any prepayment pursuant to Section 4.03(a) hereof is
required to be made.
(iii) Upon notice (by telephone (confirmed in writing promptly
thereafter) or telecopier) to the Administrative Agent (which shall advise
each Bank thereof as soon as practicable thereafter), the Company may
terminate the obligations of the Banks to make or maintain Loans as
Eurodollar Loans and, in such event, the Company shall, prior to the time
any prepayment pursuant to Section 4.03(a) hereof is required to be made,
refinance all of the Eurodollar Loans with Domestic Loans, or prepay such
Eurodollar Loans, in the manner contemplated by and pursuant to Section
2.07 or Section 4.02 hereof, respectively.
(iv) (A) The Company may designate one or more Replacement Lenders
mutually acceptable to the Company and the Administrative Agent (whose
consent shall not be unreasonably withheld) to assume the Revolving Credit
Commitment and the obligations of each such Affected Bank hereunder, and to
purchase, prior to the time any prepayment pursuant to Section 4.03(a)
hereof is required to be made, the outstanding Notes of such Affected Bank
and such Affected Bank's rights hereunder and with respect thereto, without
recourse upon, or warranty by, or expense to, such Affected Bank, for a
purchase price equal to the outstanding principal amount of the Loan(s) of
such Affected Bank plus all interest accrued thereon and all other amounts
owing to such Affected Bank hereunder (including the amount which would be
payable to such Affected Bank pursuant to Section 3.04 hereof if the
purchase of its Notes constituted a prepayment thereof contemplated by
clause (ii) of the first sentence of Section 3.04 hereof), and upon such
assumption and purchase by the Replace-
[NYCorp;1203895.1]
48
ment Lenders, each such Replacement Lender shall be deemed to be a "Bank"
for purposes of this Agreement and such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section 2.13(b), Section 10.02
and Section 10.07 hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably withheld)
which shall upon a date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit Commitment and the
obligations of such Affected Bank under this Agreement and shall upon such
date make Loans to the Company in an aggregate principal amount equal to
the outstanding principal amount of the Loan(s) of such Affected Bank. The
proceeds of such Loans, together with funds of the Company, shall be used
to prepay the Loan(s) of such Affected Bank, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such Replacement Lenders making
such Loans and such prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.13(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative Agent
such documentation to evidence its status as a "Bank" hereunder as shall be
mutually acceptable to the Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving Credit Commitment, the
making of such Loans by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be deemed to have
occurred simultaneously for all purposes hereof.
The Company shall provide replacement Notes to any Assenting Bank or any
Replacement Lender, as the case may be, to reflect the identity of, and/or the
outstanding amount of the Loans of, and/or the principal amount of such Notes
issued to, such Assenting Bank or such Replacement Lender, and Schedule I and
Schedule II hereto shall be deemed amended to reflect the addition of such
Replacement Lender and any increases or decreases in the Revolving Credit
Commitments of the Affected Banks and the Assenting Banks, as the case may be.
[NYCorp;1203895.1]
49
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Banks, the Agents and the Managing Agents as
follows:
(a) COMPANY'S ORGANIZATION; CORPORATE POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware; the Company is duly qualified or
licensed and in good standing as a foreign corporation authorized to do
business in each other jurisdiction where, because of the nature of its
activities or properties, such qualification or licensing is required,
except for such jurisdictions where the failure to be so qualified or
licensed will not materially adversely affect the financial condition,
business or operations of the Company and its Consolidated Subsidiaries,
taken as a whole, or prevent the enforcement of contracts to which the
Company is a party; and the Company has all requisite corporate power and
authority (i) to own its assets and to carry on the business in which it is
engaged, (ii) to execute, deliver and perform its obligations under this
Agreement and the Notes, (iii) to borrow in the manner and for the purpose
contemplated by this Agreement, (iv) to issue the Notes in the manner and
for the purpose contemplated by this Agreement, and (v) to execute, deliver
and perform its obligations under all other agreements and instruments
executed and delivered by the Company pursuant to or in connection with
this Agreement.
(b) DOMESTIC SPECIFIED SUBSIDIARIES; ORGANIZATION; CORPORATE POWER. As
of the Effective Date, each domestic Specified Subsidiary is a corporation
or other entity (as the case may be) duly incorporated or formed, validly
existing and in good standing under the laws of the state or jurisdiction
of its incorporation or formation; and, as of the Effective Date, each
domestic Specified Subsidiary has all requisite corporate power and
authority to own its assets and to carry on the business in which it is
engaged.
(c) COMPANY'S CORPORATE AUTHORITY; NO CONFLICT. The execution and
delivery by the Company of this Agreement and the Notes, the performance by
the Company of its obligations under this Agreement and the Notes, the
Borrowings by the Company in the manner and for the purpose contemplated by
this Agreement, the issuance by the Company of the Notes in the manner and
for the purpose contemplated by this Agreement, the execution and delivery
by the Company of all other agreements and instruments which shall have
been executed and delivered by the Company pursuant hereto or in connection
here with, and the performance by the Company of its obligations under all
other agreements and instruments which shall have been executed and
delivered by the Company pursuant hereto or in connection herewith, have
been duly authorized
[NYCorp;1203895.1]
50
by all necessary corporate action (including any necessary stockholder
action) on the part of the Company, and do not and will not (i) violate any
provision of any law, rule or regulation (including, without limitation,
Regulation U and Regulation X) presently in effect having applicability to
the Company (or any Specified Subsidiary), or of any order, writ, judgment,
decree, determination or award (which is, individually or in the aggregate,
material to the consolidated financial condition, business or operations of
the Company and its Consolidated Subsidiaries) presently in effect having
applicability to the Company (or any Specified Subsidiary) or of the
charter or by-laws of the Company (or any Specified Subsidiary), or (ii)
subject to the Company's compliance with any applicable covenants
pertaining to its incurrence of unsecured indebtedness, result in a breach
of or constitute a default under any indenture or loan or credit agreement,
or result in a breach of or constitute a default under any other agreement
or instrument (which is, individually or in the aggregate, material to the
consolidated financial condition, business or operations of the Company and
its Consolidated Subsidiaries), to which the Company or any Specified
Subsidiary is a party or by which the Company or any Specified Subsidiary
or its respective properties may be bound or affected, or (iii) result in,
or require, the creation or imposition of any Lien of any nature upon or
with respect to any of the properties now owned or hereafter acquired by
the Company (other than any right of setoff or banker's lien or attachment
that any Bank or other holder of a Note may have under applicable law), and
the Company is not in default under or in violation of its charter or
by-laws.
(d) VALID AND BINDING OBLIGATIONS OF THE COMPANY. This Agreement
constitutes, and (when executed and delivered by the Company) the Notes and
each other agreement or instrument executed and delivered by the Company
pursuant hereto or in connection herewith will each constitute, the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief (regardless of
whether such enforceability is considered in a proceeding in equity or at
law).
(e) COMPANY'S FINANCIAL CONDITION. The Company's audited consolidated
financial statements as at December 31, 1999, copies of which have been
furnished to each Bank, have been prepared in conformity with generally
accepted accounting principles applied on a basis consistent with that of
the preceding fiscal year and fairly present the consolidated financial
condition of the Company and its Consolidated Subsidiaries as at such date
and the results of their operations for the period then ended; since
December 31, 1999 to and including the Effective Date, there has been no
material adverse change in their
[NYCorp;1203895.1]
51
consolidated financial condition, business or operations, except as set
forth in the Company's annual report on Form 10-K for the year ended
December 31, 1999, its quarterly reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000, or its current
report on Form 8-K dated November 16, 2000, in each case to the Securities
and Exchange Commission, (copies of each of which have been furnished to
each Bank) or as disclosed in writing to the Banks prior to the Effective
Date; and, since the Effective Date, there has been no material adverse
change in their consolidated financial condition from the most recent
consolidated financial statements of the Company and its Consolidated
Subsidiaries which have been furnished to the Banks pursuant to this
Agreement, except as disclosed in writing to the Banks.
(f) LITIGATION WITH RESPECT TO THE COMPANY OR ITS SUBSIDIARIES. As of
the Effective Date, no litigation (including, without limitation,
derivative actions), arbitration proceedings or governmental proceedings
are pending or, to the knowledge of the Company, threatened against the
Company or any Subsidiary of the Company which are likely (to the extent
not covered by insurance) materially and adversely to affect the
consolidated financial condition of the Company and its Consolidated
Subsidiaries or materially to impair the Company's ability to perform its
obligations under this Agreement and the Notes, except as set forth in the
Company's annual report on Form 10-K for the year ended December 31, 1999,
its quarterly reports on Form 10-Q for the quarters ended March 31, 2000,
June 30, 2000 and September 30, 2000, or its current report on Form 8-K
dated November 16, 2000, to the Securities and Exchange Commission, or as
disclosed in writing to the Banks prior to the Effective Date.
(g) REGULATORY APPROVALS WITH RESPECT TO THIS AGREEMENT. No
authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any court, governmental agency or
regulatory authority (Federal, state, local or foreign), including, without
limitation, the Securities and Exchange Commission, or with any securities
exchange, is or will be required in connection with the execution and
delivery by the Company of this Agreement or the Notes, the performance by
the Company of its obligations under this Agreement and the Notes, the
Borrowings by the Company in the manner and for the purpose contemplated by
this Agreement, or the issuance by the Company of the Notes in the manner
and for the purpose contemplated by this Agreement (except for such
authorizations, consents, approvals, licenses, exemptions, filings,
declarations or registrations, if any, which may be required to be obtained
or made subsequent to the Effective Date, all of which, if then required,
will have been duly obtained or made on or before each date on which the
foregoing representation and warranty shall be made, deemed made or
reaffirmed, as the case may be, will be sufficient for all purposes thereof
and will be in full force and effect on each such date).
[NYCorp;1203895.1]
52
(h) ERISA. As of the Effective Date, no material liability to the PBGC
has been, or is expected by the Company or any Related Person to the
Company to be, incurred by the Company or any Related Person to the
Company. No Reportable Event which presents a material risk of termination
of any Plan maintained by the Company or a Related Person to the Company
has occurred and is continuing at the Effective Date. No Plan maintained by
the Company or a Related Person to the Company had an Accumulated Funding
Deficiency, whether or not waived, as of the last day of the most recent
fiscal year of such Plan ending prior to the Effective Date. Neither the
Company nor any Related Person to the Company has engaged in a Prohibited
Transaction prior to the Effective Date.
(i) INVESTMENT COMPANY ACT. The Company is not an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
(j) PUBLIC UTILITY HOLDING COMPANY ACT. The Company is not a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(k) REGULATION U; REGULATION X. The Company is not engaged principally,
or as one of its important activities, in the business of extending, or
arranging for the extension of, credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U, and no part
of the proceeds of any Loan will be used for any purpose which would be in
violation of such regula tions or in violation of Regulation X.
(l) COMPANY'S TAX RETURNS AND TAX LIABILITY. The Company and its
Subsidiaries, except for any Subsidiary (x) incorporated under the laws of
any jurisdiction other than the United States of America or any State
thereof or the District of Columbia or (y) having substantially all of its
properties and assets or conducting substantially all of its business
outside the United States of America and having assets immaterial in
comparison to the assets of the Company and its Consolidated Subsidiaries,
have filed all tax returns required to be filed by them and have paid or
provided adequate reserves or obtained adequate indemnity for the payment
of all taxes and assessments payable by them which have become due, other
than (i) those not yet delinquent, (ii) those the nonpayment of which would
not be reasonably likely to result in a material adverse effect on the
consolidated financial condition of the Company and its Consolidated
Subsidiaries, (iii) those being contested in good faith and (iv) those
involving foreign taxes and assessments which are involved in a good faith
dispute.
[NYCorp;1203895.1]
53
(m) ENVIRONMENTAL AND PUBLIC AND EMPLOYEE HEALTH AND SAFETY MATTERS. As of
the Effective Date, the Company and each Subsidiary has complied with all
applicable Federal, state, and other laws, rules and regulations relating to
environmental pollution or to environmental regulation or control or to public
or employee health or safety, except (i) to the extent that the failure to so
comply would not be reasonably likely to result in a material and adverse effect
on the consolidated financial condition of the Company and its Consolidated
Subsidiaries or (ii) as set forth in the Company's annual report on Form 10-K
for the year ended December 31, 1999, its quarterly reports on Form 10-Q for the
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000, or its
current report on Form 8-K dated November 16, 2000, to the Securities and
Exchange Commission, or as disclosed in writing to the Banks prior to the
Effective Date. As of the Effective Date, the Company's and the Subsidiaries'
facilities do not manage any hazardous wastes, hazardous substances, hazardous
materials, toxic substances or toxic pollutants regulated under the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution or public or employee health
and safety, in violation of any such law, or any rules or regulations
promulgated pursuant thereto, except (A) for violations that would not be
reasonably likely to result in a material and adverse effect on the consolidated
financial condition of the Company and its Consolidated Subsidiaries or (B) as
set forth in the Company's annual report on Form 10-K for the year ended
December 31, 1999, its quarterly reports on Form 10-Q for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000, or its current report on
Form 8-K dated November 16, 2000, to the Securities and Exchange Commission, or
as disclosed in writing to the Banks prior to the Effective Date. As of the
Effective Date, the Company is aware of no events, conditions or circumstances
involving environmental pollution or contamination or public or employee health
or safety, in each case applicable to it or its Subsidiaries, that would be
reasonably likely to result in a material and adverse effect on the consolidated
financial condition of the Company and its Consolidated Subsidiaries except as
set forth in the Company's annual report on Form 10-K for the year ended
December 31, 1999, its quarterly reports on Form 10- Q for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000, or its current report on
Form 8-K dated November 16, 2000, to the Securities and Exchange Commission, or
as disclosed in writing to the Banks prior to the Effective Date.
(n) TRUE AND COMPLETE DISCLOSURE. To the best of the Company's knowledge
and belief, all factual information heretofore or contemporaneously furnished by
or on behalf of the Company or any Subsidiary of the Company to any Bank, any
Agent or any Managing Agent for purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Company or any Subsidiary
of the Company to any Bank, any Agent or any Managing Agent will be, true and
accurate (taken as a whole)
[NYCorp;1203895.1]
54
on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time.
ARTICLE VI
COVENANTS
SECTION 6.01. AFFIRMATIVE COVENANTS OF THE COMPANY. So long as any Loan
shall remain unpaid or any Bank shall have any Revolving Credit Commitment
hereunder, the Company will, unless the Required Banks shall have otherwise con
sented in writing:
(a) REPORTS, CERTIFICATES AND OTHER INFORMATION. Furnish to each Bank:
(i) INTERIM REPORTS. Within 60 days after the end of each of the
first three quarterly fiscal periods in each fiscal year of the
Company, a consolidated balance sheet of the Company as at the end of
such period (setting forth in comparative form the consolidated figures
as of the end of the previous fiscal year), the related consolidated
statement of operations for such period and (in the case of the second
and third quarterly periods) for the period from the beginning of the
current fiscal year to the end of such quarterly period (setting forth
in each case in comparative form the consolidated figures for the
corresponding periods of the previous fiscal year) and the related
consolidated statement of cash flows for the period from the beginning
of the current fiscal year to the end of such quarterly period (setting
forth in comparative form the consolidated figures from the
corresponding period of the previous fiscal year), all in reasonable
detail and certified, subject to changes resulting from year-end audit
adjustments, by a financial officer of the Company (it being understood
that the delivery of (A) the Company's Form 10-Q setting forth such
statements for each such period and (B) a certification by a financial
officer of the Company to the effect that such statements fairly
present in all material respects the financial condition and results of
operations of the Company on a consolidated basis (subject to changes
resulting from year-end audit adjustments) shall satisfy the
requirements of this Section 6.01(a)(i)).
(ii) ANNUAL REPORTS. Within 120 days after the end of each fiscal
year of the Company, a consolidated balance sheet of the Company as at
the end of such year, and the related consolidated statements of
operations and cash flows for such year, setting forth in each case in
comparative form the consolidated figures for the previous fiscal
year, accompanied by the opinion thereon of independent public
accountants of recognized national standing selected by the Company,
which opinion shall be prepared in accordance with
[NYCorp;1203895.1]
55
generally accepted auditing standards relating to reporting and shall
be based upon an audit by such accountants of the relevant accounts
(it being understood that the delivery of the Company's Form 10-K
setting forth such statements for such year shall satisfy the
requirements of this Section 6.01(a)(ii)).
(iii) OFFICERS' CERTIFICATES. Together with each delivery of
financial statements pursuant to Sections 6.01(a)(i) and 6.01(a)(ii)
hereof, an Officers' Certificate (A) stating that the signers have
reviewed the relevant terms of this Agreement and of the Notes and have
made, or caused to be made under their supervision, a review of the
transactions and condition of the corporation or corporations covered
by such financial statements during the accounting period in question,
and that such review has not disclosed the existence during such
accounting period, and that the signers do not otherwise have knowledge
of the existence as at the date of such Officers' Certificate, of any
Event of Default or Unmatured Event of Default, or, if any such Event
of Default or Unmatured Event of Default existed or exists, specifying
the nature and period of existence thereof and what action the Company
has taken or is taking or proposes to take with respect thereto and (B)
demonstrating in reasonable detail compliance during such accounting
period with Sections 6.01(h), 6.02(b) and 6.02(c) hereof.
(iv) ACCOUNTANTS' CERTIFICATES. Together with each delivery of
financial statements pursuant to Section 6.01(a)(ii) hereof, a
certificate signed by the independent public accountants reporting
thereon (A) briefly setting forth the scope of their examination (which
shall include a review of the Notes, of this Section 6.01(a) and of
Sections 6.01(b), 6.01(e), 6.01(h) and 6.02 (other than Section
6.02(e)) hereof), (B) stating whether or not their examination has
disclosed the existence, during the fiscal year covered by such
financial statements, of any Event of Default or Unmatured Event of
Default and, if their examination has disclosed such an Event of
Default or Unmatured Event of Default, specifying the nature and period
of existence thereof, and (C) stating that they have examined the
Officers' Certificate delivered therewith pursuant to Section
6.01(a)(iii) hereof.
(v) REPORTS TO SEC AND TO STOCKHOLDERS. Promptly upon their
becoming publicly available, copies of all financial statements,
reports, notices and proxy statements sent by the Company to its
stockholders, and of all regular and periodic reports filed by the
Company or any of its Specified Subsidiaries with the Securities and
Exchange Commission or any governmental authority succeeding to any of
its functions, which in each case have not been delivered under
paragraph (a)(i) or (a)(ii) of this Section 6.01.
(vi) OFFICERS' CERTIFICATES AS TO STATUS OF EXCEPTED SUBSIDIARIES.
(A) Promptly after the designation of a Subsidiary of the Company as an
[NYCorp;1203895.1]
56
Excepted Subsidiary or the withdrawal of such designation, an Officers'
Certificate setting forth the name of the Subsidiary and whether it is
being designated as, or withdrawn from designation as, an Excepted
Subsidiary, and (B) as soon as practicable after the designation of a
Subsidiary of the Company as an Excepted Subsidiary or the withdrawal
of such designation, or, at the option of the Company, together with
the next delivery of any financial statements to the Banks pursuant to
Section 6.01(a)(i) or Section 6.01(a)(ii) hereof, an Officers'
Certificate setting forth in reasonable detail, and certifying the
correctness of, all facts and computations required in order to
establish that such designation or withdrawal of designation is
permitted in accordance with this Agreement, and listing all
Subsidiaries of the Company that are designated as Excepted
Subsidiaries at such time.
(vii) OFFICERS' CERTIFICATES AS TO STATUS OF PRINCIPAL
SUBSIDIARIES. As soon as practicable after the determination that a
Person which shall have become a Subsidiary of the Company after
December 31, 1999, is a Principal Subsidiary or, at the option of the
Company, together with the next delivery of any financial statements to
the Banks pursuant to Section 6.01(a)(i) or Section 6.01(a)(ii) hereof,
an Officers' Certificate confirming the same.
(viii) NOTICE OF DEFAULT. Forthwith upon any principal officer of
the Company obtaining knowledge of the occurrence of an Event of
Default or an Unmatured Event of Default, an Officers' Certificate
specifying the nature and period of existence thereof and what action
the Company has taken or is taking or proposes to take with respect
thereto.
(ix) OTHER INFORMATION. With reasonable promptness, such other
information and data with respect to the Company or any of its
Specified Subsidiaries as from time to time may be reasonably requested
by any Bank.
(b) TAXES. Pay or provide adequate reserves or obtain adequate
indemnity for the payment of, and cause each Subsidiary to pay or provide
adequate reserves or obtain adequate indemnity for the payment of, all
taxes and assessments payable by it which become due, other than (i) those
not yet delinquent, (ii) those the nonpayment of which would not be
reasonably likely to result in a material adverse effect on the
consolidated financial condition of the Company and its Consolidated
Subsidiaries, (iii) those being contested in good faith and (iv) those
involving foreign taxes and assessments which are involved in a good faith
dispute with respect to tax or other matters.
(c) PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to Section
6.02(a) hereof, do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate existence and the rights
(charter and statutory) of
[NYCorp;1203895.1]
57
the Company and each Specified Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if
the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or any Specified
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to the Banks under this Agreement.
(d) INSPECTIONS; DISCUSSIONS. Permit any authorized representatives
designated by a Bank, at such Bank's expense, to make reasonable
inspections of any of the properties of the Company or any of its Specified
Subsidiaries, including its and their books of account, and to discuss its
and their affairs, finances and accounts with its and their officers, all
at such reasonable times and as often as may be reasonably requested by
such Bank; PROVIDED that if required by the Company, any such Bank shall,
as a condition to being permitted to make any such inspection, certify to
the Company that the same is being made solely in order to assist such Bank
in evaluating its extension of credit to the Company evidenced by the
Notes.
(e) BOOKS AND RECORDS. Maintain, and cause each of its Consolidated
Subsidiaries to maintain, a system of accounting established and
administered in accordance with generally accepted accounting principles
applied on a consistent basis, and set aside, and cause each of its
Consolidated Subsidiaries to set aside, on its books all such proper
reserves as shall be required by generally accepted accounting principles.
(f) MAINTENANCE OF PROPERTIES. Cause all properties used or useful in
the conduct of its business or the business of a Specified Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment, and cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section
6.01(f) shall prevent the Company from discontinuing the operation or
maintenance, or both the operation and maintenance, of any of such
properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Specified
Subsidiary and not disadvantageous in any material respect to the Banks
under this Agreement.
(g) MAINTENANCE OF INSURANCE. Insure and keep insured, and cause each
Specified Subsidiary to insure and keep insured, with reputable insurance
companies, so much of its respective properties, to such an extent and
against such risk (including fire), as companies engaged in similar
businesses and of similar size customarily insure properties of a similar
character; or, in lieu thereof, in the case of itself or of any one or more
of its Specified Subsidiaries, maintain or cause to be maintained a system
or systems of self-insurance which
[NYCorp;1203895.1]
58
will accord with the approved practices of companies owning or operating
properties of a similar character in maintaining such systems.
(h) CONSOLIDATED ADJUSTED TANGIBLE NET WORTH. Maintain Consolidated
Adjusted Tangible Net Worth at least equal to $2,600,000,000 at all times.
(i) COMPLIANCE WITH LAWS, ETC. Not violate any laws, rules,
regulations, or governmental orders to which it is subject (including any
such laws, rules, regulations or governmental orders relating to the
protection of the environment or to public or employee health or safety),
which violation would be reasonably likely to result in a material adverse
effect on the consolidated financial condition of the Company and its
Consolidated Subsidiaries; and not permit any Subsidiary of the Company to
violate any laws, rules, regulations, or governmental orders of Federal,
state or local governmental entities within the United States to which it
is subject (including any such laws, rules, regulations or governmental
orders relating to the protection of the environment or to public or
employee health or safety), which violation would be reasonably likely to
result in a material adverse effect on the consolidated financial condition
of the Company and its Consolidated Subsidiaries.
(j) DELIVERY OF CERTAIN DOCUMENTATION WITH RESPECT TO PLANS. (i) As
soon as possible and in any event within 30 days after it knows or has
reason to know that, regarding any Plan with respect to the Company or a
Related Person to the Company, a Prohibited Transaction or a Reportable
Event which presents a material risk of termination of any Plan maintained
by the Company or a Related Person to the Company has occurred (whether or
not the requirement for notice of such Reportable Event has been waived by
the PBGC), deliver to the Syndication Agent and each Bank a certificate of
a responsible officer of the Company setting forth the details of such
Prohibited Transaction or Reportable Event, (ii) upon request of the
Syndication Agent or any Bank made from time to time after the occurrence
of any such Prohibited Transaction or Reportable Event, deliver to the
Syndication Agent and each Bank a copy of the most recent actuarial report
and annual report completed with respect to any Plan maintained by the
Company or a Related Person to the Company, and (iii) as soon as possible,
and in any event within 10 days, after it knows or has reason to know that
any of the following have occurred with respect to any Plan maintained by
the Company or a Related Person to the Company: (A) any such Plan has been
terminated, (B) the Plan Sponsor intends to terminate any such Plan, (C)
the PBGC has instituted or will institute proceedings under Section 4042 of
ERISA to terminate any such Plan, or (D) the Company or any Related Person
to the Company withdraws from any such Plan, deliver to the Syndication
Agent and each Bank a written notice thereof. For purposes of this Section
6.01(j), the Company shall be deemed to have knowledge of all facts known
by the Plan Administrator of any Plan or Employee Benefit Plan of which the
Company or any Related Person to the Company is the Plan Sponsor.
[NYCorp;1203895.1]
59
(k) CONTRIBUTIONS TO PLANS. Pay, and use its best efforts to cause each
Related Person with respect to the Company to pay, when due, all
contributions required to meet the minimum funding standards set forth in
Sections 302 through 308 of ERISA with respect to each Plan maintained by
the Company or a Related Person to the Company.
(l) USE OF PROCEEDS. Use the proceeds of the Loans for general
corporate purposes and not for any purpose which is in violation of
Regulation U or Regulation X.
SECTION 6.02. NEGATIVE COVENANTS OF THE COMPANY. So long as any Loan shall
remain unpaid or any Bank shall have any Revolving Credit Commitment hereunder,
the Company will not, without the prior written consent of the Required Banks:
(a) MERGERS, CONSOLIDATIONS, SALES. Consolidate with or merge into any
other corporation or convey or transfer its properties substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety, shall be a corporation organized and existing under the laws
of the United States or any state or the District of Columbia, and
shall expressly assume the due and punctual payment of the principal of
and interest on all the Notes and the performance of every covenant of
this Agreement on the part of the Company to be performed or observed;
and
(ii) immediately after giving effect to such transaction, no Event
of Default or Unmatured Event of Default shall have occurred and be
continuing.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties
and assets substantially as an entirety to any Person which is permitted by
this Section 6.02(a), the successor corporation formed by such
consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation had been named as the
Company herein; and, in the event of such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as the
"COMPANY" in the introduction to this Agreement or any successor
corporation which shall theretofore become such in the manner described in
this Section 6.02(a)) shall be discharged from all obligations and
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covenants under this Agreement and the Notes and may be dissolved and
liquidated.
(b) RESTRICTION ON SECURED DEBT. Incur, create, assume, guarantee or
otherwise become liable with respect to, or permit any Specified Subsidiary
to incur, create, assume, guarantee or otherwise become liable with respect
to, any Secured Debt, which would cause Consolidated Secured Debt to exceed
15% of the sum of (x) the principal amount of the additional Funded Debt
permitted at the time of calculation under Section 6.02(c) hereof and (y)
Consolidated Debt at the time of calculation.
(c) RESTRICTION ON CONSOLIDATED DEBT. Create, incur, assume, guarantee
or in any other way become liable for, or permit any Specified Subsidiary
to create, incur, assume, guarantee or in any other way become liable for,
any Indebtedness included in Consolidated Debt (other than in connection
with any renewal, extension or refunding of such Indebtedness which does
not increase the net amount of the Consolidated Debt outstanding), unless
immediately thereafter, and after giving effect thereto, the ratio of
Consolidated Debt to Consolidated Adjusted Tangible Net Worth would not
exceed 2.6 to 1.0.
(d) RESTRICTION ON DIVIDENDS FROM PRINCIPAL SUBSIDIARIES. Enter into
any agreement, or permit any Principal Subsidiary to enter into any
agreement, containing any provision which would limit or restrict the
declaration or payment of dividends by such Principal Subsidiary (i) if
such agreement is an agreement for borrowed money, to an amount which is
less than 75% of such Principal Subsidiary's cumulative net income, as
determined in accordance with generally accepted accounting principles and
computed on a consolidated basis for such Principal Subsidiary and its
Subsidiaries, from the first day of the fiscal year of such Principal
Subsidiary in which such agreement is executed, and (ii) if such agreement
is not for borrowed money, to an amount which would materially adversely
affect the Company's ability to perform its obligations under this
Agreement and the Notes.
(e) CHANGE IN CONTROL. Permit any Person or group (within the meaning
of Rule 13d-5 of the Securities and Exchange Commission as in effect on the
date hereof) beneficially to own more than 50% (by number of votes) of the
Voting Securities of the Company unless such Voting Securities shall have
been acquired in a transaction or series of transactions approved prior to
such acquisition by the Board of Directors of the Company, and the
directors so approving shall include directors who constitute a majority of
the Board of Directors and who are persons either (i) who are directors on
the date hereof or (ii) who were nominated or elected by a majority of the
directors who (A) are directors on the date hereof or (B) shall have been
nominated or elected as described in this clause (ii).
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ARTICLE VII
CONDITIONS OF CREDIT
The obligations of the Banks to make Loans hereunder are subject to (a) the
Revolving Credit Commitments having become effective as provided in Section 7.01
below and (b) the satisfaction of the conditions set forth in Section 7.02
below.
SECTION 7.01. CONDITIONS TO EFFECTIVENESS OF COMMITMENTS. The Revolving
Credit Commitments shall become effective at such time as the following
conditions shall have been satisfied:
(a) The Company shall have executed and delivered to the Syndication
Agent for the account of each Bank a Competitive Note and Revolving Credit
Note (appropriately completed).
(b) State Certificates as to the Company:
(i) The Syndication Agent shall have received (with a photocopy
for each Bank) a copy of the Restated Certificate of Incorporation of
the Company and each amendment, if any, thereto (but not the
certificates of designation of preferences of preferred stock),
certified by the Secretary of State of the State of Delaware (as of a
date shortly before the Effective Date) as being true and correct
copies of such documents on file in the office of such Secretary of
State.
(ii) The Syndication Agent shall have received (with a photocopy
for each Bank) the signed Certificate or Certificates of the Secretary
of State of the State of Delaware, in regular form (as of a date
shortly before the Effective Date), listing the Restated Certificate of
Incorporation of the Company and each amendment, if any, thereto,
together with the certificates of designation of preferences of
preferred stock and the certificates of merger or ownership, on file in
the office of such Secretary of State and stating that such documents
are the only charter documents of the Company on file in such office
filed on the date the Restated Certificate of Incorporation was filed
or thereafter and that the Company is duly incorporated and in good
standing in the State of Delaware and as to the franchise tax status of
the Company.
(c) The Syndication Agent and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed certificate of the
President or a Vice President and the Secretary or an Assistant Secretary
of the Company, dated the Effective Date and in the form of Exhibit F
hereto (appropriately completed), certifying, among other things, (i) a
true and correct copy of resolutions adopted by the Board of Directors or
Executive Committee of the Board of Directors of
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the Company authorizing the execution, delivery and performance by the
Company of this Agreement and the Notes and authorizing the issuance by the
Company of the Notes in the manner and for the purpose contemplated by this
Agreement, (ii) a true and correct copy of the By-laws of the Company as in
effect on the Effective Date, and (iii) the incumbency and specimen
signatures of officers of the Company executing (x) the documents specified
in clause (i) above, and (y) any other documents delivered to the
Syndication Agent or the Administrative Agent on the Effective Date.
(d) The Syndication Agent and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed opinion of Robert E.
Sawyer, Esq., Associate General Counsel of the Company and counsel to the
Company, dated the Effective Date and given upon the express instructions
of the Company, in the form of Exhibit H hereto, with such changes (if any)
therein as shall be acceptable to the Syndication Agent and special counsel
to the Agents, and as to such other matters as the Syndication Agent may
reasonably request.
(e) The Syndication Agent and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed opinion of Cravath,
Swaine & Moore, special counsel to the Agents, dated the Effective Date, in
the form of Exhibit I hereto, with such changes (if any) therein as shall
be acceptable to the Syndication Agent.
(f) The Syndication Agent and the Administrative Agent shall have
received (with a photocopy for each Bank) such other instruments and
documents as the Syndication Agent and the Administrative Agent may have
reasonably requested.
(g) The Existing Credit Agreement shall have been or shall
simultaneously be terminated and the principal of and interest accrued on
all loans outstanding thereunder and all fees accrued thereunder shall have
been or shall simultaneously be paid in full.
(h) Each of the Agents, the Managing Agents and the Company shall have
executed one or more counterparts of this Agreement.
(i) The Syndication Agent shall have received satisfactory evidence
that banks with Revolving Credit Commitments which cause the Total
Commitment to equal $1,000,000,000 have executed one or more counterparts
of this Agreement or of an Addendum.
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SECTION 7.02. CONDITIONS PRECEDENT TO ALL LOANS. The obligation of each
Bank to make each Loan shall be subject to the fulfillment at or prior to the
time of the making of such Loan of each of the following further conditions:
(a) The representations and warranties on the part of the Company
contained in this Agreement shall be true and correct in all material
respects at and as of the Borrowing Date for each Loan (other than any
Refinancing Loan), as though made on and as of such date (except to the
extent that such representations and warranties expressly relate solely to
an earlier date).
(b) Both before and after giving effect to such Loan (other than any
Refinancing Loan), the Company shall be in compliance with the requirements
of any applicable covenants pertaining to its incurrence of unsecured
indebtedness.
(c) No Event of Default and no Unmatured Event of Default (other than
any Unmatured Event of Default which occurs as a result of a Bank Funding
Default) shall have occurred and be continuing on the Borrowing Date for
such Loan (other than any Refinancing Loan), or would result from the
making of such Loan.
Each Borrowing by the Company shall be deemed to be a representation and
warranty by the Company on the date of such Borrowing that each of the
conditions contained in this Section 7.02 has been satisfied.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following events, acts or
occurrences (herein called an "EVENT OF DEFAULT") shall occur and be continuing:
(a) default, and continuance thereof for three (3) Business Days or, in
the case of any default which results from a Bank Funding Default, five (5)
Business Days after the Company shall have been advised by the Syndication
Agent or the Administrative Agent of such Bank Funding Default, in the
payment when due of any amount owing by the Company hereunder or under the
Notes in respect of the principal of, or interest on, any Loan or in
respect of the Facility Fee; or
(b) any representation or warranty on the part of the Company contained
in this Agreement or in any certificate, letter or other writing or
instrument furnished or delivered to any Bank or the Syndication Agent or
the Administrative Agent pursuant hereto or in connection herewith, shall
at any time
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64
prove to have been incorrect in any material respect when made, deemed made
or reaffirmed, as the case may be; or
(c) the Company shall default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed or
observed under Section 6.01(h), 6.02(b), 6.02(c) or 6.02(d) hereof (other
than a default which would not have occurred or would not be continuing if
the calculations pursuant to the aforesaid Sections were made without
giving effect to changes in generally accepted accounting principles which
require implementation after the Effective Date); or
(d) the Company shall default in any material respect in the
performance or observance of any other term, covenant, condition or
agreement on its part to be performed or observed hereunder (and not
constituting an Event of Default under any other clause of this Section
8.01), and such default shall continue unremedied for thirty (30) days
after written notice thereof shall have been given to the Company by the
Syndication Agent or any Bank; or
(e) either (i) the Company or any Specified Subsidiary shall generally
fail to pay, or admit in writing its inability to pay, its debts as they
become due, or shall voluntarily commence any case or proceeding or file
any petition under any bankruptcy, insolvency or similar law or seeking
dissolution, liquidation or reorganization or the appointment of a
receiver, trustee, custodian or liquidator for itself or a substantial
portion of its property, assets or business or to effect a plan or other
arrangement with its creditors (except the voluntary dissolution, not under
any bankruptcy or insolvency law, of a Specified Subsidiary), or shall file
any answer admitting the jurisdiction of the court and the material
allegations of any involuntary petition filed against it in any bankruptcy,
insolvency or similar case or proceeding, or shall be adjudicated bankrupt,
or shall make a general assignment for the benefit of creditors, or shall
consent to, or acquiesce in the appointment of, a receiver, trustee,
custodian or liquidator for itself or a substantial portion of its
property, assets or business, or (ii) corporate action shall be taken by
the Company or any Specified Subsidiary for the purpose of effectuating any
of the foregoing; or
(f) involuntary proceedings or an involuntary petition shall be
commenced or filed against the Company or any Specified Subsidiary under
any bankruptcy, insolvency or similar law or seeking the dissolution,
liquidation or reorganization of the Company or such Specified Subsidiary
(as the case may be) or the appointment of a receiver, trustee, custodian
or liquidator for the Company or such Specified Subsidiary (as the case may
be) or of a substantial part of the property, assets or business of the
Company or such Specified Subsidiary (as the case may be), or any writ,
judgment, warrant of attachment, execution or similar process shall be
issued or levied against a substantial part of the property, assets or
business of the Company or any Specified Subsidiary, and such proceedings
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65
or petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released, vacated or
fully bonded, within sixty (60) days after commencement, filing or levy, as
the case may be; or
(g) (i) the Company or any Specified Subsidiary shall default (as
principal or guarantor or other surety) in the payment when due (subject to
any applicable notice or grace period), whether at stated maturity or
otherwise, of any principal of or interest on (howsoever designated) any
indebtedness for borrowed money, whether such indebtedness now exists or
shall hereafter be created, or (ii) an event of default (with respect to
the Company or any Specified Subsidiary) as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there
may be secured or evidenced, any indebtedness for borrowed money of, or
guaranteed by, the Company or any Specified Subsidiary, whether such
indebtedness now exists or shall hereafter be created, shall occur and
shall permit such indebtedness to become due and payable prior to its
stated maturity or due date; PROVIDED that no default under this subsection
(g) shall be deemed to exist as a result of a default or event of default
(as described in clause (i) or clause (ii) above) in respect of any such
indebtedness (1) which is payable solely out of the property or assets of a
partnership, joint venture or similar entity of which the Company or any
Specified Subsidiary is a participant, or is secured by a mortgage on, or
other security interest in, the property or assets owned or held by such
entity, in either case without any further recourse to or liability of the
Company or any Specified Subsidiary as a participant in such entity, or (2)
if the principal of and interest on such indebtedness, when added to the
principal of and interest on all other such indebtedness then in default
(exclusive of indebtedness under clause (1) above), does not exceed
$100,000,000; or
(h) with respect to any Plan (other than a Multiemployer Plan) as to
which the Company or any Related Person to the Company may have any
liability, there shall exist an unfunded current liability under the Code
which is material to the consolidated financial condition of the Company
and its Consolidated Subsidi aries, and (x) steps are undertaken to
terminate such Plan or (y) such Plan is terminated or (z) any Reportable
Event which presents a material risk of termination with respect to such
Plan shall occur;
then, and in any such event (x) if such event relates to the Company and is
described in clause (e) or clause (f) of this Section 8.01, (i) the Revolving
Credit Commitments shall immediately terminate, and (ii) all sums then owing by
the Company hereunder and under the Notes (and, in the event payment is to be
made on a day which is not the expiration date of the relevant Interest Period,
together with such amounts as will compensate each Bank in such Bank's sole
discretion for any losses incurred by it (or its lending branch or affiliate) in
respect of funds borrowed by it or deposited with it for the purpose of making
or maintaining its Loans hereunder) shall become and be immediately due and
payable, without presentment, demand, protest or notice of
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66
any kind, all of which are hereby expressly waived by the Company, and (y) in
the case of any other such event, the Syndication Agent shall, at the direction
of the Required Banks, at the same or different times, take one or more of the
following actions: (i) declare the Revolving Credit Commitments to be
terminated, whereupon the Revolving Credit Commitments shall forthwith
terminate, or (ii) declare all sums then owing by the Company hereunder and
under the Notes to be forthwith due and payable, whereupon all such sums (and,
in the event payment is to be made on a day which is not the expiration date of
the relevant Interest Period, together with such amounts as will compensate each
Bank in such Bank's sole discretion for any losses incurred by it (or its
lending branch or affiliate) in respect of funds borrowed by it or deposited
with it for the purpose of making or maintaining its Loans hereunder) shall
become and be immediately due and payable without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived by the Company.
Promptly following the making of any such declaration, the Syndication Agent
shall give notice thereof to the Company and each Bank, but failure to do so or
any delay in so doing shall not impair the effect of such declaration.
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS AND THE BANKS
SECTION 9.01. APPOINTMENT AND POWERS OF THE ADMINISTRATIVE AGENT AND THE
SYNDICATION AGENT. Each Bank hereby irrevocably designates and appoints each of
the Syndication Agent and the Administrative Agent its agent hereunder and
hereby authorizes each such Agent to take such action on its behalf and to
exercise such rights, remedies, powers and privileges hereunder as are
specifically authorized to be exercised by such Agent by the terms hereof,
together with such rights, remedies, powers and privileges as are reasonably
incidental thereto. Each of the Syndication Agent and the Administrative Agent
may execute any of its respective duties as such Agent hereunder by or through
agents or attorneys-in-fact and shall be entitled to retain counsel and to act
in reliance upon the advice of such counsel concerning all matters pertaining to
the agency hereby created and its duties hereunder, and shall not be liable for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent, the Syndication Agent, the
Co-Documentation Agents and the Managing Agents shall have no duties or
responsibilities to any Bank, except those expressly set forth in this
Agreement, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent,
the Syndication Agent, any Co-Documentation Agent or any Managing Agent.
SECTION 9.02. EXCULPATORY PROVISIONS. No Bank, Agent or Managing Agent, nor
any of their respective directors, officers or employees shall be liable for any
action taken or omitted to be taken by them hereunder or in connection herewith,
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67
except for their own gross negligence or wilful misconduct; nor shall any Bank,
Agent or Managing Agent be responsible in any manner to any Person for the
representations, warranties or other statements made by any other Person or for
the due execution or delivery, validity, effectiveness, genuineness, value,
sufficiency or enforceability against the Company or any other obligor of this
Agreement, the Notes or any other document furnished pursuant thereto or in
connection herewith. Neither the Agents, the Managing Agents nor any of their
respective officers shall be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of the Company or any of its Subsidiaries.
SECTION 9.03. RELIANCE BY THE ADMINISTRATIVE AGENT AND THE SYNDICATION
AGENT. Each of the Syndication Agent and the Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by any such Agent.
Each such Agent may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with such Agent. Each of the Syndication Agent and
the Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other documents executed and delivered in
connection herewith unless it shall first receive such advice or concurrence of
the Required Banks as it deems appropriate or it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Neither the Syndication Agent nor the Administrative Agent shall be liable to
any Bank for acting, or refraining from acting, under this Agreement or any
other documents executed and delivered in connection herewith in accordance with
a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes.
SECTION 9.04. NOTICE OF DEFAULT. Neither the Syndication Agent nor the
Administrative Agent shall be deemed to have knowledge or notice of the
occurrence of any Event of Default or Unmatured Event of Default hereunder
unless it has received notice from a Bank or the Company referring to this
Agreement, describing such Event of Default or Unmatured Event of Default and
stating that such notice is a "notice of default". In the event that the
Syndication Agent or the Administrative Agent receives such a notice, it shall
give notice thereof to the Banks and to such other Agent. The Syndication Agent
shall take such action with respect to such Event of Default or Unmatured Event
of Default as shall be reasonably directed by
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the Required Banks; PROVIDED, HOWEVER, that unless and until the Syndication
Agent shall have received such direction, the Syndication Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default or Unmatured Event of Default as it shall deem
advisable in the best interests of the Banks; PROVIDED FURTHER that the
Syndication Agent shall have the right, power and authority to take the
affirmative action specified in Section 8.01 hereof only upon the direction of
the Required Banks.
SECTION 9.05. INDEMNIFICATION. Each Bank hereby agrees, in the ratio that
such Bank's Revolving Credit Commitment from time to time bears to the Total
Commitment from time to time, to indemnify and hold harmless each Agent and each
Managing Agent, as agents hereunder, from and against any and all losses,
liabilities (including liabilities for penalties), actions, suits, judgments,
demands, damages, costs and expenses (including, without limitation, attorneys'
fees and expenses) incurred or suffered by such Agent or Managing Agent in such
capacity as a result of any action taken or omitted to be taken by such Agent or
Managing Agent in such capacity or otherwise incurred or suffered by, made upon,
or assessed against such Agent or Managing Agent in such capacity; PROVIDED that
no Bank shall be liable for any portion of any such losses, liabilities
(including liabilities for penalties), actions, suits, judgments, demands,
damages, costs or expenses resulting from or attributable to gross negligence or
wilful misconduct on the part of such Agent or Managing Agent or its officers,
employees or agents. Without limiting the generality of the foregoing, each Bank
hereby agrees, in the ratio aforesaid, to reimburse each Agent and Managing
Agent promptly following its demand for any out-of-pocket expenses (including,
without limitation, attorneys' fees and expenses) incurred by such Agent or
Managing Agent hereunder and not reimbursed to such Agent or Managing Agent by
the Company. Each Bank's obligations under this paragraph shall survive the
termination of this Agreement or, if earlier, the termination of the Revolving
Credit Commitment of such Bank, and the discharge of the Company's obligations
hereunder.
SECTION 9.06. NONRELIANCE ON THE AGENTS, THE MANAGING AGENTS AND OTHER
BANKS. Each Bank expressly acknowledges that neither any Agent, any Managing
Agent nor any of their respective officers, directors, employees, agents,
attorneys-in- fact or affiliates has made any representations or warranties to
it and that no act by any such Agent or Managing Agent hereafter taken,
including any review of the affairs of the Company, shall be deemed to
constitute any representation or warranty by such Agent or Managing Agent to any
Bank. Each Bank represents to each Agent and Managing Agent that it has,
independently and without reliance upon any Agent or Managing Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Company and
made its own decision to make its Loans hereunder and enter into this Agreement.
Each Bank also represents that it will, independently and without reliance upon
any Agent or Managing Agent or any other Bank, and based on such
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69
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Company.
SECTION 9.07. THE AGENTS AND THE MANAGING AGENTS IN THEIR INDIVIDUAL
CAPACITIES. Each Agent and each Managing Agent and their affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Company as though such Agent or Managing Agent were not an Agent or Managing
Agent hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, each Agent and Managing Agent shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not an Agent or Managing Agent, and the terms "Bank" and "Banks" shall
include each Agent and Managing Agent in its individual capacity.
SECTION 9.08. EXCESS PAYMENTS. Except for payments made pursuant to Section
2.09, Section 2.13, Section 2.14 or Section 4.03 hereof, if any Bank or other
holder of a Note shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise) on account of principal of
or interest on any Revolving Credit Note in excess of its PRO RATA share of
payments and other recoveries obtained by all Banks or holders on account of
principal of and interest on Revolving Credit Notes then held by them, such Bank
or other holder shall purchase from the other Banks or holders such
participation in the Revolving Credit Notes held by them as shall be necessary
to cause such purchasing Bank or holder to share the excess payment or other
recovery ratably with each of them; PROVIDED, HOWEVER, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank or holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest. The Company
agrees that any Bank or holder so purchasing a participation from another Bank
or holder pursuant to this Section 9.08 may, to the fullest extent permitted by
law, exercise all its rights of payment (including offset) with respect to such
participation as fully as if such Bank or holder were the direct creditor of the
Company in the amount of such participation.
SECTION 9.09. OBLIGATIONS SEVERAL. The obligations of the Banks hereunder
are several, and neither any Bank nor the Agents or the Managing Agents shall be
responsible for the obligations of any other Person hereunder, nor will the
failure of any Bank to perform any of its obligations hereunder relieve the
Syndication Agent or the Administrative Agent or any other Bank from the
performance of its respective obligations hereunder. Nothing contained in this
Agreement, and no action taken by the Banks or any Agent or Managing Agent
pursuant hereto or in connection herewith or pursuant to or in connection with
the Notes, shall be deemed to constitute the Banks, together or with the Agents
and the Managing Agents, a partnership, association, joint venture or other
entity.
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SECTION 9.10. RESIGNATION BY ANY AGENT OR MANAGING AGENT. Any Agent and any
Managing Agent may resign as such at any time upon at least 30 days' prior
notice to the Company and the Banks. In the event of such resignation by the
Syndication Agent or the Administrative Agent, the Required Banks (with the
consent of the Company (which shall not be unreasonably withheld) in the event
that there then does not exist an Event of Default or Unmatured Event of
Default), shall as promptly as practicable appoint a successor Syndication Agent
or Administrative Agent, as the case may be.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay on
the part of the Syndication Agent or the Administrative Agent or any Bank in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Syndication
Agent or the Administrative Agent or any Bank at law, in equity or otherwise.
Each request by the Company for any amendment, modification, supplement,
termination or waiver of or to any provision of this Agreement shall be directed
to the Syndication Agent, and no such amendment, modification, supplement,
termination or waiver of or to any provision of this Agreement, nor consent to
any departure by the Company therefrom, shall be effective unless the same shall
be in writing and signed by the Company and by or on behalf of the Syndication
Agent and the Required Banks; PROVIDED, HOWEVER, that no such amendment,
modification, supplement, termination, waiver or consent, as the case may be,
which has the effect of (x) reducing the rate or amount, or extending the stated
maturity or due date, of any sum payable by the Company to any Bank hereunder or
under such Bank's Notes, or (y) except as provided in Section 2.09(e)(ii),
Section 2.13(c)(i), Section 2.14(i), Section 4.03(b)(ii) and Section 10.06(c)
hereof, increasing the amount, or extending the stated expiration or termination
date, of any Bank's Revolving Credit Commitment hereunder, or (z) changing this
Section 10.01, Section 10.06 or Section 10.07 hereof or the definitions of the
terms "Allocable Share", "Applicable Facility Fee Percentage", "Applicable
Margin", "Event of Default", "Proportional Share", "Reference Bank", "Reference
Banks", "Required Banks", "Revolving Credit Commitment", "Total Commitment" and
"Unmatured Event of Default", or changing the designation of the "Required
Banks" as the Banks entitled to direct the Syndication Agent pursuant to Section
8.01 hereof shall be effective unless the same shall be signed by or on behalf
of each Bank; PROVIDED FURTHER that no such amendment, modification, supplement,
termination, waiver or consent, as the case may be, which has the effect of (x)
increasing the duties or obligations of any Agent or any Managing Agent
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hereunder, or (y) increasing the standard of care or performance required on the
part of any Agent or any Managing Agent hereunder, or (z) reducing or
eliminating the indemnities or immunities to which any Agent or Managing Agent
is entitled hereunder (including, without limitation, any amendment or
modification of this Section 10.01) shall be effective unless the same shall be
signed by or on behalf of the Agent or Managing Agent affected thereby. Any
waiver of any provision of this Agreement, and any consent to any departure by
the Company from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
given. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
SECTION 10.02. CONFIDENTIALITY. Each Bank shall maintain in confidence and
not publish, disseminate or disclose in any manner or to any Person and shall
not use (x) any material, nonpublic information relating to the Company and its
Subsidiaries or (y) any technical, nonfinancial information, data or know-how
which is identified in writing as confidential by the Company, in either case
which may be furnished pursuant to this Agreement, including any such
information which may be furnished pursuant to Article VI hereof (hereinafter
collectively called "CONFIDENTIAL INFORMATION"), subject to each Bank's (a)
obligation to disclose any such Confidential Information pursuant to a request
or order under applicable laws and regulations or pursuant to a subpoena or
other legal process, (b) right to disclose any such nontechnical or financial
Confidential Information to bank examiners, its affiliates, auditors, counsel,
other professional advisors, other Banks, and other banks or other entities in
connection with an offer by such Bank to sell a Participation to such other bank
or other entity or to make an assignment pursuant to Section 10.06(c) hereof,
(c) right to use any such Confidential Information in connection with the
transactions set forth herein, and (d) right to disclose any such Confidential
Information in connection with the transactions set forth herein or in
connection with any litigation or dispute involving the Banks and the Company or
any of its Subsidiaries or any transfer or other disposition by such Bank of any
of its loans or other extensions of credit to the Company or any of the
Company's Subsidiaries; PROVIDED, HOWEVER, that Confidential Information
disclosed pursuant to clause (b) or (d) of this sentence shall be so disclosed
subject to such procedures as are reasonably calculated to maintain the
confidentiality thereof; and PROVIDED FURTHER that Confi dential Information
disclosed pursuant to applicable laws, regulations, subpoenas or other legal
process shall be so disclosed subject to such confidentiality provisions, if
any, as may be provided under applicable law. The Banks agree, to the extent
permitted by applicable law, to use their best efforts promptly to notify the
Company in writing of each order, subpoena or other legal process providing for
the disclosure and/or production of Confidential Information and shall, to the
extent permitted by applicable law, use their best efforts promptly to supply
the Company with a copy of such order, subpoena or other legal process, in order
that the Company may intervene in the relevant administrative or legal
proceeding or take other appropriate legal action to protect the confidentiality
of such Confidential Information.
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Notwithstanding the foregoing provisions of this Section 10.02, (i) the
foregoing obligation of confidentiality shall not apply to any such Confidential
Information that was known to such Bank or any of its affiliates prior to the
time it received such Confidential Information from the Company or its
Subsidiaries pursuant to this Agreement, other than as a result of the
disclosure thereof by a Person who, to the knowledge or reasonable belief of
such Bank, was prohibited from disclosing it by any duty of confidentiality
arising (under this Agreement or otherwise) by contract or law, and (ii) the
foregoing obligation of confidentiality shall not apply to any such Confidential
Information that becomes part of the public domain independently of any act of
such Bank not permitted hereunder (through publication, the issuance of a patent
disclosing such information or otherwise) or when identical or substantially
similar information is received by such Bank without restriction as to its
disclosure or use, from a Person who, to the knowledge or reasonable belief of
such Bank, was not prohibited from disclosing it by any duty of confidentiality
arising (under this Agreement or otherwise) by contract or law. The obligations
of each Bank under this Section 10.02 shall survive the termination of this
Agreement or, if earlier, the termination of the Revolving Credit Commitment of
such Bank.
SECTION 10.03. NOTICES, ETC. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto shall be in writing and (except for financial statements and other
documents to be furnished pursuant to Article VI hereof (with the exception of
notices of the occurrence of an Event of Default or an Unmatured Event of
Default which is continuing), which, if sent by mail, may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by telecopier, and
shall be deemed to be given for purposes of this Agreement on the day that such
writing is delivered or sent to the intended recipient thereof in accordance
with the provisions of this Section 10.03. Unless otherwise specified in a
notice sent or delivered in accordance with the foregoing provisions of this
Section 10.03, notices, demands, instructions and other communications in
writing shall be given to or made upon the respective parties hereto at their
respective addresses (or to their respective telecopier numbers) indicated on
Schedule II hereto, and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party on such
Schedule.
Anything herein to the contrary notwithstanding, notices from the Company
pursuant to Sections 2.01, 2.02, 2.07, 2.09, 2.13, 2.14, 4.01, 4.02 and 4.03
hereof shall be effective, for the purposes of this Agreement, only when
actually received by all Persons to whom such notices are required to be sent or
given.
SECTION 10.04. COSTS, EXPENSES AND TAXES. The Company agrees to pay all
costs and expenses of the Syndication Agent and the Administrative Agent in
connection with the arrangement of the credit facilities provided for herein and
the
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negotiation, preparation, printing, reproduction, execution and delivery of this
Agreement, the Notes, any amendments or modifications of (or supplements to) any
of the foregoing and any and all other documents furnished in connection with
the execution and delivery of this Agreement, including the reasonable fees and
out-of- pocket expenses of outside counsel to the Administrative Agent and the
Syndication Agent relative thereto (limited, however, to such fees and expenses
of only one outside counsel who shall represent the Administrative Agent and
Syndication Agent), and all costs and expenses (whether of the Syndication Agent
and the Administrative Agent or any Bank or otherwise and including, without
limitation, attorneys' fees and expenses), if any, in connection with the
enforcement of this Agreement, the Notes or any other agreement furnished
pursuant hereto or in connection herewith. In addition, the Company shall pay
all stamp, transfer and other transaction taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement, and the
Company shall pay all such transaction taxes payable or determined to be payable
in connection with the issuance of the Notes or the making of any Loan by any
Bank, and the Company agrees to save and hold each Agent, each Managing Agent
and each Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such transaction taxes.
If any action, suit or proceeding arising from any of the foregoing is brought
against any Agent or any Managing Agent, any Bank, or any other Person
indemnified or intended to be indemnified pursuant to this Section 10.04, the
Company, to the extent and in the manner directed by the Person or Persons
indemnified or intended to be indemnified, will resist and defend such action,
suit or proceeding or cause the same to be resisted and defended by counsel
designated by the Company (which counsel shall be satisfactory to the Person or
Persons indemnified or intended to be indemnified). If the Company shall fail to
do any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of the Company contained herein shall be
breached, the Syndication Agent may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach, and may expend its funds for
such purpose. Any and all amounts so expended by the Syndication Agent shall be
repayable to it by the Company immediately upon the Syndication Agent's demand
therefor, with interest at a rate per annum (computed on the basis of a year
consisting of 365 or, when appropriate, 366 days) equal to the sum of (i) the
Alternate Base Rate in effect from time to time during the period from and
including the date so expended by such Agent to the date of repayment, PLUS (ii)
two percent (2%) per annum. The obligations of the Company under this Section
10.04 shall survive the termination of this Agreement and the discharge of the
Company's other obligations hereunder.
SECTION 10.05. CONFIRMATIONS. The Company and each Bank agree from time to
time, upon written request received by one from the other, to confirm to the
other in writing the aggregate unpaid principal amount of the Loans of such Bank
then outstanding under the Note or Notes held by it, and each such Bank agrees
from time to time, upon written request received by it from the Company, to make
the
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74
Note or Notes held by it (including the schedule attached thereto) available for
reasonable inspection by the Company at the office of such Bank.
SECTION 10.06. SUCCESSORS AND ASSIGNS; PARTICIPATIONS. (a) This Agreement
shall be binding upon and inure to the benefit of the Company, the Banks, the
Agents, the Managing Agents, and their respective successors and permitted
assigns; PROVIDED, HOWEVER, that any assignment or transfer by a Bank of any or
all of its rights hereunder shall not materially increase the amount which would
have been payable to the Bank making such assignment or transfer by the Company
under this Agreement and the Notes in the absence of such assignment or
transfer; and PROVIDED FURTHER that except in accordance with the provisions of
Section 6.02(a) hereof, the Company may not assign its rights hereunder or in
connection herewith or any interest herein without the prior written consent of
all of the Banks. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
each of their respective successors and permitted assigns.
(b) Any Bank may without the consent of the Company sell participations to
one or more banks or other entities that, in the ordinary course of their
business, regularly extend credit of the types and in the amounts extended by
Banks under this Agreement (such banks and other entities hereinafter referred
to, collectively, as "Participants") in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment and the Loan or Loans owing to it and
the Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the Participants shall be entitled to the cost
protection provisions contained in Section 2.09, Section 2.13, and Section 3.04
hereof (PROVIDED that no Participant shall be entitled to receive any greater
amount pursuant to such provisions than the transferor Bank would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Bank to such Participant had no such transfer occurred and
PROVIDED FURTHER that such Participant shall have fully complied with the
provisions of Section 10.06(g) hereof) and the cost protection provisions of
Section 2.13 hereof shall be applied by assuming that such Bank did not sell any
participation to any Participant, (iv) the Company, the Agents, the Managing
Agents and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement
and in connection with the cost protection provisions of this Agreement to which
any Participant is entitled pursuant to this Sec tion 10.06(b), (v) such Bank
shall retain the sole right and responsibility to enforce the obligations of the
Company relating to the Loans, (vi) such Bank shall not, except with respect
only to changes in the amount of the Revolving Credit Commitment of such Bank,
or the principal amount of its Loans outstanding or the Interest Rate or
Interest Period with respect thereto, or the amount of any fees payable to it
hereunder or extension of the Maturity Date, enter into any agreement with any
Participant that
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75
would require the consent of such Participant with respect to the exercise by
such Bank of its voting rights under this Agreement, and (vii) each such sale
shall be made in the ordinary course of such Bank's commercial banking business
and in compliance with all applicable laws.
(c) Any Bank may assign, with the prior written consent of the Company and
the Administrative Agent (which consent shall not unreasonably be withheld) and
after using reasonable efforts to identify an Eligible Assignee reasonably
acceptable to the Company, to one or more Eligible Assignees, or without the
consent of the Company or the Administrative Agent to one or more Banks, all or
a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit
Commitment and the same portion of the applicable Loan or Loans at the time
owing to it and the applicable Note or Notes held by it, other than any
Competitive Notes held by it, which may, but need not, be assigned); PROVIDED,
HOWEVER, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Bank's rights and obligations under
this Agreement, the Loan or Loans at the time owing to such assigning Bank and
the Note or Notes held by it, other than any Competitive Notes held by it, which
may, but need not, be assigned, (ii) except in the case of an assignment of a
Bank's entire interest hereunder, the amount of the Revolving Credit Commitment
of the assigning Bank which it retains shall be in a principal amount of not
less than $15,000,000 and the amount of such Revolving Credit Commitment which
it assigns (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall be an
integral multiple of $5,000,000; PROVIDED, HOWEVER, that no assignment may be
made that, taken together with any simultaneous assignments, would result in any
Bank having a Revolving Credit Commitment which is less than $15,000,000, (iii)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance with respect to such assignment, together with any
Note or Notes subject to such assignment and a processing and recordation fee of
(A) $1,000 in the case of an assignment to any Bank and (B) $2,500 in all other
cases (except that such fee shall not be payable if the Eligible Assignee is an
affiliate of the assignor Bank), (iv) each such assignment shall be made in the
ordinary course of the assigning Bank's commercial banking business and in
compliance with all applicable laws, (v) no such assignment shall be effective
unless the Eligible Assignee to which such assignment is made has fully complied
with the provisions of Section 10.06(g) hereof, and (vi) the Company shall have
received a copy of the Assignment and Acceptance signed by the parties thereto.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (x) the
Eligible Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder, (y) the assignor Bank thereunder shall, to the extent provided in
such Assignment and Acceptance, be released (except as provided in Section
2.13(b), Section 10.02 and Section 10.07 hereof) from its
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76
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto), and (z) Schedule I and Schedule II hereto shall be deemed amended to
reflect the addition of such Eligible Assignee and the decrease in the Revolving
Credit Commitment of the assignor Bank. Each assignee of an interest under this
Agreement and any Note shall take such interest subject to any request made,
waiver or consent given or other action taken hereunder prior to the effective
date of the Assignment and Acceptance related to such assignment, and, until the
effective date of such Assignment and Acceptance, the Syndication Agent, the
Administrative Agent and the Company shall be entitled conclusively to assume
that no assignment of any interest under this Agreement and any Note has been
made by any Bank or any assignee. Notwithstanding any other provision of this
Section 10.06, any Bank may at any time assign all or any portion of its rights
under this Agreement and the Note or Notes held by it to a Federal Reserve Bank;
PROVIDED that no such assignment shall release a Bank from any of its
obligations hereunder.
(d) By executing and delivering an Assignment and Acceptance, the assignor
Bank and the Eligible Assignee thereunder confirm to and agree with each other
and the other parties hereto as follows: (i) the assignor Bank represents and
warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, (ii) such assignor Bank
makes no representation or warranty, and assumes no responsibility with respect
to any statements, warranties or representations made by the Company, in or in
connection with this Agreement or with the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto, (iii) such assignor Bank makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto, (iv) such Eligible Assignee confirms that it
has received a copy of this Agreement together with copies of the financial
statements and other documents referred to in Section 5.01(e), Section 6.01(a)
(i), Section 6.01(a)(ii) and Section 6.01(a)(v) hereof and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance, (v) such Eligible
Assignee will, independently and without reliance upon any Agent or any Managing
Agent, such assignor Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement, (vi) such
Eligible Assignee appoints and authorizes each of the Syndication Agent and the
Administrative Agent to take such action as such Agent on its behalf and to
exercise such powers under this Agreement as are delegated to such Agent by the
terms hereof, together with such powers as are reasonably incidental thereto,
(vii) such Eligible Assignee agrees that it will perform all of the obligations,
in accordance with the terms thereof, of the assignor Bank under this Agreement
which are assumed by
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such Eligible Assignee under such Assignment and Acceptance, and (viii) such
Eligible Assignee confirms that it is an Eligible Assignee.
(e) The Administrative Agent shall maintain at its address listed on
Schedule II hereto a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Banks and the
Revolving Credit Commitment of, and principal amount of the Loans owing to, each
Bank from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the Agents, the
Managing Agents and the Banks may treat each person whose name is recorded in
the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Eligible Assignee, together with any Note or Notes subject
to such assignment and the written consent of the Company to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is precisely in the form of Exhibit G hereto (or as agreed upon by
the Company and the Administrative Agent), (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register, (iii)
give prompt notice thereof to the Company, and (iv) deliver a copy of such
Assignment and Acceptance to the Syndication Agent and the Company. Within five
Business Days after receipt of such Assignment and Acceptance, the Company, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note or Notes to the order of
such Eligible Assignee in an amount equal to its portion of the Revolving Credit
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained any Revolving Credit Commitment hereunder, a new
Note or Notes to the order of the assigning Bank in an amount equal to the
Revolving Credit Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or Exhibit A-2 hereto, as appropriate. The Notes surrendered by
the assigning Bank shall be marked "canceled" and returned by the Administrative
Agent to the Company.
(g) If, pursuant to this Section 10.06, any interest in this Agreement, any
Loan or any Note is transferred to any Participant (a "Transferee") which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Bank shall cause such Transferee, concurrently
with the effectiveness of such transfer, (i) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative Agent and the
Company) that under applicable law and treaties no taxes will be required to be
withheld by the Administrative Agent, the Company or the transferor Bank with
respect to any payments to be made to such
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Transferee in respect of the Loans, (ii) to furnish to the transferor Bank in
duplicate, for each taxable year of such Transferee during which interest
arising under or in connection with this Agreement is received, and before
payment by the Company of any such interest during such year (or at any other
time as required under United States income tax law), a properly completed and
executed copy of either Internal Revenue Service Form W-8BEN or Internal Revenue
Service Form W-8ECI or Internal Revenue Service Form W-9 and any additional form
(or such other form) as is necessary to claim complete exemption from United
States withholding taxes (wherein such Transferee claims entitlement to complete
exemption from United States withholding taxes on all payments hereunder), (iii)
to agree (for the benefit of the transferor Bank, the Administrative Agent and
the Company) to provide to the transferor Bank a new Internal Revenue Service
Form W-8BEN or Internal Revenue Service Form W-8ECI or Internal Revenue Service
Form W-9 and any such additional form (or any successor form or forms) upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable United States laws and regulations and
amendments duly executed and completed by such Transferee, and to comply from
time to time with all applicable United States laws and regulations with regard
to such withholding tax exemption, and (iv) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative Agent and the
Company) that the form or forms so filed will be true and complete.
SECTION 10.07. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by the Banks and the agreement to extend and maintain
the credit provided hereunder, the Company hereby agrees to indemnify, exonerate
and hold each of the Banks, the Agents, the Managing Agents, and each of the
officers, directors, employees and agents of each of the Banks, the Agents and
the Managing Agents, and each Person, if any, who controls any such Bank, such
Agent or any such Managing Agent, or any such officer, director, employee or
agent, within the meaning of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended (herein collectively called the
"INDEMNITEES" and individually called an "INDEMNITEE"), free and harmless from
and against any and all actions, claims, causes of action, suits, losses,
liabilities, damages and expenses, including without limitation, reasonable
attorneys' fees and disbursements (herein collectively called the "INDEMNIFIED
LIABILITIES"), which may be incurred by or asserted against the Indemnitees or
any Indemnitee as a result of, or arising out of, or relating to, or in
connection with, any investigation, litigation or proceeding related to (i) any
use made or proposed to be made by the Company of the proceeds of any Loan, (ii)
the consummation of the transactions contemplated by any such use or proposed
use, (iii) any untrue statement or alleged untrue statement of any material fact
made by the Company in connection therewith, or (iv) the omission or alleged
omission by the Company to state in connection therewith a material fact
required to be so stated or necessary to make the statements made, in light of
the circumstances under which they were made, not misleading, whether or not any
such Indemnitee is a party thereto, and, to the extent that the foregoing
undertaking may be unen-
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79
forceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law; PROVIDED, HOWEVER, that
there shall be no right to indemnification or contribution under this Section
10.07 for Indemnified Liabilities based upon or arising out of actions or
omissions by any Bank in a capacity other than that of a lender to the Company
or by any Agent or any Managing Agent in its capacity other than that as agent
for the Banks hereunder. Each Indemnitee will use its best efforts to promptly
notify the Company of each event of which it has knowledge which may give rise
to a claim under the indemnification provisions of this Section 10.07. If any
action, suit or proceeding arising from any of the foregoing is brought against
any Agent or any Managing Agent, any Bank or any other Person indemnified or
intended to be indemnified pursuant to this Section 10.07, the Company, to the
extent and in the manner directed by the Person or Persons indemnified or
intended to be indemnified, will resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel designated
by the Company (which counsel shall be reasonably satisfactory to the Person or
Persons indemnified or intended to be indemnified). Each Indemnitee will use its
best efforts to cooperate in the defense of any such action, suit or proceeding.
If the Company shall fail to do any act or thing which it has covenanted to do
hereunder or any representation or warranty on the part of the Company contained
herein shall be breached, the Syndication Agent may (but shall not be obligated
to) do the same or cause it to be done or remedy any such breach, and may expend
its funds for such purpose. Any and all amounts so expended by the Syndication
Agent shall be repayable to it by the Company immediately upon the Syndication
Agent's demand therefor, with interest at a rate per annum (computed on the
basis of a year consisting of 365 or, when appropriate, 366 days) equal to the
sum of (i) the Alternate Base Rate in effect from time to time during the period
from and including the date so expended by the Syndication Agent to the date of
repayment, PLUS (ii) two percent (2%) per annum. The Company shall have no
obligation to any Indemnitee under this Section 10.07 to the extent that
Indemnified Liabilities result from gross negligence or wilful misconduct on the
part of such Indemnitee. The obligations of the Company under this Section 10.07
shall survive the termination of this Agreement and the discharge of the
Company's other obligations hereunder. The obligations of each Bank (and of each
other Indemnitee with respect to such Bank) under this Section 10.07 shall
survive the termination of this Agreement or, if earlier, the termination of the
Revolving Credit Commitment of such Bank.
SECTION 10.08. REFERENCE BANKS. Each Reference Bank agrees to use its best
efforts to furnish quotations to the Administrative Agent as contemplated hereby
by 10:30 a.m., New York City time, on the day such quotations are required to be
furnished hereunder. If any Reference Bank does not furnish a timely quotation,
the Administrative Agent shall determine the relevant Eurodollar Rate, Term
Federal Funds Rate or Certificate of Deposit Rate, as the case may be, on the
basis of the quotations, if any, furnished by the remaining Reference Banks and,
in the event that all Reference Banks fail to so furnish a quotation, on the
basis of such other
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information as the Administrative Agent in its sole discretion shall deem
appropriate. If any Reference Bank assigns its Notes to an unaffiliated
institution, the Administrative Agent shall, in consultation with the Company,
and with the consent of the Required Banks, appoint another Bank to act as a
Reference Bank hereunder. If the Company is entitled to replace any Bank (which
is also a Reference Bank) as provided in Section 2.09(e), Section 2.13(c),
Section 2.14 or Section 4.03(b) hereof, the Company may, in consultation with
the Administrative Agent, and with the consent of the Required Banks, appoint a
replacement Reference Bank.
SECTION 10.09. HEADINGS. Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 10.10. CIRCUMSTANCES REQUIRING CONSULTATION. In the event that (i)
additional amounts have become payable to an Affected Bank as a result of the
occurrence of circumstances referred to in Section 2.09 hereof, (ii) any
Affected Bank shall have made a determination pursuant to Section 4.03(a)
hereof, or (iii) additional amounts have become payable to any Bank or any
Participant pursuant to Section 2.13 hereof, then, and in any such event, such
Affected Bank, Bank or Participant, as the case may be, shall promptly consult
with the Administrative Agent and the Company in order to endeavor, and such
Affected Bank, Bank or Participant, as the case may be, shall use its best
efforts, to take such action as, in the good faith judgment of such Affected
Bank, Bank or Participant, is then reasonable and practicable under the
circumstances (including, without limitation, changing the location of its
lending office or participating office, as the case may be, in order to move the
situs of such Affected Bank's or Bank's Loans or such Participant's
participation to another jurisdiction, if possible without material liability,
cost or expense to such Affected Bank, Bank or Participant and without material
reduction to such Affected Bank or Bank of any amount otherwise receivable by
such Affected Bank or Bank under this Agreement and such Affected Bank's or
Bank's Notes or receivable by such Participant under its participation) to
mitigate or eliminate the effect of such event. In addition, in the event that
(i) any Bank or Participant shall, as a result of reserves maintained by such
Bank or Participant with any Federal Reserve Bank of the United States in
connection with any of the Loans or participations, be entitled to receive, and
receive, amounts from such Federal Reserve Bank (in the form of interest or
otherwise) in respect of such reserves, or (ii) any Bank or Participant shall
receive any similar (or other) benefit as a result of actions taken by such Bank
or Participant with respect to any Capital Adequacy Rule, then, and in any such
event, such Bank or Participant shall promptly consult with the Administrative
Agent and the Company in order to endeavor, and such Bank or Participant shall
use its best efforts, to take such action as, in the good faith judgment of such
Bank or Participant, is then reasonable and practicable under the circumstances
to give the benefit of such amounts or benefits to the Company.
[NYCorp;1203895.1]
81
SECTION 10.11. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
SECTION 10.12. GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 10.13. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF
JURY TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY WITH RESPECT TO
THIS AGREEMENT OR ANY NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE CITY OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE COMPANY ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN
TAKEN OR IS AVAILABLE. THE COMPANY IRREVOCABLY AGREES THAT ALL PROCESS IN ANY
SUCH PROCEEDINGS IN ANY SUCH COURT MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH ON SCHEDULE II HERETO OR AT SUCH
OTHER ADDRESS OF WHICH THE SYNDICATION AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE COMPANY TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE COMPANY, THE AGENTS, THE
MANAGING AGENTS AND THE BANKS IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION
OR PROCEEDING IN ANY SUCH JURISDICTION. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR LIMIT THE RIGHT
OF ANY BANK TO BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURT OF ANY OTHER
COMPETENT JURISDICTION.
[NYCorp;1203895.1]
82
SECTION 10.14. SEVERABILITY OF PROVISIONS. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10.15. WAIVER OF CERTAIN PROVISIONS UNDER THE EXISTING CREDIT
AGREEMENT. Each Bank which is also a party to the Existing Credit Agreement
(whether acting in its capacity as a bank or an agent thereunder) and the
Company (i) hereby agree that on the Effective Date the commitments under the
Existing Credit Agreement shall be terminated, and the loans, if any,
outstanding thereunder, and accrued interest thereon, and any accrued facility
fee, shall be prepaid by the Company, and (ii) hereby waive any provisions of
the Existing Credit Agreement which would require a longer notice period or a
different type of notice.
SECTION 10.16. PROCEDURES RELATING TO ADDENDUM. On or prior to the
Effective Date a bank may deliver an Addendum in accordance with the provisions
of this Section 10.16.
(a) BANKS LISTED ON THE SIGNATURE PAGES. A bank listed on the signature
pages hereto may become a party hereto, and may increase or decrease the amount
of its Revolving Credit Commitment as set forth opposite its name on Schedule I
hereto by delivering an Addendum, appropriately completed and duly executed, to
the Company. Upon acceptance of such Addendum by the Company, such bank shall
become a party to this Agreement as a Bank with the Revolving Credit Commitment
set forth in such Addendum with the same effect as if such bank had executed
this Agreement by signing on the signature pages hereto.
(b) BANKS NOT LISTED ON SIGNATURE PAGES. A bank not listed on the signature
pages to this Agreement may become a party hereto by delivering an Addendum,
appropriately completed and duly executed, to the Company. Upon acceptance of
such Addendum by the Company, such bank shall become a party to this Agreement
as a Bank with the Revolving Credit Commitment set forth in such Addendum with
the same effect as if such bank had executed this Agreement by signing on the
signature pages hereto.
(c) AUTOMATIC AMENDMENT OF THE AGREEMENT. Upon acceptance by the Company of
an Addendum conforming to the requirements of this Section 10.16, Schedule I and
Schedule II hereto shall be amended automatically to reflect the changes in
Revolving Credit Commitments and other information set forth in such Addendum.
(d) NOTIFICATION OF ADMINISTRATIVE AGENT, ETC. The Company shall notify the
Administrative Agent promptly of the Company's acceptance of any Addendum and
[NYCorp;1203895.1]
83
shall furnish the Administrative Agent copies of the same. The Company may not
accept an Addendum after the Effective Date.
SECTION 10.17. MAXIMUM INTEREST. Nothing contained in this Agreement shall
be deemed to establish or require the payment of interest at a rate in excess of
the maximum rate permitted by applicable law. In the event that the rate of
interest required to be paid to any of the Banks under this Agreement exceeds
the maximum rate permitted by applicable law, the rate of interest required to
be paid to such Banks hereunder shall be automatically reduced to the maximum
rate permitted by applicable law.
SECTION 10.18. SPECIAL TERMINATION PROVISION. If the Effective Date has not
occurred on or prior to January 15, 2001, then the obligations of the Banks
hereunder shall terminate and this Agreement shall cease to be binding upon the
parties hereto,
[NYCorp;1203895.1]
84
except that the obligations of the Company under Section 10.04 and Section 10.07
hereof shall survive such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
OCCIDENTAL PETROLEUM CORPORATION,
By /s/ Michael P. Miller
--------------------------------------------
Name: Michael P. Miller
Title: Senior Assistant Treasurer
THE CHASE MANHATTAN BANK, in its individual
capacity and as Syndication Agent,
By /s/ Robert C. Mertensotto
--------------------------------------------
Name: Robert C. Mertensotto
Title: Managing Director
THE BANK OF NOVA SCOTIA, in its individual
capacity and as Administrative Agent,
By /s/ M. Van Otterloo
--------------------------------------------
Name: M. Van Otterloo
Title: Managing Director
BANK OF AMERICA, N.A., in its individual capacity
and as Co-Documentation Agent,
By /s/ Claire M. Liu
--------------------------------------------
Name: Claire M. Liu
Title: Managing Director
[NYCorp;1203895.1]
85
ABN AMRO BANK N.V., in its individual capacity and
as Co-Documentation Agent,
By /s/ William M. Guilford
--------------------------------------------
Name: William M. Guilford
Title: Senior Vice President
By /s/ Dana L. Montgomery
--------------------------------------------
Name: Dana L. Montgomery
Title: Assistant Vice President
[NYCorp;1203895.1]
86
BANK ONE, NA, in its individual capacity and as a
Managing Agent,
By /s/ Jeanie Harman
--------------------------------------------
Name: Jeanie Harman
Title: First Vice President
[NYCorp;1203895.1]
87
THE BANK OF NEW YORK, in its individual capacity
and as a Managing Agent,
By /s/ Raymond J. Palmer
--------------------------------------------
Name: Raymond J. Palmer
Title: Vice President
[NYCorp;1203895.1]
88
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH, in its individual
capacity and as a Managing Agent,
By /s/ Peter Obermann
--------------------------------------------
Name: Peter Obermann
Title: Senior Vice President
By /s/ James Boyle
--------------------------------------------
Name: James Boyle
Title: Vice President
[NYCorp;1203895.1]
89
BNP PARIBAS, in its individual capacity and as a
Managing Agent,
By /s/ Brian M. Malone
--------------------------------------------
Name: Brian M. Malone
Title: Director
By /s/ Larry Robinson
--------------------------------------------
Name: Larry Robinson
Title: Vice President
[NYCorp;1203895.1]
90
CITICORP USA, INC., in its individual capacity and as
a Managing Agent,
By /s/ Henry J. Matthews
--------------------------------------------
Name: Henry J. Matthews
Title: Vice President
[NYCorp;1203895.1]
91
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, each in its individual capacity
and as a Managing Agent,
By /s/ Christian Jagenberg
--------------------------------------------
Name: Christian Jagenberg
Title: SVP and Manager
By /s/ Steven F. Larsen
--------------------------------------------
Name: Steven F. Larsen
Title: SVP
[NYCorp;1203895.1]
92
CREDIT LYONNAIS NEW YORK BRANCH, in its
individual capacity and as a Managing Agent,
By /s/ Philippe Soustra
--------------------------------------------
Name: Philippe Soustra
Title: Senior Vice President
[NYCorp;1203895.1]
93
CREDIT SUISSE FIRST BOSTON, in its individual
capacity and as a Managing Agent,
By /s/ James P. Moran
--------------------------------------------
Name: James P. Moran
Title: Director
By /s/ David W. Kratovil
--------------------------------------------
Name: David W. Kratovil
Title: Director
[NYCorp;1203895.1]
94
THE INDUSTRIAL BANK OF JAPAN, LIMITED, in
its individual capacity and as a Managing Agent,
By /s/ Carl-Eric Benzinger
--------------------------------------------
Name: Carl-Eric Benzinger
Title: Senior Vice President &
Senior Deputy General Manager
[NYCorp;1203895.1]
95
NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH, in its individual capacity and as a
Managing Agent,
By /s/ Keith Johnson
--------------------------------------------
Name: Keith Johnson
Title: Senior Vice President
NATIONAL WESTMINSTER BANK PLC, NASSAU
BRANCH, in its individual capacity and as a
Managing Agent,
By /s/ Keith Johnson
--------------------------------------------
Name: Keith Johnson
Title: Senior Vice President
[NYCorp;1203895.1]
96
SOCIETE GENERALE, in its individual capacity and
as a Managing Agent,
By /s/ David Bird
--------------------------------------------
Name: David Bird
Title: Vice President
[NYCorp;1203895.1]
97
FLEET NATIONAL BANK,
By /s/ Sarah P.Z. Dwyer
--------------------------------------------
Name: Sarah P.Z. Dwyer
Title: Vice President
[NYCorp;1203895.1]
98
MELLON BANK, N.A.,
By /s/ Mark W. Rogers
--------------------------------------------
Name: Mark W. Rogers
Title: Vice President
[NYCorp;1203895.1]
99
RIYAD BANK, HOUSTON AGENCY,
By /s/ Paul N. Travis
--------------------------------------------
Name: Paul N. Travis
Title: Vice President & Head of Marketing
By /s/ Richard P. Zimpfer, II
--------------------------------------------
Name: Richard P. Zimpfer, II
Title: Vice President & Controller
[NYCorp;1203895.1]
100
ARAB BANK PLC,
By /s/ Samer Tamimi
--------------------------------------------
Name: Samer Tamimi
Title: VP
[NYCorp;1203895.1]
101
BANCA DI ROMA, SAN FRANCISCO BRANCH,
By /s/ Richard G. Dietz
--------------------------------------------
Name: Richard G. Dietz (# 97271)
Title: Vice President
By /s/ Thomas C. Woodruff
--------------------------------------------
Name: Thomas C. Woodruff (# 97969)
Title: Vice President
[NYCorp;1203895.1]
102
BBL INTERNATIONAL (U.K.) LIMITED,
By /s/ C.F. Wright
--------------------------------------------
Name: C.F. Wright
Title: Authorised Signatory
By /s/ G.A. Michael
--------------------------------------------
Name: G.A. Michael
Title: Authorised Signatory
[NYCorp;1203895.1]
103
KBC BANK N.V.,
By /s/ Jean-Pierre Diels
--------------------------------------------
Name: Jean-Pierre Diels
Title: First Vice President
By /s/ Michael V. Curran
--------------------------------------------
Name: Michael V. Curran
Title: Vice President
[NYCorp;1203895.1]
104
THE SAKURA BANK, LIMITED,
By /s/ Mr. Yoshikazu Nagura
--------------------------------------------
Name: Mr. Yoshikazu Nagura
Title: Senior Vice President
[NYCorp;1203895.1]
105
THE TOKAI BANK, LIMITED,
By /s/ Shinichi Nakatani
--------------------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
[NYCorp;1203895.1]
106
TORONTO DOMINION (TEXAS), INC.,
By /s/ Carol Brandt
--------------------------------------------
Name: Carol Brandt
Title: Vice President
[NYCorp;1203895.1]
107
UBS AG, STAMFORD BRANCH,
By /s/ Dorothy L. McKinley
--------------------------------------------
Name: Dorothy L. McKinley
Title: Director
Banking Products Services, US
By /s/ Thomas R. Salzano
--------------------------------------------
Name: Thomas R. Salzano
Title: Director
Banking Products Services, US
[NYCorp;1203895.1]
108
UNION BANK OF CALIFORNIA, N.A.,
By /s/ Dustin Gaspari
--------------------------------------------
Name: Dustin Gaspari
Title: Vice President
[NYCorp;1203895.1]
109
THE SANWA BANK LIMITED,
By /s/ Toshiko Boyd
--------------------------------------------
Name: Toshiko Boyd
Title: Vice President
[NYCorp;1203895.1]
110
THE DAI-ICHI KANGYO BANK, LTD.,
By /s/ Bertram H. Tang
--------------------------------------------
Name: Bertram H. Tang
Title: Vice President & Group Leader
[NYCorp;1203895.1]
111
THE FUJI BANK, LIMITED,
By /s/ Shinzo Nishitate
--------------------------------------------
Name: Shinzo Nishitate
Title: Senior Vice President
[NYCorp;1203895.1]
112
THE SUMITOMO BANK, LIMITED,
By /s/ Al Galluzzo
--------------------------------------------
Name: Al Galluzzo
Title: Senior Vice President
[NYCorp;1203895.1]
113
SCHEDULE I TO
FIVE-YEAR CREDIT AGREEMENT
AMOUNT OF COMMITMENTS
AMOUNT OF
REVOLVING
CREDIT
NAME OF BANK COMMITMENT
- ------------ ----------
THE CHASE MANHATTAN BANK $ 61,250,000
ABN AMRO BANK N.V. $ 61,250,000
BANK OF AMERICA, N.A. $ 61,250,000
THE BANK OF NOVA SCOTIA $ 61,250,000
BANK ONE, NA $ 40,000,000
THE BANK OF NEW YORK $ 40,000,000
BAYERISCHE LANDESBANK $ 40,000,000
GIROZENTRALE, CAYMAN
ISLANDS BRANCH
BNP PARIBAS $ 40,000,000
CITICORP USA, INC. $ 40,000,000
COMMERZBANK AG, NEW $ 40,000,000
YORK BRANCH
CREDIT LYONNAIS NEW YORK $ 40,000,000
BRANCH
CREDIT SUISSE FIRST BOSTON $ 40,000,000
NATIONAL WESTMINSTER $ 40,000,000
BANK PLC, NEW YORK BRANCH
SOCIETE GENERALE $ 40,000,000
FLEET NATIONAL BANK $ 30,000,000
THE INDUSTRIAL BANK OF $ 30,000,000
JAPAN, LIMITED
MELLON BANK, N.A. $ 30,000,000
[NYCorp;1203895.1]
AMOUNT OF
REVOLVING
CREDIT
NAME OF BANK COMMITMENT
- ------------ ----------
RIYAD BANK, HOUSTON $ 30,000,000
AGENCY
ARAB BANK PLC $ 20,000,000
BANCA DI ROMA, SAN $ 20,000,000
FRANCISCO BRANCH
BBL INTERNATIONAL (U.K.) $ 20,000,000
LIMITED
KBC BANK N.V. $ 20,000,000
THE SAKURA BANK, LIMITED $ 20,000,000
THE TOKAI BANK, LIMITED $ 20,000,000
TORONTO DOMINION (TEXAS), $ 20,000,000
INC.
UBS AG, STAMFORD BRANCH $ 20,000,000
UNION BANK OF CALIFORNIA, $ 20,000,000
N.A.
THE DAI-ICHI KANGYO BANK, $ 15,000,000
LTD.
THE FUJI BANK, LIMITED, LOS $ 15,000,000
ANGELES AGENCY
THE SANWA BANK LIMITED $ 15,000,000
THE SUMITOMO BANK, LIMITED $ 10,000,000
TOTAL COMMITMENT $1,000,000,000
AMOUNT
[NYCorp;1203895.1]
Sch. I, p.2
SCHEDULE II TO
FIVE-YEAR CREDIT AGREEMENT
ADDRESSES, TELECOPIER AND TELEPHONE NUMBERS
If to OCCIDENTAL OCCIDENTAL PETROLEUM CORPORATION
PETROLEUM CORPORATION: 10889 Wilshire Boulevard
Los Angeles, CA 90024
Attention: Treasurer
Tel. No. (310) 208-8800
Telecopier No. (310) 443-6661
If to THE CHASE MANHATTAN THE CHASE MANHATTAN BANK
BANK: 600 Travis Street
20th Floor
Houston, TX 77002
Attention: Ms. Beth Lawrence
Tel. No. (713) 216-5968
Telecopier No. (713) 216-8870
With copies to:
THE CHASE MANHATTAN BANK
600 Travis Street
20th Floor
Houston, TX 77002
Attention: Ms. June Brand
Tel. No. (713) 216-4327
Telecopier No. (713) 216-4117
and
THE CHASE MANHATTAN BANK
1 Chase Manhattan Plaza
8th floor
New York, NY 10081
Attention: Ms. Joselin Fernandes
Tel. No. (212) 552-7414
Telecopier No. (212) 552-5777
[NYCorp;1203895.1]
If to ABN AMRO ABN AMRO BANK N.V.
BANK N.V.: 203 South LaSalle, Suite 1500
Chicago, IL 60604-1003
Attention: Credit Administration
Tel. No. (312) 992-5110
Telecopier No. (312) 992-5111
With copy to:
ABN AMRO BANK N.V.
Three Riverway, Suite 1700
Houston, TX 77056
Attention: Mr. Bryan Chapman
Tel. No. (713) 964-3361
Telecopier No. (713) 621-5801
If to THE BANK OF NOVA THE BANK OF NOVA SCOTIA
SCOTIA: 600 Peachtree Street N.E.,
Suite 2700
Atlanta, GA 30308-2214
Attention: Ms. Sonia McKoy
Tel. No. (404) 877-1553
Telecopier No. (404) 888-8998
With copy to:
THE BANK OF NOVA SCOTIA
580 California Street, Suite 2100
San Francisco, CA 94104
Attention: Mr. Maarten Van Otterloo
Tel. No. (415) 986-1100
Telecopier No. (415) 397-0791
If to BANK OF AMERICA, N.A.: BANK OF AMERICA, N.A.
333 Clay Street, Suite 4550
Dallas, TX 77002
Attention: Ms. Brandi Baker
Tel. No. (713) 651-4863
Telecopier No. (214) 290-9415
[NYCorp;1203895.1]
Sch. II, p.2
If to BANK ONE, NA: BANK ONE, NA
1 Bank One Plaza
Suite IL1-0353
Chicago, IL 60670
Attention: Mr. Sean Drinan
Tel. No. (312) 732-5085
Telecopier No. (312) 732-3055
If to THE BANK OF THE BANK OF NEW YORK
NEW YORK: One Wall Street
19th Floor
New York, NY 10286
Attention: Ms. Lisa Williams
Tel. No. (212) 635-7535
Telecopier No. (212) 635-7923
If to BAYERISCHE BAYERISCHE LANDESBANK
LANDESBANK GIROZENTRALE, GIROZENTRALE, CAYMAN ISLANDS
CAYMAN ISLANDS BRANCH: BRANCH
560 Lexington Avenue
New York, NY 10022
Attention: Ms. Patricia Sanchez
Tel. No. (212) 310-9810
Telecopier No. (212) 310-9930
If to BNP PARIBAS: BNP PARIBAS
1200 Smith Street
Suite 3100
Houston, TX 77002
Attention: Mr. Brian Malone
Tel. No. (713) 982-1153
Telecopier No. (713) 659-6915
If to CITICORP USA, INC.: CITICORP USA, INC.
c/o Citibank Delaware Global Loan
Service Center
2 Penn's Way
New Castle, DE 19720
Attention: Mr. Shane Penick
Tel. No. (302) 894-6077
Telecopier No. (302) 894-6120
[NYCorp;1203895.1]
Sch. II, p.3
with copy to:
CITICORP USA, INC.
1200 Smith Street
Suite 2000
Houston, TX 77002
Attention: Mr. Todd Mogil
Tel No. (713) 654-3559
Telecopier No. (713) 654-2849
If to COMMERZBANK AG, COMMERZBANK AG, NEW YORK
NEW YORK BRANCH OR BRANCH
GRAND CAYMAN BRANCH: 2 World Financial Center
New York, NY 10281-1050
Attention: Monica Aguirre
Tel No. (212) 266-7278
Telecopier No. (212) 298-8111
If to CREDIT LYONNAIS CREDIT LYONNAIS NEW YORK BRANCH
NEW YORK BRANCH: Houston Representative Office
1000 Louisiana
Suite 5360
Houston, TX 77002
Attention: Mr. C. Page Dillehunt
Tel. No. (713) 753-8719
Telecopier No. (713) 751-0307
If to CREDIT SUISSE CREDIT SUISSE FIRST BOSTON
FIRST BOSTON: 5 World Trade Center
New York, NY 10048
Attention: Mr. Jenero Sarasola
Tel. No. (212) 322-1384
Telecopier No. (212) 335-0593
[NYCorp;1203895.1]
Sch. II, p.4
If to NATIONAL WESTMINSTER NATIONAL WESTMINSTER BANK PLC,
BANK PLC, NEW YORK NEW YORK BRANCH
BRANCH OR NASSAU BRANCH: 65 East 55th Street, 24th Floor
New York, NY 10022
Attention: Sheila Shaw
Tel. No. (212) 401-1406
Telecopier No. (212) 401-1494
If to SOCIETE GENERALE: SOCIETE GENERALE
560 Lexington Avenue, 4th Floor
New York, NY 10020
Attention: Ms. Candice Hellers
Tel. No. (212) 278-6167
Telecopier No. (212) 278-7343
If to FLEET NATIONAL BANK: FLEET NATIONAL BANK
100 Federal Street
Mail Stop MA DE 10008A
Boston, MA 02110
Attention: Ms. Sarah Dwyer
Tel. No. (617) 434-5934
Telecopier No. (617) 434-3652
If to THE INDUSTRIAL BANK THE INDUSTRIAL BANK OF JAPAN,
OF JAPAN, LIMITED: LIMITED
350 South Grand Avenue
Suite 1500
Los Angeles, CA 90071
Attention: Mr. Carl-Eric Benzinger
Tel. No. (213) 893-6422
Telecopier No. (213) 488-9840
If to MELLON BANK, N.A.: MELLON BANK, N.A.
Three Mellon Center
Room 1203
Loan Administration
Pittsburgh, PA 15259-0003
Attention: Ms. Brenda Leierzapf
Tel. No. (412) 234-8161
Telecopier No. (412) 209-6146
[NYCorp;1203895.1]
Sch. II, p.5
With copy to:
MELLON BANK, N.A.
One Mellon Center
Pittsburgh, PA 15258-0001
Attention: Mr. Mark W. Rogers
Tel. No. (412) 234-1888
Telecopier No. (412) 236-1840
IF TO RIYAD BANK, RIYAD BANK, HOUSTON AGENCY
HOUSTON AGENCY: 700 Louisiana Street
Suite 4770
Houston, TX 77002
Attention: Mr. Paul N. Travis
Tel No. (713) 331-2021
Telecopier No. (713) 331-2043
If to ARAB BANK PLC: ARAB BANK PLC
520 Madison Avenue
New York, NY 10022
Attention: Mr. Justo Huapaya
Tel. No. (212) 715-9713
Telecopier No. (212) 593-4632
IF TO BANCA DI ROMA, BANCA DI ROMA, SAN FRANCISCO
SAN FRANCISCO BRANCH: BRANCH
One Market
Steuart Tower, Suite 1000
San Francisco, CA 94105
Attention: Mr. Richard G. Dietz
Tel. No. (415) 977-7310
Telecopier No. (415) 357-9869
If to BBL INTERNATIONAL BBL INTERNATIONAL (U.K.) LIMITED
(U.K.) LIMITED: 6 Broadgate
London EC2M 2AJ, ENGLAND
Attention: Credit Administration
Tel. No. 00-44-207-247-1277
Telecopier No. 00-44-207-562-0208
[NYCorp;1203895.1]
Sch. II, p.6
If to KBC BANK N.V.: KBC BANK N.V.
Los Angeles Representative Office
515 S. Figueroa Street, Suite 1920
Los Angeles, CA 90071
Attention: Daniel To
Tel. No. (213) 996-7534
Telecopier No. (213) 629-5801
If to THE SAKURA BANK, THE SAKURA BANK, LIMITED
LIMITED: 101 Park Avenue, 17th Floor
New York, NY 10178
Attention: Ms. Mariko Stewart
Tel. No. (212) 909-4471
Telecopier No. (212) 593-1798
If to THE TOKAI BANK, THE TOKAI BANK, LIMITED
LIMITED: 55 E. 52nd Street
New York, NY 10055
Attention: Mr. Kazuhiro Nishikawa
Tel. No. (212) 339-1165
Telecopier No. (212) 832-1428
If to TORONTO DOMINION TORONTO DOMINION (TEXAS), INC.
(TEXAS), INC.: 909 Fannin Street
Houston, TX 77010
Attention: Ms. Carol Brandt
Tel. No. (713) 653-8204
Telecopier No. (713) 951-9921
If to UBS AG, STAMFORD UBS AG, STAMFORD BRANCH
BRANCH: 677 Washington Boulevard
Stamford, CT 06901
Attention: Ms. Deborah Porter
Tel. No. (203) 719-6403
Telecopier No. (203) 719-3888
[NYCorp;1203895.1]
Sch. II, p.7
If to UNION BANK OF UNION BANK OF CALIFORNIA, N.A.
CALIFORNIA, N.A.: 500 North Akard, Suite 4200
Dallas, TX 75201
Attention: Mr. Dustin Gaspari
Tel. No. (214) 922-4204
Telecopier No. (214) 922-4209
If to THE DAI-ICHI KANGYO THE DAI-ICHI KANGYO BANK, LTD.
BANK, LTD.: One World Trade Center, Suite 4911
New York, NY 10048
Attention: Wendy Yuen
Tel No. (212) 432-6691
Telecopier No. (212) 524-0049
If to THE FUJI BANK, THE FUJI BANK, LIMITED, LOS
LIMITED, ANGELES AGENCY
LOS ANGELES AGENCY: 333 South Hope Street
Suite 3900
Los Angeles, CA 90071
Attention: Ms. Sandy Walker
Tel. No. (213) 253-4136
Telecopier No. (213) 253-4178
If to THE SANWA BANK THE SANWA BANK LIMITED
LIMITED: 601 S. Figueroa Street, W5-4
Los Angeles, CA 90017
Attention: Washington Boza
Tel. No. (213) 896-7434
Telecopier No. (213) 623-4912
If to THE SUMITOMO BANK, THE SUMITOMO BANK, LIMITED
LIMITED: 277 Park Avenue
New York, NY 10172
Attention: Mr. Robert Bocchicchio
Tel. No. (212) 224-4061
Telecopier No. (212) 224-5192
[NYCorp;1203895.1]
Sch. II, p.8
EXHIBIT A-1
OCCIDENTAL PETROLEUM CORPORATION
COMPETITIVE NOTE
$1,000,000,000 New York, New York
January 4, 2001
FOR VALUE RECEIVED, the undersigned, OCCIDENTAL PETROLEUM CORPORATION, a
Delaware corporation (the "COMPANY"), hereby promises to pay to the order of
[ ] (the "BANK"), at the office of The Bank of Nova Scotia, at One
Liberty Plaza, New York, New York 10006, on (i) the last day of each Interest
Period as defined in the Five-Year Credit Agreement dated as of January 4, 2001,
among the Company, the banks parties thereto, The Chase Manhattan Bank, as
syndication agent, Bank of America, N.A. and ABN AMRO Bank N.V., as co-
documentation agents, and The Bank of Nova Scotia, as administrative agent, as
the same may at any time be amended or modified and in effect (the "CREDIT
AGREEMENT"), the aggregate unpaid principal amount of all Competitive Loans (as
defined in the Credit Agreement) made by the Bank to the Company pursuant to the
Credit Agreement to which such Interest Period applies and (ii) the Maturity
Date (as defined in the Credit Agreement), the lesser of the principal sum of
ONE BILLION DOLLARS ($1,000,000,000) and the aggregate unpaid principal amount
of all Competitive Loans made by the Bank to the Company pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest on the unpaid principal amount hereof from
time to time outstanding from the date hereof until paid, in like funds, at said
office, at a rate or rates per annum and payable on such dates as determined
pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue principal
hereof from the due date thereof until paid at a rate or rates determined as set
forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Bank of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All borrowings evidenced by this Competitive Note (together with the
interest rates with respect thereto) and all payments and prepayments of the
principal hereof, and the respective dates thereof, shall be endorsed by the
Bank on Schedule 1
[NYCorp;1203895.1]
attached hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof; PROVIDED, HOWEVER, that any failure
of the Bank to make such a notation or any error in such notation shall not in
any manner affect the obligation of the Company to make payments of principal
and interest with respect hereto in accordance with the terms of this
Competitive Note and the Credit Agreement.
This Competitive Note is one of the Competitive Notes referred to in, and
is subject to and governed by the terms and provisions of, the Credit Agreement
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for prepayment of the
principal hereof prior to the maturity thereof and for the amendment or waiver
of certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified. THIS COMPETITIVE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
OCCIDENTAL PETROLEUM CORPORATION
By
---------------------------------------------
Name:
Title:
[NYCorp;1203895.1]
Exh. A-1, p.2
SCHEDULE 1
TO COMPETITIVE NOTE
SCHEDULE 1 ATTACHED TO COMPETITIVE NOTE DATED
JANUARY 4, 2001, OF OCCIDENTAL PETROLEUM CORPORATION,
PAYABLE TO THE ORDER OF [__________]
COMPETITIVE LOANS AND PAYMENTS OF PRINCIPAL
Amount
Amount of Unpaid
of Interest Principal Principal Notation
Date Loan Rate Repaid Balance Made By
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
[NYCorp;1203895.1]
EXHIBIT A-2
OCCIDENTAL PETROLEUM CORPORATION
REVOLVING CREDIT NOTE
$[Amount of Bank's Revolving New York, New York
Credit Commitment] January 4, 2001
FOR VALUE RECEIVED, the undersigned, OCCIDENTAL PETROLEUM CORPORATION, a
Delaware corporation (the "COMPANY"), hereby promises to pay to the order of [ ]
(the "BANK"), at the office of The Bank of Nova Scotia, at One Liberty Plaza,
New York, New York 10006, on (i) the last day of each Interest Period as defined
in the Five-Year Credit Agreement dated as of January 4, 2001, among the
Company, the banks parties thereto, The Chase Manhattan Bank, as syndication
agent, Bank of America, N.A. and ABN AMRO Bank N.V., as co- documentation
agents, and The Bank of Nova Scotia, as administrative agent, as the same may at
any time be modified or amended and in effect (the "CREDIT AGREEMENT"), the
aggregate unpaid principal amount of each Revolving Credit Loan (as defined in
the Credit Agreement) made by the Bank to the Company pursuant to the Credit
Agreement to which such Interest Period applies and (ii) the Maturity Date (as
defined in the Credit Agreement) the lesser of the principal sum of [amount of
Bank's Revolving Credit Commitment] DOLLARS ($ ) and the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank to the Company
pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest on the unpaid
principal amount hereof from time to time outstanding from the date hereof until
paid, in like funds, at said office, at a rate or rates per annum and payable on
such dates as determined pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue principal
hereof from the due date thereof until paid at a rate or rates determined as set
forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Bank of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All borrowings evidenced by this Revolving Credit Note (together with the
interest rates with respect thereto) and all payments and prepayments of the
principal
[NYCorp;1203895.1]
hereof, and the respective dates thereof, shall be endorsed by the Bank on
Schedule 1 attached hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof; PROVIDED, HOWEVER, that
any failure of the Bank to make such a notation or any error in such notation
shall not in any manner affect the obligation of the Company to make payments of
principal and interest with respect hereto in accordance with the terms of this
Revolving Credit Note and the Credit Agreement.
This Revolving Credit Note is one of the Revolving Credit Notes referred to
in, and is subject to and governed by the terms and provisions of, the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for prepayment of
the principal hereof prior to the maturity thereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all upon the terms and
conditions therein specified. THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
OCCIDENTAL PETROLEUM CORPORATION
By
--------------------------------------
Name:
Title:
[NYCorp;1203895.1]
Exh. A-2, p.2
SCHEDULE 1
TO REVOLVING
CREDIT NOTE
SCHEDULE 1 ATTACHED TO REVOLVING CREDIT NOTE DATED
JANUARY 4, 2001, OF OCCIDENTAL PETROLEUM CORPORATION,
PAYABLE TO THE ORDER OF [______________]
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
Amount
Amount of Unpaid
of Interest Principal Principal Notation
Date Loan Rate Repaid Balance Made By
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
- ---- ------ ---------- ----------- ----------- --------
[NYCorp;1203895.1]
EXHIBIT B
COMPETITIVE BID REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation, a Delaware corporation
(the "Company"), refers to the Five-Year Credit Agreement dated as of January 4,
2001, among the Company, the banks parties thereto, The Chase Manhattan Bank, as
syndication agent, Bank of America, N.A. and ABN AMRO Bank N.V., as co-
documentation agents, and The Bank of Nova Scotia, as administrative agent.
Capitalized terms used herein and not defined shall have the meanings assigned
to such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to Section 2.02(b) of the
Credit Agreement that it requests a Competitive Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing
-----------------------------
(B) Principal amount of Competitive Borrowing 1
-----------------------------
(C) Interest rate basis 2
-----------------------------
- --------
1 Not less than $50,000,000 or greater than the available Total Commitment.
2 Eurodollar Loan, Certificate of Deposit Loan or Fixed Rate Loan.
[NYCorp;1203895.1]
(D) Interest Period and the last day thereof 3
-----------------------------
- --------
3 Which, in the case of Fixed Rate Loans, shall not be less than 8 days or
more than 360 days, and which in each case shall end not later than the Maturity
Date.
[NYCorp;1203895.1]
Exh. B, p.2
Upon acceptance of any or all of the Competitive Loans offered by the Banks
in response to this request, the Company shall be deemed to have represented and
warranted that each of the conditions to lending specified in Section 7.02 of
the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
-------------------------------------------
Name:
Title:
[NYCorp;1203895.1]
Exh. B, p.3
EXHIBIT C
NOTICE OF COMPETITIVE BID REQUEST
[Date]
[Name of Bank]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement dated as of January 4,
2001 (the "Credit Agreement"), among the Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), the banks parties thereto, The Chase
Manhattan Bank, as syndication agent, Bank of America, N.A. and ABN AMRO Bank
N.V., as co-documentation agents, and The Bank of Nova Scotia, as administrative
agent. Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Credit Agreement.
The Company made a Competitive Bid Request on , pursuant to Section 2.02 of
the Credit Agreement and in that connection you are invited to submit a
Competitive Bid by [Date]/[Time]1. Your Competitive Bid must comply with Section
2.02 of the Credit Agreement and the terms set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing
------------------------------
(B) Principal amount of Competitive Borrowing
------------------------------
(C) Interest rate basis
------------------------------
- --------
1 The Competitive Bid must be received by the Administrative Agent (i) in
the case of Eurodollar Loans, not later than 2:00 p.m., New York City time, four
Business Days before a proposed Competitive Borrowing, (ii) in the case of
Certificate of Deposit Loans, not later than 2:00 p.m., New York City time,
three Business Days before a proposed Competitive Borrowing and (iii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Borrowing Date of the proposed Competitive Borrowing.
[NYCorp;1203895.1]
(D) Interest Period and the last day thereof
------------------------------
Very truly yours,
THE BANK OF NOVA SCOTIA, as Administrative
Agent
By
------------------------------------------
Name:
Title:
[NYCorp;1203895.1]
Exh. C, p.2
EXHIBIT D
COMPETITIVE BID
[Date]
The Bank of Nova Scotia, as
Administrative Agent for the
Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Five-Year Credit Agreement
dated as of January 4, 2001 (the "Credit Agreement"), among the Occidental
Petroleum Corporation, a Delaware corporation (the "Company"), the banks parties
thereto, The Chase Manhattan Bank, as syndication agent, Bank of America, N.A.
and ABN AMRO Bank N.V., as co-documentation agents, and The Bank of Nova Scotia,
as administrative agent. Capitalized terms used herein and not defined shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.02(c)
of the Credit Agreement, in response to the Competitive Bid Request made by the
Company on , , and in that connection sets forth below the terms on which such
Competitive Bid is made:
(A) Principal amount 1
-------------
(B) Competitive Bid Rate 2
-------------
- --------
1 Not less than $5,000,000 and in integral multiples of $1,000,000 and
which may equal the entire aggregate principal amount of the Competitive
Borrowing requested by the Company. Multiple bids will be accepted by the
Administrative Agent.
2 I.E., in the case of Eurodollar Loans or Certificate of Deposit Loans,
the Margin, and in the case of Fixed Rate Loans, the fixed rate of interest
offered (expressed as a percentage rate per annum rounded, if necessary, to the
nearest
[NYCorp;1203895.1]
(C) Interest Period and the last day thereof
-------------
The undersigned hereby confirms that it is prepared to extend credit to the
Company upon acceptance by the Company of this bid in accordance with Section
2.02(e) of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By
---------------------------------------
Name:
Title:
- --------
1/10,000 of one percent).
[NYCorp;1203895.1]
Exh. D, p.2
EXHIBIT E
REVOLVING CREDIT BORROWING REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation, a Delaware corporation
(the "Company"), refers to the Five-Year Credit Agreement dated as of January 4,
2001 (the "Credit Agreement"), among the Company, the banks parties thereto (the
"Banks"), The Chase Manhattan Bank, as syndication agent, Bank of America, N.A.
and ABN AMRO Bank N.V., as co-documentation agents, and The Bank of Nova Scotia,
as administrative agent. Capitalized terms used herein and not defined shall
have the meanings assigned to such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to Section 2.01(b) of the
Credit Agreement that it requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Revolving Credit Borrowing is requested to be made:
(A) Date of Revolving Credit Borrowing
-------------
(B) Principal amount of Revolving Credit Borrowing 1
-------------
(C) Interest rate basis 2
-------------
(D) Interest Period and the last day thereof 3
-------------
- --------
1 Not less than $50,000,000 and in integral multiples of $10,000,000.
2 Eurodollar Loan, Certificate of Deposit Loan, Term Federal Funds Loan or
Alternate Base Rate Loan, or a combination thereof.
3 Which shall end not later than the Maturity Date.
[NYCorp;1203895.1]
Upon the borrowing of the Revolving Credit Loans to be made by the Banks in
response to this request, the Company shall be deemed to have represented and
warranted that each of the conditions to lending specified in Section 7.02 of
the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
-------------------------------------------
Name:
Title:
[NYCorp;1203895.1]
Exh. E, p.2
EXHIBIT F
OCCIDENTAL PETROLEUM CORPORATION
CERTIFICATE
(Pursuant to Section 7.01(c))
I, the undersigned, [an] [the] [Assistant] Secretary of OCCIDENTAL
PETROLEUM CORPORATION, a Delaware corporation (the "Company"), DO HEREBY CERTIFY
that:
1. This Certificate is furnished pursuant to Section 7.01(c) of that
certain Five-Year Credit Agreement, dated as of January 4, 2001, among the
Company, the banks parties thereto, The Chase Manhattan Bank, as
syndication agent, Bank of America, N.A. and ABN AMRO Bank N.V., as
co-documentation agents, and The Bank of Nova Scotia, as administrative
agent (such credit agreement, as in effect on the date of this Certificate,
being herein called the "Credit Agreement"). Unless otherwise defined
herein, capitalized terms used in this Certificate have the meanings
assigned to those terms in the Credit Agreement.
2. There have been no amendments to the Restated Certificate of
Incorporation of the Company since __________________________, 20____.*/
3. Attached hereto as Annex A is a true and correct copy of the
By-laws of the Company as in effect on the date hereof.
4. Attached hereto as Annex B is a true and correct copy of the
resolutions duly adopted by the [Executive Committee of] the Board of
Directors of the Company [by unanimous written consent] on, and effective
as of ______________, 20___, which resolutions have not been revoked,
modified, amended or rescinded and are still in full force and effect, and
the Credit Agreement and the Notes are in substantially the forms of those
documents submitted to and approved by the [Executive Committee of the]
Board of Directors of the Company.
5. The persons named in Annex C attached hereto have been duly elected
and have duly qualified as, and at all times since _____________, 20____
(to and including the date hereof) have been, officers of the Company,
holding the respective
- --------
*/ Insert a date which is on or before the date of the Secretary of State's
Certificate furnished pursuant to clause (i) of Section 7.01(b) of the Credit
Agreement.
[NYCorp;1203895.1]
offices set forth therein opposite their names, and the signatures set
forth therein opposite their names are their genuine signatures.
6. I know of no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
WITNESS my hand as of this 4th day of January 2001.
------------------------------------------
Name:
Title: [Assistant] Secretary
OCCIDENTAL PETROLEUM CORPORATION
I, the undersigned, a Vice President of the Company, DO HEREBY CERTIFY that
____________ is [a] [the] duly elected and qualified [Assistant] Secretary of
the Company and the signature above is his genuine signature.
WITNESS my hand as of this 4th day of January 2001.
------------------------------------------
Name:
Title: Vice President
OCCIDENTAL PETROLEUM CORPORATION
[NYCorp;1203895.1]
Exh. F, p.2
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated __________, ____
Reference is made to the Five-Year Credit Agreement dated as of January 4,
2001 (the "Credit Agreement"), among the OCCIDENTAL PETROLEUM CORPORATION, a
Delaware corporation (the "Company"), the banks parties thereto (the "Banks"),
The Chase Manhattan Bank, as syndication agent (in such capacity, the
"Syndication Agent"), Bank of America, N.A. and ABN AMRO Bank N.V., as
co-documentation agents, and The Bank of Nova Scotia, as administrative agent
(in such capacity, the "Administrative Agent"). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
_______________________________ (the "Assignor") and ___________________________
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a % interest in and to all the
Assignor's rights and obligations under the Credit Agreement as of the Effective
Date (as defined below) (including, without limitation, such percentage interest
in the Revolving Credit Commitment of the Assignor on the Effective Date and
such percentage interest in the Revolving Credit Loans [and Competitive Loans],
if any, owing to the Assignor outstanding on the Effective Date together with
such percentage interest in all unpaid interest with respect to such Revolving
Credit Loans [and Competitive Loans] and Facility Fees, if any, accrued to the
Effective Date and such percentage interest in the Revolving Credit Note [and
the Competitive Note] held by the Assignor [excluding, however, any interest in
the Competitive Loans owing to the Assignor outstanding on the Effective Date or
in the unpaid interest with respect to such Competitive Loans or in the
Competitive Note held by the Assignor]).
2. The Assignor (i) represents that as of the date hereof, its Revolving
Credit Commitment (without giving effect to assignments thereof which have not
yet become effective) is $ and the outstanding balance of its Revolving Credit
Loans (unreduced by any assignments thereof which have not yet become effective)
is $ [and the outstanding balance of its Competitive Loans (unreduced by any
assignments thereof which have not yet become effective) is $ ]; (ii) makes
[NYCorp;1203895.1]
no representation or warranty with respect to, and assumes no responsibility
with respect to any statements, warranties or representations made by the
Company in or in connection with, the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document furnished pursuant thereto;
(iii) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (v) attaches the Revolving Credit Note [and the Competitive Note] held by it
and requests that the Administrative Agent exchange such Note[s] for a new
Revolving Credit Note [and a new Competitive Note] payable to the Assignee in a
principal amount equal to ____________________ [and _____________, respectively]
[, and a new Revolving Credit Note [and a new Competitive Note] payable to the
Assignor in a principal amount equal to ______________ and _____________,
respectively].
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements and other documents referred to in Section 5.01(e), Section
6.01(a)(i), Section 6.01(a)(ii) and Section 6.01(a)(v) thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon any Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes each of the Syndication Agent and
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Syndication Agent or the Administrative Agent, as the case may be, by the terms
thereof, together with such powers as are reasonably incidental thereto; (vi)
agrees that it will perform in accordance with their terms all the obligations
of the Assignor under the Credit Agreement, assumed by it under this Assignment
and Acceptance, which by the terms of the Credit Agreement are required to be
performed by it as a Bank; [and] (vii) agrees that it will keep confidential all
information with respect to the Company furnished to it by the Company or the
Assignor (other than information generally available to the public or otherwise
available to the Assignor on a nonconfidential basis) [; and (viii) attaches the
forms referred to in Section 10.06(g) of the Credit Agreement as to the
Assignee's complete exemption from United States
[NYCorp;1203895.1]
Exh. G, p.2
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement*].
4. The effective date for this Assignment and Acceptance shall be (the
"Effective Date")**. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent pursuant to Section 10.06(e) of the Credit Agreement.
5. Upon such acceptance and recording, from and after the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement (except as provided in Section 2.13(b),
Section 10.02 and Section 10.07 thereof).
6. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall, directly between
themselves, make all appropriate adjustments in payments received from the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment.
7. Attached hereto is a Schedule containing the information in respect of
the Assignee that is set forth in Schedule II to the Credit Agreement in respect
of each Bank.
- --------
*/ If the Assignee is organized under the laws of a jurisdiction outside
the United States.
**/ See Section 10.06(c). Such date shall be at least five Business Days
after the execution of this Assignment and Acceptance and delivery thereof to
the Administrative Agent.
[NYCorp;1203895.1]
Exh. G, p.3
8. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
[NAME OF ASSIGNOR]
By
----------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
----------------------------------
Name:
Title:
Accepted this ____ day
of ___________ , ____
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By __________________________
Name:
Title:
[NYCorp;1203895.1]
Exh. G, p.4
EXHIBIT H
[LETTERHEAD OF ROBERT E. SAWYER, ESQ.,
COUNSEL TO THE COMPANY]
January 4, 2001
To each of the Banks parties
to the Credit Agreement
hereinafter referred to,
to The Chase Manhattan Bank,
as Syndication Agent, and
to The Bank of Nova Scotia, as
Administrative Agent
Re: Occidental Petroleum Corporation
Five-Year Credit Agreement dated as of
January 4, 2001
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), and have acted as counsel to the Company
in connection with the negotiation, execution and delivery by the Company of the
following agreement and documents:
(a) Five-Year Credit Agreement, dated as of January 4, 2001 (the
"Credit Agreement"), among the Company, the banks parties thereto
(collectively, the "Banks", and individually, a "Bank"), The Chase
Manhattan Bank, as syndication agent (in such capacity, the "Syndication
Agent"), Bank of America, N.A. and ABN AMRO Bank N.V., as co-documentation
agents for the Banks (in such capacity, the "Co-Documentation Agents"), and
The Bank of Nova Scotia, as administrative agent for the Banks (in such
capacity, the "Administrative Agent");
(b) [ ] separate Competitive Notes dated January 4, 2001, issued by the
Company pursuant to Section 2.06 of the Credit Agreement and payable to the
order of each of the Competitive Bid Banks, respectively;
[NYCorp;1203895.1]
(c) [ ] separate Revolving Credit Notes dated January 4, 2001, issued
by the Company pursuant to Section 2.06 of the Credit Agreement and payable
to the order of each of the Banks, respectively (the Competitive Notes and
the Revolving Credit Notes collectively, the "Notes"); and
(d) 364-Day Credit Agreement, dated as of January 4, 2001 (the "364-Day
Credit Agreement"), among the Company, the banks parties thereto, The Chase
Manhattan Bank, as syndication agent, Bank of America, N.A. and ABN AMRO
Bank N.A., as co-documentation agents for the Banks, and The Bank of Nova
Scotia, as administrative agent for the Banks.
This opinion is being delivered to you pursuant to Section 7.01(d) of the
Credit Agreement. Unless otherwise defined herein, terms used herein have the
meanings assigned to such terms in the Credit Agreement.
I am familiar with the corporate proceedings taken by the Company in
connection with the negotiation and authorization of the Credit Agreement and
the Notes and the transactions contemplated thereby. In addition, I have made
such inquiry of such officers and attorneys of the Company and its Subsidiaries
and examined such corporate records, certificates of officers of the Company, of
officers of the Company's Subsidiaries and of public officials and such other
documents and such questions of law and fact as I have considered necessary or
appropriate to form the basis of the opinions hereinafter expressed.
Based upon, and subject to, the foregoing and the four final paragraphs
hereof, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware; and the Company
has all requisite corporate power and authority (a) to own its assets and
to carry on the business in which it is engaged, (b) to execute, deliver
and perform its obligations under the Credit Agreement and the Notes, (c)
to borrow in the manner and for the purpose contemplated by the Credit
Agreement, and (d) to issue the Notes in the manner and for the purpose
contemplated by the Credit Agreement.
2. The execution and delivery by the Company of the Credit Agreement
and the Notes, the performance by the Company of its obligations under the
Credit Agreement and the Notes, the Borrowings by the Company in the manner
and for the purpose contemplated by the Credit Agreement, and the issuance
by the Company of the Notes in the manner and for the purpose contemplated
by the Credit Agreement have been duly authorized by all necessary
corporate action (including any necessary stockholder action) on the part
of the Company, and do
[NYCorp;1203895.1]
Exh. H, p.2
not and will not (a) violate any provision of any Federal, New York or
California law, rule or regulation (including, without limitation,
Regulation U and Regulation X) presently in effect having applicability to
the Company (or any Specified Subsidiary), or of any order, writ, judgment,
decree, determination or award known to me which is presently in effect and
which has applicability to the Company (or any Specified Subsidiary), or of
the charter or By-laws of the Company (or any Specified Subsidiary), or
(b), subject to the Company's compli ance with any applicable covenants
pertaining to its incurrence of unsecured indebtedness, result in a breach
of or constitute a default under any indenture or loan or credit agreement,
or any other agreement or instrument, in each case known to me, to which
the Company or any Specified Subsidiary is a party or by which the Company
or any Specified Subsidiary or its respective properties may be bound or
affected, or (c) to the best of my knowledge, result in, or require, the
creation or imposition of any Lien of any nature upon or with respect to
any of the properties now owned or hereafter acquired by the Company (other
than any right of set-off or banker's lien or attachment that any Bank or
other holder of a Note may have under applicable law), and, to the best of
my knowledge, the Company is not in default under or in violation of its
charter or By-laws as presently in effect. The Borrowing on the date hereof
of Loans under the Credit Agreement plus Loans under the 364-Day Credit
Agreement in an aggregate principal amount equal to the Total Commitment
under the Credit Agreement and the Total Commitment under the 364-Day
Credit Agreement would not result in a breach of or constitute a default
under any indenture or loan or credit agreement, or any other agreement or
instrument, in each case known to me, to which the Company or any Specified
Subsidiary is a party or by which the Company or any Specified Subsidiary
or its respective properties may be bound or affected.
3. The Credit Agreement and the Notes have been duly executed and
delivered by the Company and each constitutes the legal, valid and binding
obligation of the Company, and each is enforceable against the Company in
accordance with its terms, and, if the Credit Agreement and the Notes had
referred to California law rather than New York law as the governing law,
or if a California court having jurisdiction were to decide that,
notwithstanding the reference to New York law, the Credit Agreement and the
Notes should be construed in accordance with, and governed by, California
law, then the Credit Agreement and the Notes each would be enforceable
against the Company in accordance with its terms.
4. Except as set forth in the Company's annual report on Form 10-K for
the year ended December 31, 1999, its quarterly reports on Form 10-Q for
the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000, or
its current report on Form 8-K dated November 16, 2000, to the Securities
and
[NYCorp;1203895.1]
Exh. H, p.3
Exchange Commission, and except as disclosed in writing to the Banks prior
to the Effective Date, there are, to the best of my knowledge, no actions,
suits, proceedings or investigations pending or threatened against the
Company or any Subsidiary of the Company or any of its respective
properties before any court, governmental agency or regulatory authority
(Federal, state, local or foreign) which are likely (to the extent not
covered by insurance) to have a material adverse effect on the present
consolidated financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole, or materially to impair the Company's
ability to perform its obligations under the Credit Agreement or the Notes.
5. No authorization, consent, approval, license or formal exemption
from, nor any filing, declaration or registration with, any Federal, New
York or California court, governmental agency or regulatory authority
including, without limitation, the Securities and Exchange Commission, or
with any securities exchange located in the United States, is or will be
required in connection with the execution, delivery and performance by the
Company of the Credit Agreement and the Notes, the Borrowings by the
Company in the manner and for the purpose contemplated by the Credit
Agreement, or the issuance by the Company of the Notes in the manner and
for the purpose contemplated by the Credit Agreement, except for
informational reports the failure to file which does not affect the
validity of the Credit Agreement or the Notes, and except as may be
required in the ordinary course to comply with the affirmative covenants in
the Credit Agreement.
6. To the best of my knowledge, neither the Company nor any Related
Person to the Company has incurred any liability to the PBGC under Title IV
of ERISA which has not been fully discharged.
7. The Company is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
8. The Company is not a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
I am a member of the California and New York Bars and for purposes of this
opinion do not hold myself out as an expert on, nor do I express any opinion as
to, the laws of any jurisdiction other than the laws of the State of California,
the laws of the State of New York, the Federal laws of the United States and the
General Corporation Law of the State of Delaware.
[NYCorp;1203895.1]
Exh. H, p.4
In rendering the opinion set forth in numbered paragraph 3 above with
respect to the Credit Agreement, I have assumed, with your approval, the due
authorization, execution and delivery of the Credit Agreement on the part of all
parties to the Credit Agreement, other than the Company, and the legality,
validity, binding effect on, and enforceability against, all such other parties
of the Credit Agreement. That opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, (ii) the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law, (iii) the
effect of general rules of contract law that limit the enforceability of
provisions requiring indemnification of a party for liability for its own action
or inaction to the extent the action or inaction involves gross negligence,
recklessness, willful misconduct or unlawful conduct, and (iv) the possible
challenge to the provisions of the Credit Agreement and the Notes which provide
for a higher rate of interest after a default in payment of principal or
interest under California Civil Code Section 1671, which renders invalid
liquidated damages provisions in contracts if such provisions are found to have
been unreasonable under the circumstances existing at the time the contract was
made.
With your approval, I have relied, as to certain matters of fact, on
information obtained from public officials, officers of the Company and its
Subsidiaries and other sources believed by me to be responsible, and I have
assumed that the signatures on all documents examined by me are genuine, that
all documents submitted to me as originals are authentic and that all documents
submitted to me as copies conform with the originals, which assumptions I have
not independently verified. Also with your approval, I have relied, as to
certain legal matters, on advice of other lawyers employed by the Company who
are more familiar with such matters.
This opinion is rendered only to the Banks, the Syndication Agent, the
Co-Documentation Agents and the Administrative Agent and is solely for their
benefit in connection with the Credit Agreement. This opinion may not be relied
upon by the Banks, the Syndication Agent, the Co-Documentation Agents or the
Administrative Agent for any other purpose or by any other person, firm or
corporation for any purpose without my prior written consent.
Very truly yours,
[NYCorp;1203895.1]
Exh. H, p.5
EXHIBIT I
[LETTERHEAD OF CRAVATH, SWAINE & MOORE, SPECIAL
COUNSEL TO THE AGENTS]
January 4, 2001
OCCIDENTAL PETROLEUM CORPORATION
FIVE-YEAR CREDIT AGREEMENT DATED AS OF JANUARY 4, 2001
Dear Ladies and Gentlemen:
We have acted as special counsel for the Agents under and as defined in the
Five-Year Credit Agreement dated as of January 4, 2001 (the "Credit Agreement"),
among Occidental Petroleum Corporation (the "Company"), the banks parties
thereto (the "Banks"), The Chase Manhattan Bank, as syndication agent (in such
capacity the "Syndication Agent"), Bank of America, N.A. and ABN AMRO Bank,
N.V., as co-documentation agents for the Banks (in such capacity, the
Co-Documentation Agents) and The Bank of Nova Scotia, as administrative agent
for the Banks (in such capacity, the "Administrative Agent"). In that
connection, we have examined originals or copies certified or otherwise
identified to our satisfaction of the Credit Agreement and such other documents
as we have deemed necessary for purposes of this opinion.
Based upon the foregoing, and assuming that the Credit Agreement and the
Notes (as defined in the Credit Agreement) have been duly authorized, executed
and delivered by the Company in conformity with all laws applicable to them, we
are of the opinion that the Credit Agreement and the Notes constitute legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws
affecting creditors' rights generally from time to time in effect and subject to
general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law). With respect to the foregoing
opinion, (i) insofar as provisions contained in the Credit Agreement provide for
indemnification, the enforceability thereof may be limited by public policy
considerations, (ii) the availability of a decree for specific performance or an
injunction is subject to the discretion of the court requested to issue any such
decree or injunction and (iii) we express no opinion as to the effect (if any)
of any law of any jurisdiction (other than the State of New York) in which any
[NYCorp;1203895.1]
Bank is located which limits the rate of interest that such Bank may charge or
collect. We express no opinion as to Section 10.13 of the Credit Agreement
insofar as such Section relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to adjudicate any
controversy related to the Credit Agreement or provides for the waiver of an
inconvenient forum.
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.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon for any other purpose or relied upon by or
furnished to any other person without our prior written consent.
Very truly yours,
To the Banks, the Syndication Agent,
the Co-Documentation Agents,
and the Administrative Agent
referred to above,
c/o The Chase Manhattan Bank, as Syndication Agent
[NYCorp;1203895.1]
Exh. I, p.2
EXHIBIT J
ADDENDUM
Reference is made to the Five-Year Credit Agreement dated as of January 4,
2001 (the "Credit Agreement"), among Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), the banks parties thereto (the "Banks"),
The Chase Manhattan Bank, as syndication agent (the "Syndication Agent"), Bank
of America, N.A. and ABN AMRO Bank, N.V., as co-documentation agents (the "Co-
Documentation Agents"), and The Bank of Nova Scotia, as administrative agent
(the "Administrative Agent"). Capitalized terms used herein and not defined
shall have the meanings assigned to such terms in the Credit Agreement.
This instrument is submitted by the undersigned pursuant to Section 10.16
of the Credit Agreement and is an Addendum as defined in the Credit Agreement.
1. The undersigned hereby agrees to become a party to the Credit Agreement
with the Revolving Credit Commitment set forth below. The undersigned is [not]
listed on Schedule I to the Credit Agreement.
Revolving Credit Commitment: $
----------
*2. The following information with respect to the undersigned is supplied
for purposes of Schedule II to the Credit Agreement:
Name of Bank:
--------------------
Address:
--------------------
--------------------
Attention:
--------------------
Tel. No.
--------------------
Telecopier No.
--------------------
3. This instrument may be executed by the undersigned and accepted by the
Company on separate counterparts, each of which counterparts shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.
- --------
*/ If Schedule II to the Credit Agreement already contains this
information, this item need not be completed.
[NYCorp;1203895.1]
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its officer thereunto duly authorized as of the date set forth
below.
-------------------------------------
Date: [__________], 20___ [Name of Bank]
By
-----------------------------------
Name:
Title:
Accepted:
OCCIDENTAL PETROLEUM CORPORATION
By
-------------------------------
Name:
Title:
Date: [__________], 20___
[NYCorp;1203895.1]
Exh. J, p.2
EXHIBIT K
ADMINISTRATIVE QUESTIONNAIRE
OCCIDENTAL PETROLEUM CORPORATION
$1,000,000,000 FIVE-YEAR CREDIT AGREEMENT
NOTE TO BANKS: PLEASE FORWARD THIS COMPLETED FORM
AS SOON AS POSSIBLE TO THE LOAN
ADMINISTRATION DEPARTMENT:
The Bank of Nova Scotia,
600 Peachtree N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attn:
PLEASE TYPE ALL INFORMATION
SYNDICATION AGENT: The Chase Manhattan Bank
600 Travis Street
20th Floor
Houston, TX 77002
Attention: Ms. Beth Lawrence
TELECOPIER: (713) 216-8870
CONTACTS: Ms. Beth Lawrence - (713) 216-5968
Managing Director
Ms. June Brand - (713) 216-4327
ADMINISTRATIVE AGENT: The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
TELECOPIER: (415) 397-0791
CONTACTS: Maarten Van Otterloo - (415) 986-1100
Vice President - Corporate Banking
Sonia McKoy - (404) 877-1553
Loan Operations Officer
[NYCorp;1203895.1]
Exh. K, p.1
Full Legal Name of your Bank:
--------------------------------------------
Exact name of signing officer:
--------------------------------------------
Title of signing officer:
--------------------------------------------
Business address for delivery of
execution copies of credit
agreement (Please do not
use P.O. Box address; hand
deliveries cannot be made):
--------------------------------------------
Signing officer's phone no.:
--------------------------------------------
Alternate officer contract:
--------------------------------------------
Alternate officer's phone no:
--------------------------------------------
Hard-copy documents and notices should be sent to the following account officer
designated by your bank:
Officer's name:
--------------------------------------------
Title:
--------------------------------------------
Street address
(No P.O. Boxes please):
--------------------------------------------
City, State, Zip:
--------------------------------------------
[NYCorp;1203895.1]
Exh. K, p.2
GENERAL OPERATIONAL INFORMATION
OPERATING CONTACTS NAME PHONE NO.
Loan Department:
--------------------------------------------------------
Loan Administrator:
--------------------------------------------------------
Other:
--------------------------------------------------------
MOVEMENT OF FUNDS: Wire Fed Funds to:
TO ADMINISTRATIVE AGENT: The Bank of Nova Scotia
(ABA #02600-2532)
One Liberty Plaza
New York, New York
10006
For Credit A/C #6101-35
The Bank of Nova Scotia
San Francisco Agency
Reference: Occidental
Petroleum Corporation
TO YOU: Wire Fed Funds to:
------------------------
------------------------
------------------------
Attention:
--------------
Reference:
--------------
Publicity: How would you like your bank's name to appear in any tombstone
advertisements?
------------------------------------------------------
Tax Identification Number:
-----------------------------------------------------
[NYCorp;1203895.1]
Exh. K, p.3
PRIMARY CONTACT INFORMATION
We will send all telecopies to a single number (the Primary or Alternate Contact
numbers listed below) at the banking location you designate. These contacts are
those you designate for critical telecopies (rates, loan amounts, paydowns,
etc.).
1. Your bank's primary contacts for telecopies:
PRIMARY TELECOPIER NO.:
------------------------------------------------
ALTERNATE TELECOPIER NO.:
-------------------------------------------
2. Your bank's primary contacts:
Name Phone No. Department
(1)
- --------------------------------------------------------------------------------
(2)
- --------------------------------------------------------------------------------
(If at any time any of the above information changes, please advise the
Administrative Agent by written notice).
[NYCorp;1203895.1]
Exh. K, p.4
PLEASE COMPLETE THE FOLLOWING INFORMATION
FOR COMPETITIVE AUCTIONS ONLY
ADMINISTRATIVE AGENT: The Bank of Nova Scotia
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
TELECOPIER:
CONTACTS:
PRIMARY CONTACT
COMPETITIVE AUCTIONS
Bank Name:
--------------------------------------------------------
Address:
--------------------------------------------------------
Primary Contact:
--------------------------------------------------------
Title:
--------------------------------------------------------
Department:
--------------------------------------------------------
Telephone Number:
--------------------------------------------------------
Telecopier Number:
--------------------------------------------------------
ALTERNATE CONTACT
COMPETITIVE AUCTIONS
Alternate Contact:
--------------------------------------------------------
Title:
--------------------------------------------------------
Department:
--------------------------------------------------------
Telephone Number:
--------------------------------------------------------
Telecopier Number:
--------------------------------------------------------
[NYCorp;1203895.1]
Exh. K, p.5