Exhibit 4(a)
$1,353,750,000
FIVE-YEAR CREDIT AGREEMENT
dated as of
November 30, 2000
among
USX Corporation
The Co-Agents and Other Lenders Party Hereto
Bank of America, N.A.,
as Syndication Agent
Citibank, N.A.,
The Bank of Nova Scotia and
Commerzbank AG,
as Documentation Agents
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
_____________________________________________________
J.P. Morgan Securities Inc.,
Chase Securities Inc.
and
Banc of America Securities LLC,
Joint Bookrunners and Co-Lead Arrangers
Article 1
Definitions
Section 1.01. Definitions................................................................ 1
Section 1.02. Accounting Terms And Determinations........................................ 10
Section 1.03. Classes And Types Of Borrowings............................................ 10
Article 2
The Credits
Section 2.01. Commitments To Lend........................................................ 11
Section 2.02. Notice Of Committed Borrowing.............................................. 11
Section 2.03. Money Market Borrowings.................................................... 12
Section 2.04. Notice To Lenders; Funding Of Loans........................................ 15
Section 2.05. Notes...................................................................... 16
Section 2.06. Maturity Of Loans.......................................................... 17
Section 2.07. Interest Rates............................................................. 17
Section 2.08. Method of Electing Interest Rates.......................................... 19
Section 2.09. Fees....................................................................... 20
Section 2.10. Termination Or Reduction of Commitments.................................... 21
Section 2.11. Optional Prepayments....................................................... 21
Section 2.12. General Provisions as to Payments.......................................... 21
Section 2.13. Funding Losses............................................................. 22
Section 2.14. Computation of Interest and Fees........................................... 23
Section 2.15. Letters of Credit.......................................................... 23
Section 2.16. Stop Issuance Notice....................................................... 27
Section 2.17. Change of Control.......................................................... 27
Section 2.18. Optional Increase in Commitments........................................... 29
Article 3
Conditions
Section 3.01. Effectiveness.............................................................. 30
Section 3.02. Borrowings and Issuances of Letters of Credit.............................. 31
Section 3.03. Existing Credit Agreement.................................................. 31
Article 4
Representations And Warranties
Section 4.01. Corporate Existence and Power.............................................. 31
Section 4.02. Corporate and Governmental Authorization; Contravention.................... 32
Section 4.03. Binding Effect............................................................. 32
Section 4.04. Financial Information...................................................... 32
Section 4.05. Litigation................................................................. 32
Section 4.06. Environmental Matters...................................................... 33
Section 4.07. Taxes...................................................................... 33
Section 4.08. Compliance with Laws....................................................... 33
Section 4.09. Marathon................................................................... 33
Article 5
Covenants
Section 5.01. Information................................................................ 34
Section 5.02. Consolidations and Mergers................................................. 35
Section 5.03. Use of Proceeds............................................................ 36
Section 5.04. Negative Pledge............................................................ 36
Section 5.05. Sale and Leaseback......................................................... 38
Article 6
Defaults
Section 6.01. Events of Default.......................................................... 39
Section 6.02. Notice of Default.......................................................... 41
Section 6.03. Cash Cover................................................................. 41
Article 7
The Agents
Section 7.01. Appointment and Authorization.............................................. 41
Section 7.02. Agents and Affiliates...................................................... 41
Section 7.03. Action by Administrative Agent............................................. 41
Section 7.04. Consultation with Experts.................................................. 42
Section 7.05. Liability of Agents........................................................ 42
Section 7.06. Indemnification............................................................ 42
Section 7.07. Credit Decision............................................................ 43
Section 7.08. Successor Administrative Agent............................................. 43
Section 7.09. Administrative Agent's Fee................................................. 43
Section 7.10. Other Agents............................................................... 43
Article 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair................... 43
Section 8.02. Illegality................................................................. 44
Section 8.03. Increased Cost and Reduced Return.......................................... 45
Section 8.04. Base Rate Loans Substituted for Affected Fixed Rate Loans.................. 48
Section 8.05. Substitution of Lender..................................................... 48
Section 8.06. Notice Mandatory........................................................... 48
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Article 9
Miscellaneous
Section 9.01. Notices.................................................................... 49
Section 9.02. No Waivers................................................................. 49
Section 9.03. Expenses; Indemnification.................................................. 49
Section 9.04. Sharing.................................................................... 50
Section 9.05. Amendments and Waivers..................................................... 50
Section 9.06. Successors and Assigns..................................................... 51
Section 9.07. Designated Lenders......................................................... 53
Section 9.08. No Reliance on Margin Stock................................................ 54
Section 9.09. Governing Law.............................................................. 54
Section 9.10. Counterparts; Integration.................................................. 54
Section 9.11. WAIVER OF JURY TRIAL....................................................... 55
COMMITMENT SCHEDULE
PRICING SCHEDULE
EXHIBIT A - NOTE
EXHIBIT B - FORM OF MONEY MARKET QUOTE REQUEST
EXHIBIT C - FORM OF INVITATION FOR MONEY MARKET
QUOTES
EXHIBIT D - FORM OF MONEY MARKET QUOTE
EXHIBIT E - OPINION OF COUNSEL FOR THE BORROWER
EXHIBIT F - OPINION OF DAVIS POLK & WARDWELL, SPECIAL
COUNSEL FOR THE ADMINISTRATIVE AGENT
EXHIBIT G - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H - DESIGNATION AGREEMENT
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AGREEMENT dated as of November 30, 2000 among USX CORPORATION, the CO-
AGENTS and other LENDERS party hereto, BANK OF AMERICA, N.A., as Syndication
Agent, CITIBANK, N.A., THE BANK OF NOVA SCOTIA and COMMERZBANK AG as
Documentation Agents and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes setting
forth Money Market Absolute Rates pursuant to Section 2.03.
"Administrative Agent" means Morgan Guaranty Trust Company of New York, in
its capacity as administrative agent for the Lenders hereunder, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
completed by such Lender and returned to the Administrative Agent (with a copy
to the Borrower).
"Agents" means the Administrative Agent, the Documentation Agents and the
Syndication Agent.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Approved Fund" means any Fund that is administered or managed by (i) a
Lender, (ii) an affiliate of a Lender or (iii) an entity or an affiliate of an
entity that administers or manages a Lender.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Committed Loan that bears interest at the Base
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the last sentence of Section 2.08(a) or Article 8.
"Borrower" means USX Corporation, a Delaware corporation, and its
successors.
"Borrower's 1999 Form 10-K" means the Borrower's annual report on Form 10-K
for 1999, as filed with the SEC pursuant to the Exchange Act.
"Borrowing" has the meaning specified in Section 1.03.
"Change of Control" has the meaning set forth in Section 2.17(a).
"Class" refers to the determination whether a Loan is a Committed Loan or a
Money Market Loan.
"Closing Date" means the date on or after the Effective Date on which all
of the conditions specified in Section 3.01 shall have been satisfied.
"Co-Agent" means each Lender designated as a Co-Agent on the signature
pages hereof.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Commitment" means (i) with respect to each Lender listed on the Commitment
Schedule, the amount set forth opposite such Lender's name on the Commitment
Schedule, (ii) with respect to any financial institution which becomes a Lender
pursuant to Section 2.18, the amount of the Commitment thereby assumed by it and
(iii) with respect to any assignee which becomes a Lender pursuant to Section
9.06(b), the amount of the transferor Lender's Commitment assigned to it
pursuant to Section 9.06(b), in each case as such amount may be changed from
time to time pursuant to Section 2.10, 2.18 or 9.06(b); provided that, if the
context so requires, the term "Commitment" means the obligation of a Lender to
extend credit up to such amount to the Borrower hereunder.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Committed Loan" means a loan made by a Lender pursuant to Section 2.01;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Credit Exposure" means, with respect to any Lender at any time, (i) the
amount of its Commitment (whether used or unused) at such time or (ii) if the
Commitments have terminated in their entirety, the sum of the aggregate
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outstanding principal amount of its Loans at such time plus the aggregate amount
of its Letter of Credit Liabilities at such time.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designated Lender" means, with respect to any Designating Lender, an
Approved Fund designated by it pursuant to Section 9.07(a) as a Designated
Lender for purposes of this Agreement.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 9.07(a).
"Documentation Agent" means each of Citibank, N.A., The Bank of Nova Scotia
and Commerzbank AG, in its capacity as a documentation agent in connection with
the credit facility provided under this Agreement.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Domestic Lending Office" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Effective Date" means the date the Commitments become effective in
accordance with Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a natural Person)
approved by the Administrative Agent, the Issuing Banks and, unless an Event of
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed). If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment thresholds specified
in paragraph (b)(i) of Section 9.06), the Borrower shall be deemed to have given
its consent five Domestic Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) and receipt
thereof has been acknowledged by the Borrower, unless such consent is expressly
refused by the Borrower prior to such fifth Domestic Business Day.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
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"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan that bears interest at a Euro-
Dollar Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election.
"Euro-Dollar Margin" has the meaning specified in the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to Section
2.07(b) on the basis of a London Interbank Offered Rate.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the $2,325,000,000 Credit Agreement dated
as of August 18, 1994 among the Borrower, the co-agents and other banks parties
thereto, The Chase Manhattan Bank (successor to Chemical Bank), as managing
agent, and Morgan Guaranty Trust Company of New York, as agent, as amended to
the Effective Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day
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shall be the average rate quoted to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans (excluding
Money Market LIBOR Loans bearing interest at the Prime Rate pursuant to Section
8.01) or any combination of the foregoing.
"Fund" means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Group of Loans" means, at any time, a group of Loans consisting of (i) all
Committed Loans which are Base Rate Loans at such time or (ii) all Euro-Dollar
Loans having the same Interest Period at such time; provided that, if a
Committed Loan of any particular Lender is converted to or made as a Base Rate
Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"Indemnitee" has the meaning specified in Section 9.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(2) with respect to each Money Market LIBOR Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing and ending
such whole number of months thereafter as the Borrower may elect in accordance
with Section 2.03(b); provided that:
5
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date; and
(3) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 15 days)
as the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day;
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Issuing Bank" means The Chase Manhattan Bank and any other Lender that may
agree to issue letters of credit hereunder pursuant to an instrument in form
satisfactory to the Administration Agent, in each case as issuer of a letter of
credit hereunder.
"Lender" means (i) each bank or other institution listed on the Commitment
Schedule, (ii) each financial institution which becomes a Lender pursuant to
Section 2.18, (iii) each assignee which becomes a Lender pursuant to Section
9.06(b) and (iv) their respective successors.
"Lender Parties" means the Lenders, the Issuing Banks and the Agents.
"Letter of Credit" means a letter of credit to be issued hereunder by an
Issuing Bank.
"Letter of Credit Liabilities" means, for any Lender and at any time, such
Lender's ratable participation in the sum of (x) the aggregate amount then owing
by the Borrower in respect of amounts drawn under Letters of Credit and (y) the
aggregate amount then available for drawing under all Letters of Credit.
6
"Letter of Credit Termination Date" means the tenth Domestic Business Day
prior to the Termination Date.
"LIBOR Auction" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.03.
"Loan" means a Committed Loan or a Money Market Loan and "Loans" means
Committed Loans or Money Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning specified in Section
2.07(b).
"Material Plan" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Money Market Absolute Rate" has the meaning specified in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Lender shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including any such loan bearing interest at the
Prime Rate pursuant to Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning specified in Section 2.03(d)(ii)(C).
"Money Market Quote" means an offer by a Lender to make a Money Market Loan
in accordance with Section 2.03.
"Moody's" means Moody's Investors Service, Inc.
7
"Mortgage" has the meaning set forth in Section 5.04.
"Multiemployer Plan" means, at any time, an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the Borrower's obligation to repay the Loans,
and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"Notice of Interest Rate Election" has the meaning specified in Section
2.08(a).
"Notice of Issuance" has the meaning set forth in Section 2.15(b).
"Outstanding Committed Amount" means, with respect to any Lender at any
time, the sum of the aggregate outstanding principal amount of its Committed
Loans plus the aggregate amount of its Letter of Credit Liabilities at such
time, determined at such time after giving effect to any prior assignments by or
to such Lender pursuant to Section 9.06(b).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning specified in Section 9.06(d).
"Payment Date" has the meaning specified in Section 2.15(c).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to any Lender at any time, the percentage
which the amount of its Commitment at such time represents of the aggregate
amount of all the Commitments at such time. At any time after the Commitments
shall have terminated, the term "Percentage" shall refer to a Lender's
Percentage immediately before such termination, adjusted to reflect any
subsequent assignments pursuant to Section 9.06(b).
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
8
"Plan" means, at any time, an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Quarterly Payment Dates" means each March 31, June 30, September 30, and
December 31.
"Reference Banks" means the principal London offices (or any successor
offices) of The Bank of Nova Scotia, PNC Bank, National Association and Morgan
Guaranty Trust Company of New York.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Obligation" has the meaning specified in Section 2.15(c).
"Related Agreement" means the 364-Day Credit Agreement of even date
herewith among the same initial parties as this Agreement, as amended, extended,
renewed or replaced from time to time.
"Required Lenders" means, at any time, Lenders having at least 67% in
aggregate amount of the Credit Exposures at such time.
"Revolving Credit Period" means the period from and including the Effective
Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Stop Issuance Notice" has the meaning specified in Section 2.16.
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
9
functions are at the time directly or indirectly owned by such Person. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Syndication Agent" means Bank of America, N.A., in its capacity as
syndication agent in connection with the credit facility provided under this
Agreement.
"Termination Date" means November 30, 2005 or, if such day is not a Euro-
Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Total Outstanding Amount" means, at any time, the sum of (i) the aggregate
outstanding principal amount of the Loans (including both Committed Loans and
Money Market Loans) determined at such time after giving effect, if one or more
Loans are being made at such time, to any substantially concurrent application
of the proceeds thereof to repay one or more other Loans plus (ii) the aggregate
amount of the Letter of Credit Liabilities of all Lenders at such time.
"Type" refers to the determination whether a Committed Loan is a Base Rate
Loan or a Euro-Dollar Loan or whether a Money Market Loan is a Money Market
Absolute Rate Loan or a Money Market LIBOR Loan.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Voting Power" has the meaning set forth in Section 2.17(a).
"Voting Stock" has the meaning set forth in Section 2.17(a).
Section 1.02. Accounting Terms And Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower delivered to the Administrative Agent.
Section 1.03. Classes And Types Of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of the same Type and Class of one or more
Lenders to be made to the Borrower pursuant to Article 2 on a single date and
for
10
a single initial Interest Period. Borrowings are classified for purposes of this
Agreement by reference to either or both the Class and Type of Loans comprising
such Borrowing (e.g., a Euro-Dollar Borrowing is a Borrowing comprised of Euro-
Dollar Loans while a Committed Borrowing is a Borrowing comprised of Committed
Loans).
ARTICLE 2
The Credits
Section 2.01. Commitments To Lend. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time during the Revolving Credit Period;
provided that, immediately after each such loan is made:
(i) such Lender's Outstanding Committed Amount shall not exceed
its Commitment; and
(ii) the Total Outstanding Amount shall not exceed the aggregate
amount of the Commitments.
Each Borrowing under this Section shall be in an aggregate principal amount of
$50,000,000 or any larger integral multiple of $10,000,000 (except that any such
Borrowing may be in the aggregate amount available within the limitations in the
foregoing proviso) and shall be made from the several Lenders ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, prepay Loans to the extent permitted by
Section 2.11 and reborrow at any time during the Revolving Credit Period under
this Section.
Section 2.02. Notice Of Committed Borrowing. The Borrower shall give the
Administrative Agent notice (a "Notice of Committed Borrowing") not later than
10:30 A.M. (New York City time) on (y) the date of each Base Rate Borrowing and
(z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing;
(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate; and
11
(d) in the case of a Euro-Dollar Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Section 2.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 2.01, the Borrower may, as
set forth in this Section, request the Lenders to make offers to make Money
Market Loans to the Borrower from time to time during the Revolving Credit
Period. The Lenders may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request offers
to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received not later
than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business Day
before the date of Borrowing proposed therein, in the case of a LIBOR Auction or
(y) the Domestic Business Day immediately before the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Administrative Agent shall have mutually
agreed and shall have notified to the Lenders not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$50,000,000 or a larger integral multiple of $10,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly after receiving a Money
Market Quote Request, the Administrative Agent shall send to each of the Lenders
which shall have notified the Administrative Agent of its desire to
12
receive the same an Invitation for Money Market Quotes substantially in the form
of Exhibit C hereto, which shall constitute an invitation by the Borrower to
each Lender to submit Money Market Quotes offering to make the Money Market
Loans to which such Money Market Quote Request relates in accordance with this
Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Lender to
which an Invitation for Money Market Quotes is sent may submit a Money Market
Quote containing an offer or offers to make Money Market Loans in response to
any Invitation for Money Market Quotes. Each Money Market Quote must comply with
the requirements of this Section 2.03(d) and must be submitted to the
Administrative Agent by telex or facsimile at its address specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (New York City time) on
the fourth Euro-Dollar Business Day before the proposed date of Borrowing, in
the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders not
later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective);
provided that Money Market Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour before the deadline for the other Lenders,
in the case of a LIBOR Auction or (y) 15 minutes before the deadline for the
other Lenders, in the case of an Absolute Rate Auction. Subject to Articles 3
and 6, any Money Market Quote so made shall not be revocable except with the
written consent of the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be substantially in the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing;
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Lender, (x) must be
$5,000,000 or a larger integral multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate limitation as to
the principal amount of Money Market Loans for which offers being made
by such quoting Lender may be accepted;
(C) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the
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"Money Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of 1%)
to be added to or subtracted from such base rate;
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan;
and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection
2.03(d)(ii) above;
(B) contains qualifying, conditional or similar language (except
as contemplated by subsection (d)(ii)(B)(z);
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes (except as
contemplated by subsection (d)(ii)(B)(z); or
(D) arrives after the time set forth in subsection 2.03(d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify the
Borrower of the terms of (i) any Money Market Quote submitted by a Lender that
is in accordance with Section 2.03(d) and (ii) any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
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(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New York
City time) on (x) the third Euro-Dollar Business Day before the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and
shall have notified to the Lenders not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to Section 2.03(e). In the case of acceptance, such notice (a "Notice
of Money Market Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$50,000,000 or a larger integral multiple of $10,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be;
(iv) the Borrower may not accept any offer that is described in
subsection 2.03(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement; and
(v) immediately after such Money Market Borrowing is made, the
Total Outstanding Amount shall not exceed the aggregate amount of the
Commitments.
(g) Allocation by Administrative Agent. If offers are made by two or more
Lenders with the same Money Market Margins or Money Market Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in integral multiples of $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amounts of
such offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
Section 2.04. Notice To Lenders; Funding Of Loans. (a) Promptly after
receiving a Notice of Borrowing, the Administrative Agent shall notify each
Lender of the contents thereof and of such Lender's share (if any) of such
15
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Lender participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant to.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Lender before the date of any Borrowing (or, in the case of a Base Rate
Borrowing, prior to 12:00 Noon (New York City time) on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available to the Administrative Agent on the
date of such Borrowing in accordance with Section 2.04(b) and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such share available to the Administrative Agent, such Lender
and, if such Lender shall not have done so within five Domestic Business Days of
demand therefor by the Administrative Agent, then the Borrower, each agrees to
pay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) if such amount is repaid by the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable to such Borrowing pursuant to Section 2.07 and (ii) if such amount is
repaid by such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, the Borrower shall not be
required to repay such amount and the amount so repaid by such Lender shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement. Nothing in this subsection (c) shall relieve any Lender of its
obligation to make Loans in accordance with the terms and conditions of this
Agreement or relieve any Lender from responsibility for default by it in such
obligation.
Section 2.05. Notes. (a) The Loans of each Lender shall be evidenced by a
single Note payable to the order of such Lender for the account of its
Applicable Lending Office; provided that each Lender may, by notice to the
Borrower and the Agent, request that its Loans of a particular Class or Type be
evidenced by a separate Note. Each such separate Note shall be in substantially
the form of Exhibit A hereto with appropriate modifications to reflect the fact
that it evidences solely Loans of the relevant Class or Type. Each reference in
this
16
Agreement to the "Note" of such Lender shall be deemed to refer to and include
any or all of such Notes, as the context may require.
(b) Upon receipt of each Lender's Note pursuant to Section 3.01, the Agent
shall forward such Note to such Lender. Each Lender shall record the date,
amount, Class, Type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and may,
if such Lender so elects in connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding; provided that the inaccuracy of, or the failure of any Lender to
make, any such recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Notes. Each Lender is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
Section 2.06. Maturity Of Loans. (a) Each Committed Loan shall mature, and
the principal amount thereof shall be due and payable (together with interest
accrued thereon), on the Termination Date.
(b) Each Money Market Loan shall mature, and the principal amount thereof
shall be due and payable (together with interest accrued thereon), on the last
day of the Interest Period applicable thereto.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Payment Date and on the Termination Date and, with respect to the
principal amount of any Base Rate Loan that is prepaid or converted to a Euro-
Dollar Loan, on the date of such prepayment or conversion.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof and, with respect to the principal amount of
any Euro-Dollar Loan that is prepaid or converted to a Base Rate Loan, on the
date of such prepayment or conversion.
The "London Interbank Offered Rate" applicable to any Interest Period means
(a) the offered rate for dollar deposits, for a period approximately equal to
such Interest Period and, if the amount is so quoted, in an amount approximately
equal to the average principal amount of the applicable Loans, quoted on the
second Euro-dollar Business Day prior to the first day of such Interest Period,
as
17
such rate appears on the display designated as page "3750" on the Telerate
service (or such other page as may replace page "3750" on the Telerate service
or such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits) ("Telerate Page
3750") as of 11:00 A.M. (London time) on such date, (b) if, as of 11:00A.M.
(London time) on any such date such rate does not appear on the Telerate Page
3750, the arithmetic mean (adjusted, if necessary, to the nearest 1/16th of 1%),
of the offered rates for dollar deposits, for a period approximately equal to
such Interest Period quoted on the second Euro-Dollar Business Day prior to the
first day of such Interest Period, as such rates appear on the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the "LIBO" page on that service for the purpose of
displaying London interbank offered rates of major banks) ("Reuters Screen LIBO
Page") as of 11:00 A.M. (London time) on such date, or (c) if neither of the
above rates is available (and in the case of clause (b), if on any such date at
least two such rates do not appear on the Reuters Screen LIBO page), the average
(adjusted, if necessary, to the next higher 1/16th of 1%) of the respective
rates per annum at which deposits in dollars are offered to each of the
Reference Banks in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) Subject to Section 8.01, each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(b) as if the related Money Market LIBOR Borrowing were a Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Lender making
such Loan in accordance with. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the Money Market Absolute Rate
quoted by the Lender making such Loan in accordance with. Such interest shall
be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
(d) Any overdue principal of and interest on any Loan shall bear interest,
payable on demand, for each day from and including the date payment thereof was
due to but excluding the date of actual payment, at a rate per annum equal to
the sum of 1% plus the Base Rate for such day.
(e) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall promptly notify the
Borrower and the participating Lenders of each rate of interest so
18
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
Section 2.08. Method of Electing Interest Rates. (a) The Loans included in
each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to Section 2.08(d)
and the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans as of any Domestic Business Day,
or may elect to continue such Loans as Euro-Dollar Loans, as of the end of
any Interest Period applicable thereto, for an additional Interest Period,
subject to Section 2.13 if any such conversion is effective on any day
other than the last day of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:30 A.M. (New York
City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $50,000,000 (unless such portion is comprised of Base
Rate Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to Base Rate Loans at the end of
such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
19
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of Section 2.08(a);
(iii) if the Loans comprising such Group are to be converted, the new
Type of Loans and, if the Loans resulting from such conversion are to be
Euro-Dollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.08(a), the Administrative Agent shall notify each
Lender of the contents thereof and such notice shall not thereafter be revocable
by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Committed
Loans to, or continue any Committed Loans for an additional Interest Period as,
Euro-Dollar Loans if (i) the aggregate principal amount of any Group of Euro-
Dollar Loans created or continued as a result of such election would be less
than $50,000,000 or (ii) a Default shall have occurred and be continuing when
the Borrower delivers notice of such election to the Administrative Agent.
(e) If any Committed Loan is converted to a different Type of Loan, the
Borrower shall pay, on the date of such conversion, the interest accrued to such
date on the principal amount being converted.
Section 2.09. Fees. (a) The Borrower shall pay to the Administrative
Agent, for the account of the Lenders ratably in proportion to their Credit
Exposures, a facility fee calculated for each day at the Facility Fee Rate for
such day (determined in accordance with the Pricing Schedule) on the aggregate
amount of the Credit Exposures on such day. Such facility fee shall accrue for
each day from and including the Effective Date to but excluding the day on which
the Credit Exposures are reduced to zero.
(b) The Borrower shall pay to the Administrative Agent (i) for the account
of the Lenders ratably a letter of credit fee accruing daily on the aggregate
undrawn amount of all outstanding Letters of Credit at a rate per annum equal to
the Euro-Dollar Margin for such day and (ii) for the account of each
20
Issuing Bank a letter of credit fronting fee accruing daily on the aggregate
amount then available for drawing under all Letters of Credit issued by such
Issuing Bank at a rate per annum equal to 1/8th of 1% or such other rate per
annum as may be mutually agreed between the Borrower and such Issuing Bank from
time to time.
(c) Fees accrued for the account of the Lenders under this Section shall
be payable quarterly in arrears on each Quarterly Payment Date and on the day on
which the Commitments terminate in their entirety (and, if later, on the day on
which the Credit Exposures are reduced to zero)
Section 2.10. Termination Or Reduction of Commitments. (a) The Borrower
may, upon at least three Domestic Business Days' notice to the Administrative
Agent, (i) terminate the Commitments at any time, if no Loans or Letter of
Credit Liabilities are outstanding at such time, or (ii) ratably reduce from
time to time by an aggregate amount of $25,000,000 or any larger integral
multiple thereof, the aggregate amount of the Commitments in excess of the Total
Outstanding Amount. Promptly after receiving a notice pursuant to this
subsection, the Administrative Agent shall notify each Lender of the contents
thereof.
(b) Unless previously terminated, the Commitments shall terminate in their
entirety on the Termination Date.
Section 2.11. Optional Prepayments. (a) Subject in the case of Fixed Rate
Loans to Section 2.13, the Borrower may (i) upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any Group of Base Rate Loans
(or any Money Market Borrowing bearing interest at the Prime Rate pursuant to
Section 8.01) or (ii) upon at least three Euro-Dollar Business Days' notice to
the Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$50,000,000 or any larger integral multiple of $10,000,000, by paying the
principal amount to be prepaid together with interest accrued thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Lenders included in such Group of Loans (or
such Money Market Borrowing).
(b) Except as provided in Section 2.11(a) or 2.17, the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan
before the maturity thereof.
(c) Promptly after receiving a notice of prepayment pursuant to this
Section, the Administrative Agent shall notify each Lender of the contents
thereof and of such Lender's ratable share (if any) of such prepayment, and such
notice shall not thereafter be revocable by the Borrower.
Section 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans, of Letter of
Credit
21
Liabilities and interest thereon and of fees hereunder not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its address specified
in or pursuant to Section 9.01 and without reduction by reason of any set-off or
counterclaim. The Administrative Agent will promptly distribute to each Lender
its ratable share of each such payment received by the Administrative Agent for
the account of the Lenders. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of principal
of, or interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Borrower notifies the Administrative Agent before the date
on which any payment is due to the Lenders hereunder that the Borrower will not
make such payment in full, the Administrative Agent may assume that the Borrower
has made such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance on such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that such payment shall not have been so
made by the Borrower, each Lender shall repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a different type of Loan (whether such payment or conversion is
pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last day
of an Interest Period applicable thereto, or if the Borrower fails to borrow,
prepay, convert or continue any Fixed Rate Loan after notice has been given to
any Lender in accordance with Section 2.04(a), 2.08(c) or 2.11(c), the Borrower
shall reimburse each Lender within 15 days after demand for any resulting loss
or expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after such payment or conversion or failure to borrow,
prepay, convert or
22
continue; provided that such Lender shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
Section 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.15. Letters of Credit.
(a) Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof, and so long as no Stop Issuance Notice is in effect, each
Issuing Bank agrees to issue Letters of Credit from time to time before the
Letter of Credit Termination Date upon the request of the Borrower; provided
that, immediately after each Letter of Credit is issued (i) the Total
Outstanding Amount shall not exceed the aggregate amount of the Commitments and
(ii) the aggregate amount of the Letter of Credit Liabilities shall not exceed
$100,000,000. Upon the date of issuance by an Issuing Bank of a Letter of
Credit, the Issuing Bank shall be deemed, without further action by any party
hereto, to have sold to each Lender, and each Lender shall be deemed, without
further action by any party hereto, to have purchased from the Issuing Bank, a
participation in such Letter of Credit and the related Letter of Credit
Liabilities in the proportion its respective Commitment bears to the aggregate
Commitments.
(b) Method for Issuance; Terms; Extensions.
(i) The Borrower shall give the Issuing Bank notice at least three
Domestic Business Days (or such shorter notice as may be acceptable to the
Issuing Bank in its discretion) prior to the requested issuance of a Letter
of Credit (or, in the case of renewal or extension, prior to the Issuing
Bank's deadline for notice of nonextension) specifying the date such Letter
of Credit is to be issued, and describing the terms of such Letter of
Credit and the nature of the transactions to be supported thereby (such
notice, including any such notice given in connection with the extension of
a Letter of Credit, a "Notice of Issuance"). Upon receipt of a Notice of
Issuance, the Issuing Bank shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Lender of the
contents thereof and of the amount of such Lender's participation in such
Letter of Credit.
(ii) The obligation of the Issuing Bank to issue each Letter of
Credit shall, in addition to the conditions precedent set forth in Section
3.02, be subject to the conditions precedent that such Letter of Credit
shall be in such form and contain such terms as shall be reasonably
satisfactory
23
to the Issuing Bank and that the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letter of Credit as
the Issuing Bank shall have reasonably requested. The Borrower shall also
pay to the Issuing Bank for its own account issuance, drawing, amendment
and extension charges in the amounts and at the times as agreed between the
Borrower and the Issuing Bank.
(iii) The extension or renewal of any Letter of Credit shall be deemed
to be an issuance of such Letter of Credit, and if any Letter of Credit
contains a provision pursuant to which it is deemed to be extended unless
notice of termination is given by the Issuing Bank, the Issuing Bank shall
timely give such notice of termination unless it has theretofore timely
received a Notice of Issuance and the other conditions to issuance of a
Letter of Credit have also theretofore been met with respect to such
extension. No Letter of Credit shall have a term of more than eighteen
months; provided that a Letter of Credit may contain a provision pursuant
to which it is deemed to be extended on an annual basis unless notice of
termination is given by the Issuing Bank; provided further that no Letter
of Credit shall have a term extending or be so extendible beyond the Letter
of Credit Termination Date.
(c) Payments; Reimbursement Obligations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the Issuing Bank shall
notify the Administrative Agent and the Administrative Agent shall promptly
notify the Borrower and each other Lender as to the amount to be paid as a
result of such demand or drawing and the date such payment is to be made by
the Issuing Bank (the "Payment Date"). The Borrower shall be irrevocably
and unconditionally obligated to reimburse the Issuing Bank for any amounts
paid by the Issuing Bank upon any drawing under any Letter of Credit,
without presentment, demand, protest or other formalities of any kind. Such
reimbursement shall be due on the Payment Date; provided that no such
payment shall be due from the Borrower any earlier than the date of receipt
by it of notice of its obligation to make such payment (or, if such notice
is received by the Borrower after 1:00 P.M. (New York City time) on any
date, on the next succeeding Domestic Business Day); and provided further
that if and to the extent any such reimbursement is not made by the
Borrower in accordance with this clause (i) or clause (ii) on the Payment
Date, then (irrespective of when notice thereof is received by the
Borrower), such reimbursement obligation shall bear interest, payable on
demand, for each day from and including the Payment Date to but not
including the date such reimbursement obligation is paid in full at a rate
per annum equal to the rate applicable to Base Rate Loans for such day.
24
(ii) All such amounts paid by the Issuing Bank and remaining unpaid
by the Borrower (a "Reimbursement Obligation") shall, if and to the extent
that the amount of such Reimbursement Obligation would be permitted as a
Borrowing pursuant to Section 3.02, and unless the Borrower otherwise
instructs the Administrative Agent by not less than one Domestic Business
Day's prior notice, convert automatically to Base Rate Loans on the date
such Reimbursement Obligation arises. The Administrative Agent shall, on
behalf of the Borrower (which hereby irrevocably directs the Administrative
Agent so to act on its behalf), give notice no later than 10:30 A.M. (New
York City time) on such date requesting each Lender to make, and each
Lender hereby agrees to make, a Base Rate Loan, in an amount equal to such
Lender's Percentage of the Reimbursement Obligation with respect to which
such notice relates. Each Lender shall make such Loan available to the
Administrative Agent at its address specified in or pursuant to Section
9.01 in immediately available funds, not later than 12:00 Noon (New York
City time), on the date specified in such notice. The Administrative Agent
shall pay the proceeds of such Loans to the Issuing Bank, which shall
immediately apply such proceeds to repay the Reimbursement Obligation.
(iii) To the extent the Reimbursement Obligation is not refunded by a
Lender pursuant to clause (ii) above, such Lender will pay to the
Administrative Agent, for the account of the Issuing Bank, immediately upon
the Issuing Bank's demand at any time during the period commencing after
such Reimbursement Obligation arises until reimbursement therefor in full
by the Borrower, an amount equal to such Lender's Percentage of such
Reimbursement Obligation, together with interest on such amount for each
day from the date of the Issuing Bank's demand for such payment (or, if
such demand is made after 1:00 P.M. (New York City time) on such date, from
the next succeeding Domestic Business Day) to the date of payment by such
Lender of such amount at a rate of interest per annum equal to the Federal
Funds Rate for the first three Domestic Business Days after the date of
such demand and thereafter at a rate per annum equal to the Base Rate for
each additional day. The Issuing Bank will pay to each Lender ratably all
amounts received from the Borrower for application in payment of its
Reimbursement Obligations in respect of any Letter of Credit, but only to
the extent such Lender has made payment to the Issuing Bank in respect of
such Letter of Credit pursuant hereto; provided that in the event such
payment received by the Issuing Bank is required to be returned, such
Lender will return to the Issuing Bank any portion thereof previously
distributed to it by the Issuing Bank.
(d) Obligations Absolute. The obligations of the Borrower and each Lender
under subsection (c) above shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
25
Agreement, under all circumstances whatsoever, including without limitation the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of this Agreement or any Letter of Credit or any
document related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or any
acts or omission of, a beneficiary of a Letter of Credit (or any Person for
whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other rights
that the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in connection
with this Agreement or the Letter of Credit or any document related hereto
or thereto or any unrelated transaction;
(v) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever;
(vi) payment under a Letter of Credit against presentation to the
Issuing Bank of documents that do not comply with the terms of such Letter
of Credit; provided, that this clause (vi) shall not limit the rights of
the Borrower under Section 2.15(e)(ii); or
(vii) any other act or omission to act or delay of any kind by any
Lender (including the Issuing Bank), the Administrative Agent or any other
Person or any other event or circumstance whatsoever that might, but for
the provisions of this subsection (vii), constitute a legal or equitable
discharge of or defense to the Borrower's or the Lender's obligations
hereunder.
(e) Indemnification; Expenses.
(i) Borrower hereby indemnifies and holds harmless each Lender
(including each Issuing Bank) and the Administrative Agent from and against
any and all claims, damages, losses, liabilities, costs or expenses which
it may reasonably incur in connection with a Letter of Credit issued
pursuant to this Section 2.15; provided that the Borrower shall not be
required to indemnify any Lender, or the Administrative Agent, for any
claims, damages, losses, liabilities, costs or expenses, to the
26
extent found by a court of competent jurisdiction to have been caused by
the gross negligence or willful misconduct of such Person.
(ii) None of the Lenders (including an Issuing Bank) nor the
Administrative Agent nor any of their officers or directors or employees or
agents shall be liable or responsible, by reason of or in connection with
the execution and delivery or transfer of or payment or failure to pay
under any Letter of Credit, including without limitation any of the
circumstances enumerated in subsection (d) above; provided that,
notwithstanding Section 2.15(d), the Borrower shall have a claim for direct
(but not consequential) damage suffered by it, to the extent finally
determined by a court of competent jurisdiction to have been caused by (x)
subject to the following sentence, the Issuing Bank's wrongful
determination whether documents presented under any Letter of Credit
complied with the terms of such Letter of Credit or (y) the Issuing Bank's
failure to pay under any Letter of Credit after the presentation to it of
documents strictly complying with the terms and conditions of the Letter of
Credit. The parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either
accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of
Credit.
(iii) Nothing in this subsection (e) is intended to limit the
obligations of the Borrower under any other provision of this Agreement. To
the extent the Borrower does not indemnify an Issuing Bank as required by
this subsection, the Lenders agree to do so ratably in accordance with
their Commitments.
Section 2.16. Stop Issuance Notice. If the Required Banks determine at any
time that the conditions set forth in Section 3.02 would not be satisfied in
respect of a Borrowing at such time, then the Required Banks may request that
the Administrative Agent issue a "Stop Issuance Notice", and the Administrative
Agent shall issue such notice to each Issuing Bank. Such Stop Issuance Notice
shall be withdrawn upon a determination by the Required Banks that the
circumstances giving rise thereto no longer exist. No Letter of Credit shall be
issued while a Stop Issuance Notice is in effect. The Required Banks may request
issuance of a Stop Issuance Notice only if there is a reasonable basis therefor,
and shall consider reasonably and in good faith a request from the Borrower for
withdrawal of the same on the basis that the conditions in Section 3.02 are
satisfied; provided that the Administrative Agent and the Issuing Banks may and
shall conclusively rely on any Stop Issuance Notice while it remains in effect.
Section 2.17. Change of Control. (a) If a Change of Control shall occur the
Borrower will, within ten days after the occurrence thereof, give the
27
Administrative Agent notice thereof, and the Administrative Agent shall promptly
notify each Lender thereof. Such notice shall describe in reasonable detail the
facts and circumstances giving rise thereto and the date of such Change of
Control and each Lender may, by notice to the Borrower and the Administrative
Agent given not later than fifty days after the date of such Change of Control,
terminate its Commitment, which shall be terminated, and declare the Note held
by it (together with accrued interest thereon) and any other amounts payable
hereunder for its account to be, and such Note and such amounts shall become,
due and payable, in each case on the sixtieth day after the date of such Change
of Control (or if such day is not a Domestic Business Day, the next succeeding
Domestic Business Day), without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
For purposes of this Section, the following terms have the following
meanings:
A "Change of Control" shall occur if (i) any "person" or "group" of persons
shall have acquired "beneficial ownership" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable
rules and regulations thereunder), of shares of Voting Stock representing 35% or
more of the Voting Power of the Borrower, (ii) during any period of twenty-five
consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such twenty-five month period were directors
of the Borrower (together with any replacement or additional directors whose
election was recommended by incumbent management of the Borrower or who were
elected by a majority of directors then in office) cease to constitute a
majority of the board of directors of the Borrower, or (iii) any Person or group
of related Persons shall acquire all or substantially all of the assets of the
Borrower; provided, that a Change of Control shall not be deemed to have
occurred pursuant to clause (iii) above if the Borrower shall have merged or
consolidated with or transferred all or substantially all of its assets to
another corporation in compliance with the provisions of Section 5.02 and the
surviving or successor or transferee corporation is no more leveraged than was
the Borrower immediately prior to such event. For purposes of this definition,
the term "leveraged" when used with respect to any corporation shall mean the
percentage represented by the total assets of that corporation divided by its
stockholders' equity, in each case determined and as would be shown in a
consolidated balance sheet of such corporation prepared in accordance with
generally accepted accounting principles in the United States of America.
"Voting Power" as applied to the stock of any corporation means the total
voting power represented by all outstanding Voting Stock of such corporation.
"Voting Stock" as applied to the stock of any corporation means stock of
any class or classes (however designated) having ordinary voting power for the
election of the directors of such corporation, other than stock having such
power only by reason of the happening of a contingency.
28
(b) If the Commitment of any Lender is terminated pursuant to this Section
at a time when any Letter of Credit is outstanding, then (i) such Lender shall
remain responsible to the Issuing Bank with respect to such Letter of Credit to
the same extent as if its Commitment had not terminated and (ii) the Borrower
shall pay to such Lender an amount in immediately available funds (which funds
shall be held as collateral pursuant to arrangements satisfactory to such
Lender) equal to such Lender's Percentage of the aggregate amount available for
drawing under all Letters of Credit outstanding at such time.
Section 2.18. Optional Increase in Commitments. At any time, if no Default
shall have occurred and be continuing, the Borrower, may, if it so elects,
increase the aggregate amount of the Commitments, either by designating a
financial institution not theretofore a Lender to become a Lender (such
designation to be effective only with the prior written consent of the
Administrative Agent, which consent will not be unreasonably withheld or
delayed), or by agreeing with an existing Lender that such Lender's Commitment
shall be increased. Upon execution and delivery by the Borrower and such Lender
or other financial institution of an instrument in form reasonably satisfactory
to the Administrative Agent, such existing Lender shall have a Commitment as
therein set forth or such other financial institution shall become a Lender with
a Commitment as therein set forth and all the rights and obligations of a Lender
with such a Commitment hereunder; provided:
(a) that the Borrower shall provide prompt notice of such increase to the
Administrative Agent, who shall promptly notify the Lenders;
(b) that the amount of such increase, together with all other increases in
the aggregate amount of the Commitments pursuant to this Section 2.18 since the
date of this Agreement, does not exceed $300,000,000; and
(c) that, for so long as the Related Agreement remains in effect, there
shall be a simultaneous increase in the "Commitments" under the Related
Agreement, and the Commitment of any Lender participating in an increase
pursuant to this Section 2.18 shall bear the same relation to the aggregate
amount of the Commitments hereunder as its "Commitment" under the Related
Agreement bears to the aggregate amount of the "Commitments" thereunder, in each
case after giving effect to the increases hereunder and thereunder.
Upon any increase in the aggregate amount of the Commitments pursuant to
this Section 2.18, within five Domestic Business Days, in the case of any Group
of Base Rate Loans then outstanding, and at the end of the then current Interest
Period with respect thereto, in the case of any Group of Euro-Dollar Loans then
outstanding, the Borrower shall prepay such Group in its entirety and, to the
extent the Borrower elects to do so and subject to the conditions specified in
Article 3, the Borrower shall reborrow Committed Loans from the Lenders in
proportion to their respective Commitments after giving effect to such increase,
29
until such time as all outstanding Committed Loans are held by the Lenders in
such proportion.
ARTICLE 3
Conditions
Section 3.01. Effectiveness. The Commitments shall become effective only
when all the following conditions have been satisfied:
(a) the Administrative Agent shall have received, from each party listed on
the signature pages hereof, either a counterpart hereof signed by such party or
facsimile or other written confirmation satisfactory to the Administrative Agent
confirming that such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received a duly executed Note for
the account of each Lender dated on or before the Closing Date and complying
with the provisions of Section 2.05;
(c) the Administrative Agent shall have received an opinion of General
Counsel of the Borrower (or such other counsel for the Borrower as may be
acceptable to the Agent), substantially in the form of Exhibit E hereto, and
covering such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request;
(d) the Administrative Agent shall have received an opinion of Davis Polk &
Wardwell, special counsel for the Administrative Agent, substantially in the
form of Exhibit F hereto, and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably request;
(e) the Borrower shall have paid to the Administrative Agent for the
account of each Lender a fee in the amount heretofore mutually agreed;
(f) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent; and
(g) the Administrative Agent shall have received evidence satisfactory to
it that all principal of any loans outstanding under, and all accrued interest
and fees under, the Existing Credit Agreement shall have been paid in full;
provided that the Commitments shall not become effective unless all of the
foregoing conditions are satisfied not later than December 8, 2000. Promptly
after the Effective Date occurs, the Administrative Agent shall notify the
30
Borrower and the Lenders thereof, and such notice shall be conclusive and
binding on all parties hereto.
Section 3.02. Borrowings and Issuances of Letters of Credit. The obligation
of any Lender to make a Loan on the occasion of any Borrowing, and the
obligation of an Issuing Bank to issue (or renew or extend the term of) any
Letter of Credit, is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, or receipt by the Issuing Bank of a Notice of
Issuance as required by Section 2.15(b), as the case may be;
(b) the fact that, immediately before and after such Borrowing or issuance,
no Default shall exist; and
(c) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true in all material respects on and as of
the date of such Borrowing or issuance.
Each Borrowing and each issuance or extension of a Letter of Credit hereunder
shall be deemed to be a representation and warranty by the Borrower on the date
of such Borrowing or issuance as to the facts specified in the foregoing clauses
3.02(b) and 3.02(c).
Section 3.03. Existing Credit Agreement. (a) On the Effective Date, the
commitments under the Existing Credit Agreement shall terminate, without further
action by any party thereto.
(b) The Lenders which are parties to the Existing Credit Agreement,
comprising the "Required Banks" as defined therein, hereby waive any requirement
of notice of termination of the commitments pursuant to the Existing Credit
Agreement and of prepayment of loans to the extent necessary to give effect to
the subsections 3.01(g) and 3.03(a), provided that any such prepayment of loans
shall be subject to Section 2.13 of the Existing Credit Agreement.
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
31
Section 4.02. Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or result in the creation or imposition of any Mortgage on any asset of
the Borrower or any of its Subsidiaries.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower.
Section 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower as of December 31, 1999
and the related consolidated statements of income and cash flows for the fiscal
year then ended, reported on by PricewaterhouseCoopers LLP, and included in the
Borrower's 1999 Form 10-K, copies of which have been delivered to the
Administrative Agent for each of the Lenders, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
the Borrower as of such date and its consolidated results of operations and cash
flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower as of
September 30, 2000 and the related unaudited consolidated statements of income
and cash flows for the nine months then ended, set forth in the Borrower's most
recent report on Form 10-Q, copies of which have been delivered to the
Administrative Agent for each of the Lenders, fairly present, in conformity with
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in paragraph (a) of this Section, the
consolidated financial position of the Borrower as of such date and its
consolidated results of operations and cash flows for such nine month period
(subject to normal year-end adjustments).
(c) Since September 30, 2000 there has been no change in the consolidated
financial position or operations of the Borrower, considered as a whole, which
would materially and adversely affect the ability of the Borrower to perform its
obligations hereunder and under the Notes.
Section 4.05. Litigation. Except as set forth in the Borrower's 1999 Form
10-K and any subsequent quarterly report on Form 10-Q filed by the Borrower with
the SEC prior to the date hereof, there is no action, suit, arbitration or other
proceeding, inquiry or investigation, at law or in equity, or before or by any
court,
32
public board or body, arbitrator or arbitral body, pending against the Borrower
or of which the Borrower has otherwise received official notice or which to the
knowledge of the Borrower is threatened against the Borrower, wherein there is a
reasonable possibility of an unfavorable decision, ruling or finding which would
materially adversely affect the Borrower's ability to perform its obligations
under this Agreement and the Notes and since the dates of the respective
descriptions of proceedings contained in the reports identified above, there has
been no change in the status of such proceedings which would materially
adversely affect the Borrower's ability to perform its obligations under this
Agreement and the Notes.
Section 4.06. Environmental Matters. The Borrower does not presently
anticipate that remediation costs and penalties associated with environmental
laws, to the extent not previously provided for, will have a material adverse
effect on the Borrower's ability to perform its obligations under this Agreement
and the Notes.
Section 4.07. Taxes. United States Federal income tax returns of the
Borrower have been examined and closed through the fiscal year ended December
31, 1989. The Borrower has filed all United States Federal income tax returns
and all other material tax returns that are required to be filed by it and has
paid all material taxes due pursuant to such returns or pursuant to any
assessment received by it, except for any such taxes being diligently contested
in good faith and by appropriate proceedings. Adequate reserves have been
provided on the books of the Borrower in respect of all taxes or other
governmental charges in accordance with generally accepted accounting
principles, and no tax liabilities in excess of the amount so provided are
anticipated that would materially and adversely affect the Borrower's ability to
perform its obligations under this Agreement and the Notes.
Section 4.08. Compliance with Laws. The Borrower and Marathon Oil Company
are in compliance with all applicable laws, rules and regulations, other than
such laws, rules or regulations (i) the validity or applicability of which the
Borrower or Marathon Oil Company is contesting in good faith or (ii) failure to
comply with which cannot reasonably be expected to have consequences which would
materially and adversely affect the Borrower's ability to perform its
obligations under this Agreement and the Notes.
Section 4.09. Marathon. Marathon Oil Company is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
33
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Bank has a Commitment hereunder or
any amount payable under any Note or any Letter of Credit Liability remains
unpaid:
Section 5.01. Information. The Borrower will deliver to the Administrative
Agent for each of the Lenders:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
as of the end of such fiscal year and the related consolidated statements of
income and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 45 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower as of the end of such quarter and the
related consolidated statements of income and cash flows for such quarter and
for the portion of the Borrower's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous fiscal year;
(c) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a certificate of the chief financial officer or
the chief accounting officer of the Borrower stating whether there exists on the
date of such certificate any Default and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) forthwith upon the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(f) promptly upon the filing thereof, copies of all annual, quarterly or
other reports which the Borrower shall have filed with the Securities and
Exchange Commission; and
34
(g) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries and affiliates as the
Administrative Agent, at the request of any Lender, may reasonably request.
Information required to be delivered pursuant to Sections 5.01(a), 5.01(b),
5.01(e) or 5.01(f) above shall be deemed to have been delivered on the date on
which the Borrower provides notice to the Administrative Agent that such
information has been posted on the Borrower's website on the Internet at the
website address listed on the signature pages hereof, at
sec.gov/edaux/searches.htm or at another website identified in such notice and
accessible by the Lenders without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 5.01(c) and (ii) the
Borrower shall deliver paper copies of the information referred to in Sections
5.01(a), 5.01(b), 5.01(e) or 5.01(f) to the Administrative Agent for any Lender
which requests such delivery.
Section 5.02. Consolidations and Mergers. So long as this Agreement shall
remain in effect, the Borrower shall not consolidate or merge with or into any
other Person or convey, transfer or lease all or substantially all of its assets
as an entirety to any Person, unless:
(i) either (x) the Borrower shall be the corporation
surviving such merger or (y) the corporation formed by such consolidation
or into which Borrower is merged or the Person which acquires by
conveyance, transfer or lease all or substantially all of the assets of the
Borrower as an entirety shall be a corporation organized and existing under
the laws of the United States of America or any state or the District of
Columbia and shall execute and deliver to each Bank an agreement, in form
and substance satisfactory to each Bank, containing an assumption by such
successor corporation of the due and punctual performance and observance of
each covenant and condition of this Agreement to be performed or observed
by the Borrower;
(ii) the Borrower or such successor corporation, as the case
may be, shall have a consolidated net worth (that is, total consolidated
assets less total consolidated liabilities) of no less than the net worth
(as so determined) of the Borrower immediately prior to such consolidation,
merger or conveyance, transfer or lease of all or substantially all of the
Borrower's assets as an entirety to such Person; and
(iii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
Upon any consolidation or merger in which the Borrower is not the surviving
corporation or any conveyance, transfer or lease of all or substantially all of
the assets of the Borrower as an entirety in accordance with this Section, the
successor corporation formed by such consolidation or into which the Borrower is
35
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Borrower
under this Agreement with the same effect as if such successor corporation had
been named as the Borrower herein. No such conveyance, transfer or lease of all
or substantially all of the assets of the Borrower as an entirety shall have the
effect of releasing the Borrower or any successor corporation which shall
theretofore have become such in the manner prescribed in this Section from any
liability hereunder.
The Borrower will not directly or indirectly convey, transfer or lease all
or substantially all of its assets except pursuant to a transaction subject to
and in compliance with this Section 5.02.
Section 5.03. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for its general corporate purposes. None
of such proceeds will be used in violation of any applicable law or regulation
including, without limitation, Regulation U of the Board of Governors of the
Federal Reserve System.
Section 5.04. Negative Pledge. If the Borrower or any Subsidiary of the
Borrower shall mortgage, pledge, encumber, or subject to a lien (hereinafter to
"Mortgage" or a "Mortgage") as security for any indebtedness for money borrowed
(x) any blast furnace facility or raw steel producing facility, or rolling mills
which are a part of a plant which includes such a facility; or (y) any property
capable of producing oil or gas; and, which in either case, is located in the
United States and determined by the Board of Directors of the Borrower, in good
faith, to be a principal property, the Borrower will secure or will cause such
Subsidiary to secure the Borrower's obligations hereunder equally and ratably
with all indebtedness or obligations secured by the Mortgage then being given
and with any other indebtedness of the Borrower or such Subsidiary then entitled
thereto; provided, however, this covenant shall not apply in the case of:
(i) any Mortgage existing on the date of this Agreement
(whether or not such Mortgage includes an after-acquired property
provision);
(ii) any Mortgage, including a purchase money Mortgage,
incurred in connection with the acquisition of any property (for purposes
hereof the creation of any Mortgage within 180 days after the acquisition
or completion of construction of such property shall be deemed to be
incurred in connection with the acquisition of such property), the
assumption of any Mortgage previously existing on such acquired property or
any Mortgage existing on the property of any corporation when such
corporation becomes a Subsidiary of the Borrower;
(iii) any Mortgage on such property in favor of the United
States of America, any state, or any agency, department, political
36
subdivision or other instrumentality of either, to secure partial, progress
or advance payments to the Borrower or any Subsidiary of the Borrower
pursuant to the provisions of any contract or any statute;
(iv) any Mortgage on such property in favor of the United
States of America, any state, or any agency, department, political
subdivision or other instrumentality of either, to secure borrowings by the
Borrower or any Subsidiary of the Borrower for the purchase or construction
of the property mortgaged;
(v) any Mortgage in connection with a sale or other
transfer of (i) oil or gas in place for a period of time or in an amount
such that the purchaser will realize therefrom a specified amount of money
or specified amount of minerals or (ii) any interest in property of the
character commonly referred to as an "oil payment" or "production payment";
(vi) any Mortgage on any property arising in connection
with or to secure all or any part of the cost of the repair, construction,
improvement, alteration, exploration, development or drilling of such
property or any portion thereof;
(vii) any Mortgage on any pipeline, gathering system,
pumping or compressor station, pipeline storage facility, other pipeline
facility, drilling equipment, drilling platform, drilling barge, any
movable railway, marine or automotive equipment, gas plant, office
building, storage tank, or warehouse facility, any of which is located on
any property included herein under clause (y) above;
(viii) any Mortgage on any equipment or other personal
property used in connection with any property included herein under clause
(y) above;
(ix) any Mortgage on any property included herein under
clause (y) above arising in connection with the sale of accounts receivable
resulting from the sale of oil or gas at the wellhead; or
(x) any renewal of or substitution for any Mortgage
permitted under the preceding clauses.
Notwithstanding the foregoing restriction contained in this Section 5.04, the
Borrower may and may permit its Subsidiaries to incur liens or grant Mortgages
on property covered by the restriction above so long as the net book value of
the property so encumbered together with all property subject to the restriction
on sale and leasebacks contained in Section 5.05 does not at the time such lien
or Mortgage is granted exceed 5% of Consolidated Net Tangible Assets.
"Consolidated Net Tangible Assets" means the aggregate value of all assets of
the Borrower and its Subsidiaries on a consolidated basis after deducting
37
therefrom (a) all current liabilities (excluding all long-term debt due within
one year), (b) all investments in unconsolidated subsidiaries and all
investments accounted for on the equity basis and (c) all goodwill, patent and
trademarks, unamortized debt discount and other similar intangibles (all
determined in conformity with generally accepted accounting principles and
calculated on a basis consistent with the Borrower's most recent audited
consolidated financial statements).
Section 5.05. Sale and Leaseback. The Borrower will not, nor will it permit
any Subsidiary of the Borrower to, sell or transfer (x) any blast furnace
facility or raw steel producing facility, or rolling mills which are a part of a
plant which includes such a facility; or (y) any property capable of producing
oil or gas; which in either case is located in the United States and determined
by the Board of Directors of the Borrower, in good faith, to be a principal
property, with the intention of taking back a lease of such property; provided,
however, this covenant shall not apply if:
(i) the sale is to a Subsidiary of the Borrower (or to the
Borrower in the case of a Subsidiary);
(ii) the lease is for a temporary period by the end of which
it is intended that the use of such property by the lessee will be
discontinued;
(iii) the Borrower or a Subsidiary of the Borrower could, in
accordance with Section 5.04, Mortgage such property without equally and
ratably securing the Borrower's obligations hereunder;
(iv) the transfer is incident to or necessary to effect any
operating, farm out, farm in, unitization, acreage exchange, acreage
contributions, bottom hole or dry hole arrangements or pooling agreement or
any other agreement of the same general nature relating to the acquisition,
exploration, maintenance, development and operation of oil or gas
properties in the ordinary course of business or as required by regulatory
agencies having jurisdiction over the property; or
(v) (A) the Borrower promptly informs the Administrative
Agent of such sale, (B) the net proceeds of such sale are at least equal to
the fair value (as determined by resolution adopted by the Board of
Directors of the Borrower) of such property and (C) the Borrower shall, and
in any such case the Borrower covenants that it will, within 180 days after
such sale, apply an amount equal to the net proceeds of such sale to the
retirement of debt of the Borrower, or of a Subsidiary of the Borrower in
the case of property of such Subsidiary, maturing by its terms more than
one year after the date on which it was originally incurred (herein called
"funded debt"); provided that the amount to be applied to the retirement of
funded debt of the Borrower or of a Subsidiary of the Borrower shall be
reduced by the amount equal to the amount below if, within 75 days after
38
such sale, the Borrower shall deliver to the Administrative Agent an
officer's certificate (1) stating that on a specified date after such sale
the Borrower or a Subsidiary of the Borrower, as the case may be,
voluntarily retired a specified principal amount of funded debt, (2)
stating that such retirement was not effected by payment at maturity or
pursuant to any applicable mandatory sinking fund or prepayment provision
(other than provisions requiring retirement of any funded debt of the
Borrower or a Subsidiary of the Borrower, as the case may be, under the
circumstances referred to in this Section 5.05) and (3) stating the then
optional redemption or prepayment price applicable to funded debt so
retired or, if there is no such price applicable, the amount applied by the
Borrower or a Subsidiary of the Borrower, as the case may be, to the
retirement of such funded debt. The Borrower shall deliver to the
Administrative Agent a certified copy of the resolution of the Board of
Directors of the Borrower referred to in paragraph (v)(B) above and an
officer's certificate setting forth all material facts under this. The term
retirement of such funded debt shall include the in-substance defeasance of
such funded debt in accordance with then applicable accounting rules.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Note or to
reimburse any drawing under any Letter of Credit when required hereunder, or
shall fail to pay within five Domestic Business Days after the due date thereof
any interest or fees payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant contained in
Section 5.02;
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those contained in Section 5.04 or 5.05
or those covered by clauses (a) or (b) above) for 10 days after written notice
thereof has been given to the Borrower by the Administrative Agent at the
request of any Bank;
(d) the Borrower shall fail to observe or perform any covenant contained in
Section 5.04 or 5.05 for 30 days after written notice thereof has been given to
the Borrower by the Administrative Agent at the request of any Lender; provided
that the continuation of such failure for 30 days or longer after such notice
shall not constitute an Event of Default if (i) such failure is curable but
cannot be cured within 30 days, (ii) the Borrower, upon the aforesaid notice
from the Administrative Agent, institutes curative action as promptly as
practicable,
39
and (iii) the Borrower diligently pursues such action to completion
within a reasonable period, which period shall not, in any event, continue for
more than 90 days after the aforesaid notice from the Administrative Agent;
(e) any representation, warranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made or deemed made;
(f) the Borrower shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced against the
Borrower seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower under the federal bankruptcy laws as now or
hereafter in effect; or
(h) notice of intent to terminate a Material Plan shall be filed under
Title IV of ERISA by any member of the ERISA Group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or any member of the ERISA Group
shall incur and not satisfy a withdrawal liability under Title IV of ERISA in
respect of a Multiemployer Plan in excess of (i) $50,000,000 for any year or
(ii) $250,000,000 in the aggregate;
then, and in every such event, the Administrative Agent shall (i) if requested
by Lenders having more than 50% in aggregate amount of the Commitments, by
notice to the Borrower terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by Lenders holding Notes evidencing more than
50% in aggregate principal amount of the Loans, by notice to the Borrower
declare the Notes (together with accrued interest thereon) and any other amounts
payable hereunder to be, and the Notes and such amounts shall thereupon become,
immediately due and payable without presentment, demand, protest or other
40
notice of any kind, all of which are hereby waived by the Borrower; provided
that in the case of any of the Events of Default specified in paragraph (f) or
(g) above, without any notice to the Borrower or any other act by the
Administrative Agent or the Lenders, the Commitments shall thereupon terminate
and the Notes (together with accrued interest thereon) and any other amounts
payable hereunder shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give notice
to the Borrower under Section 6.01(c) or (d) promptly upon being requested to do
so by any Lender and shall thereupon notify all the Lenders thereof.
Section 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of Lenders having more than 50% of the
Letter of Credit Liabilities, pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the aggregate
amount available for drawing under all Letters of Credit outstanding at such
time; provided that, upon the occurrence of any Event of Default specified in
Section 6.01(f) or 6.01(g) with respect to the Borrower, the Borrower shall pay
such amount forthwith without any notice or demand or any other act by the
Administrative Agent or the Lenders.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with all such powers as
are reasonably incidental thereto.
Section 7.02. Agents and Affiliates. Each Agent shall have the same rights
and powers under this Agreement as any other Lender and may exercise or refrain
from exercising the same as though it were not one of the Agents. Each Agent and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not one of the Agents.
Section 7.03. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
41
not be required to take any action with respect to any Default, except as
expressly provided in Article 6.
Section 7.04. Consultation with Experts. Each Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 7.05. Liability of Agents. None of the Agents, their affiliates and
their respective directors, officers, agents and employees shall be liable for
any action taken or not taken by it in connection herewith (i) with the consent
or at the request of the Required Lenders (or such different number of Lenders
as any provision hereof expressly requires for such consent or request) or (ii)
in the absence of its own gross negligence or willful misconduct; provided that
the provisions of this sentence are for the sole benefit of the Agents, their
affiliates and their respective directors, officers, agents and employees and
shall not release any Bank from liability it would otherwise have to the
Borrower. None of the Agents, their affiliates and their respective directors,
officers, agents and employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article 3 except, in the
case of the Administrative Agent, receipt of items required to be delivered to
it; or (iv) the validity, effectiveness or genuineness of this Agreement, the
Notes or any other instrument or writing furnished in connection herewith. No
Agent shall incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire, telex,
facsimile or similar writing) believed by it to be genuine or to be signed by
the proper party or parties. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to any Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom and is intended to create or reflect only an
administrative relationship between independent contracting parties.
Section 7.06. Indemnification. The Lenders shall, ratably in proportion to
their Credit Exposures, indemnify each Agent, and Issuing Bank, their respective
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any Letter of Credit or any action taken or omitted by such
indemnitees hereunder or thereunder.
42
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance on any other Lender Party, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance on any other
Lender Party, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Borrower shall have the right to appoint a
successor Administrative Agent from among the Lenders, subject to the approval
of the Required Lenders, which shall not be unreasonably withheld. If no
successor Administrative Agent shall have been so appointed by the Borrower and
approved by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $100,000,000. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent resigns as Administrative Agent hereunder, the provisions
of this Article shall inure to its benefit as to actions taken or omitted to be
taken by it while it was Administrative Agent.
Section 7.09. Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon by the Borrower and the Administrative Agent.
Section 7.10. Other Agents. None of the Co-Agents, the Documentation Agents
and the Syndication Agent, in their capacities as such, shall have any duties or
obligations of any kind under this Agreement.
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or before the first day of any Interest Period for any Euro-Dollar Loans or
Money Market LIBOR Loan:
43
(a) the Administrative Agent is advised by the Reference Lenders that
deposits in dollars in the applicable amounts are not being offered to the
Reference Lenders in the London interbank market for such Interest Period, or
(b) in the case of Euro-Dollar Loans, Lenders having at least 50% in
aggregate amount of the Commitments advise the Administrative Agent that the
London Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding their
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such suspension no longer
exist, (i) the obligations of the Lenders to make Euro-Dollar Loans, or to
continue or convert outstanding Loans as or into Euro-Dollar Loans, shall be
suspended and (ii) each outstanding Euro-Dollar Loan shall be converted into a
Base Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the Borrower notifies the Administrative Agent at least two
Domestic Business Days before the date of any affected Borrowing for which a
Notice of Borrowing has previously been given that it elects not to borrow on
such date, (i) if such affected Borrowing is a Euro-Dollar Borrowing, such
Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
affected Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest Period
applicable thereto at the Prime Rate for such day.
Section 8.02. Illegality. (a) If, on or after the date hereof, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its Euro-Dollar Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for any Lender (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Lender
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon
until such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans, or to convert outstanding Loans into
Euro-Dollar Loans or continue outstanding Loans as Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Lender shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
44
(b) If such notice is given, each Euro-Dollar Loan of such Lender then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Euro-Dollar Loan if such
Lender may lawfully continue to maintain and fund such Loan as a Euro-Dollar
Loan to such day or (b) immediately if such Lender shall determine that it may
not lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to
such day. Interest and principal on any such Base Rate Loan shall be payable on
the same dates as, and on a pro rata basis with, the interest and principal
payable on the related Euro-Dollar Loans of the other Lenders.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x) the
date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(A) shall subject any Lender (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its
Fixed Rate Loans, its Note or its obligation to make Fixed
Rate Loans or its obligations hereunder in respect of Letters
of Credit, or shall change the basis of taxation of payments
to any Lender (or its Applicable Lending Office) of the
principal of or interest on its Fixed Rate Loans or any other
amounts due under this Agreement in respect of its Fixed Rate
Loans or its obligation to make Fixed Rate Loans or its
obligations hereunder in respect of Letters of Credit (except
for taxes based on or measured in whole or in part by the
gross income, net income, gross revenue or gross receipts of
such Lender or its Applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive
office or Applicable Lending Office is located); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System, but
excluding (y) with respect to any Euro-Dollar Loan any such
requirement with respect to which such Lender is entitled to
compensation during the relevant Interest Period under
Section 8.03(d) and (z) any such requirement with respect to
which such Lender is entitled to compensation pursuant to
Section 8.03(b)), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (or its
Applicable Lending
45
Office) or shall impose on any Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans or its obligations
hereunder in respect of Letters of Credit;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Fixed Rate Loan,
or of issuing or participating in any Letter of Credit, or to reduce the amount
of any sum received or receivable by such Lender (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Lender to be material, then, within 15 days after demand
by such Lender (with a copy to the Administrative Agent), the Borrower shall pay
to such Lender such additional amount or amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction, provided that the Borrower shall
not be obligated to compensate any Lender (or its Parent) in respect of any such
reduction in respect of periods more than six months prior to the date on which
such Lender shall have notified the Borrower of its intention to demand such
compensation and setting forth the amount or the specific basis of computation
thereof.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to Section 8.03(a) or
(b) and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to it. A
certificate of any Lender claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
46
(d) The Borrower shall pay for the account of each Lender on the last day
of each Interest Period with respect to any Euro-Dollar Loan (and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof), if at any time during such Interest Period such Lender
shall be required to maintain (and shall maintain in amounts deemed by such
Lender to be material) reserves against any category of liabilities which
includes deposits by reference to which the interest rate on Euro-Dollar Loans
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender which includes loans by a
non-United States office of such Lender to United States residents (including
without limitation reserves against "Eurocurrency liabilities" under Regulation
D), an additional amount (determined by such Lender and notified to the Borrower
and the Administrative Agent) equal to the product of the following for each day
during such Interest Period:
(i) the principal amount of the Euro-Dollar Loan of such
Lender to which such Interest Period relates outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which
is the applicable London Interbank Offered Rate (expressed as a decimal)
and the denominator of which is one minus the stated rate (expressed as a
decimal) at which such reserve requirements are imposed on such Lender on
such day minus (y) such numerator; and
(iii) 1/360.
If a Lender which is entitled to require payment by the Borrower of the amount
provided for in this Section 8.03(d) determines that a lesser amount is required
to compensate it for the costs of the reserve requirements referred to therein,
such Lender may, but shall not be obligated to, reduce the amount payable by the
Borrower thereunder to a lesser amount specified in the notice delivered
pursuant to this Section 8.03(d).
(e) Each Lender organized under the laws of a jurisdiction outside the
United States of America agrees that it shall deliver to the Borrower (with a
copy to the Administrative Agent) (i) within 30 days after the date of execution
of this Agreement, two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, as appropriate, promulgated pursuant to the Code,
indicating that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes as
permitted by the Code, (ii) from time to time, such extensions or renewals of
such forms (or successor forms) as may reasonably be requested by the Borrower
but only to the extent such Lender determines that it may properly effect such
extensions or renewals under applicable tax treaties, laws, regulations and
directives and (iii) in the event of a transfer of any Loan to an affiliate of
such Lender, a new Internal Revenue Service Form W-8BEN or W-8ECI (or any
successor form), as the case may be, for such affiliate. The Borrower and the
47
Administrative Agent shall each be entitled to rely on such forms in its
possession until receipt of any revised or successor form pursuant to the
preceding sentence.
Section 8.04. Base Rate Loans Substituted for Affected Fixed Rate Loans. If
(i) the obligation of any Lender to make, or to continue or convert outstanding
Loans as or to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to the Lender demanding such
compensation, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, all Loans which would otherwise be made by such Lender as (or
continued as or converted to) Euro-Dollar Loans shall instead be Base Rate Loans
on which interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Lenders. If such Lender notifies the
Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist, the principal amount of each such Base Rate Loan
shall be converted into a Euro-Dollar Loan on the first day of the next
succeeding Interest Period applicable to the related Euro-Dollar Loans of the
other Lenders.
Section 8.05. Substitution of Lender. If (i) the obligation of any Lender
to make or to convert or continue outstanding Loans as or into Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Lender has demanded
compensation under Section 8.03, the Borrower shall have the right, with the
assistance of the Administrative Agent, to designate a substitute bank or banks
(which may be one or more of the Lenders) mutually satisfactory to the Borrower,
the Administrative Agent and the Issuing Banks to purchase for cash, pursuant to
an Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto, the outstanding Loans and Letter of Credit Liabilities of such Lender
and assume the Commitment of such Lender, without recourse to or warranty by, or
expense to, such Lender, for a purchase price equal to the principal amount of
all of such Lender's outstanding Loans and Reimbursement Obligations plus any
accrued but unpaid interest thereon and the accrued but unpaid fees for the
account of such Lender hereunder plus such amount, if any, as would be payable
pursuant to Section 2.11 if the outstanding Loans of such Lender were prepaid in
their entirety on the date of consummation of such assignment.
Section 8.06. Notice Mandatory. The Administrative Agent or the affected
Lender, as the case may be, shall promptly give notice to the Borrower when
circumstances which gave rise to a suspension of the obligations of the Lenders
or a Lender to make or maintain Euro-Dollar Loans pursuant to Section 8.01 or
8.02, or to a demand for compensation under Section 8.03, no longer exist.
48
ARTICLE 9
Miscellaneous
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
or similar writing) and shall be given to such party: (a) in the case of the
Borrower or the Administrative Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (b) in the case of any Lender,
at its address, facsimile number or telex number set forth in its Administrative
Questionnaire or (c) in the case of any party, at such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by telex, when
transmitted to the telex number referred to in this Section and the appropriate
answerback is received, (ii) if given by facsimile, when transmitted to the
facsimile number referred to in this Section and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iv) if
given by any other means, when delivered at the address referred to in this
Section; provided that notices to the Administrative Agent under Article 2 or
Article 8 shall not be effective until received.
Section 9.02. No Waivers. No failure or delay by any Lender Party in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i) all
reasonable and documented (with itemized invoices) out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in connection with the preparation of this Agreement,
any waiver or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all reasonable
and documented (with itemized invoices) out-of-pocket expenses incurred by each
Lender Party, including (without duplication) the fees and disbursements of
outside counsel and the allocated cost of inside counsel, in connection with
such Event of Default and collection, or any bankruptcy, insolvency,
reorganization or other enforcement proceedings resulting therefrom. The
Borrower shall indemnify each Lender Party against any transfer taxes,
documentary taxes, assessments or charges made by any governmental authority by
reason of the execution and delivery of this Agreement or the Notes.
(b) The Borrower agrees to indemnify each Lender Party, their respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from
49
and against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement or any actual or proposed use of proceeds of
Loans hereunder; provided that (i) no Indemnitee shall have the right to be
indemnified hereunder for its own gross negligence or willful misconduct or for
its breach of the express terms of this Agreement, in each case as determined by
final judgment of a court of competent jurisdiction; (ii) the Borrower shall
not, in connection with any such proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm at any one time for the Indemnitees (which shall be selected
by the Administrative Agent after consultation with the Borrower); (iii) each
Indemnitee shall consult with the Borrower from time to time at the request of
the Borrower regarding the conduct of the defense in any such proceeding; and
(iv) the Borrower shall not be obligated to pay an amount of any settlement
entered into without its consent (which shall not be unreasonably withheld).
Section 9.04. Sharing. Each Lender agrees that if it shall, by exercising
any right of set-off or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest then due with
respect to the Loans and Letter of Credit Liabilities held by it which is
greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest then due with respect to the Loans
and Letter of Credit Liabilities held by such other Lender, the Lender receiving
such proportionately greater payment shall purchase such participations in the
Loans held by the other Lenders, and such other adjustments shall be made, as
may be required so that all such payments of principal and interest with respect
to the Loans and Letter of Credit Liabilities held by the Lenders shall be
shared by the Lenders pro rata; provided that nothing in this Section shall
impair the right of any Lender to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness hereunder.
Section 9.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if the
rights or duties of any Issuing Bank or Agent are affected thereby, by it);
provided that no such amendment or waiver shall:
(a) unless signed by all the Lenders, (i) increase or decrease the
Commitment of any Lender (except for a ratable decrease in the Commitments of
all the Lenders) or subject any Lender to any additional obligation, (ii) reduce
the principal of or interest on any Loan or the amount to be reimbursed in
respect of any Letter of Credit or any interest thereon or any fees hereunder,
(iii) postpone the date fixed for any payment of principal of or interest on any
Loan or for
50
reimbursement in respect of any Letter of Credit or any fees hereunder or for
the termination of any Commitment, or (except as expressly provided in Section
2.15) the expiry date of any Letter of Credit, (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section or any other provision of this Agreement or
(v) change this clause 9.05(a); or
(b) unless signed by a Designated Lender or its Designating Lender, (i)
subject such Designated Lender to any additional obligation, (ii) affect its
rights hereunder (unless the rights of all the Lenders hereunder are similarly
affected) or (iii) change this clause 9.05(b).
For avoidance of doubt, the operation of Section 2.18 in accordance with its
terms is not an amendment subject to this Section 9.05.
Section 9.06. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans and Letter of Credit Liabilities at the
time owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender or an affiliate
of a Lender or an Approved Fund with respect to a Lender, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment (determined as of the date the Assignment and
Assumption Agreement, as hereinafter defined, with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000, unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of outstanding Money Market Loans and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an agreement,
substantially in the form of Exhibit G hereto (an "Assignment and Assumption
Agreement"), together with a processing and recordation fee of $3,500, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section,
51
from and after the effective date specified in each Assignment and Assumption
Agreement, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption Agreement,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption Agreement, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption Agreement
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 8.03, 8.04 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in the State of Delaware or
New York a copy of each Assignment and Assumption Agreement delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans and/or Letter of Credit Liabilities owing to it); provided that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in clause (i), (ii) or (iii)
of Section 9.05(a) that affects such Participant. Subject to paragraph (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits
52
of Sections 9.05(a) and Article 8 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.04 as though it were a Lender, provided such
Participant agrees to be subject to Section 9.04 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 8.03 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant organized under the laws of a jurisdiction
outside the United States shall not be entitled to the benefits of Section
8.03(a) unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 8.03(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 9.07. Designated Lenders. (a) Subject to the provisions of this
subsection (a), any Lender may at any time designate an Approved Fund to provide
all or a portion of the Loans to be made by such Lender pursuant to this
Agreement; provided that such designation shall not be effective unless the
Borrower and the Administrative Agent consent thereto (which consents shall not
be unreasonably withheld). When a Lender and its Approved Fund shall have signed
an agreement substantially in the form of Exhibit H hereto (a "Designation
Agreement") and the Borrower and the Administrative Agent shall have signed
their respective consents thereto, such Approved Fund shall become a Designated
Lender for purposes of this Agreement. The Designating Lender shall thereafter
have the right to permit such Designated Lender to provide all or a portion of
the Loans to be made by such Designating Lender pursuant to Section 2.01 or
2.03, and the making of such Loans or portion thereof shall satisfy the
obligation of the Designating Lender to the same extent, and as if, such Loans
or portion thereof were made by the Designating Lender. As to any Loans or
portion thereof made by it, each Designated Lender shall have all the rights
that a Lender making such Loans or portion thereof would have had under this
Agreement and otherwise; provided that (x) its voting rights under this
Agreement shall be exercised solely by its Designating Lender and (y) its
Designating Lender shall remain solely responsible to the other parties hereto
for the performance of such Designated Lender's obligations under this
Agreement, including its obligations in respect of the Loans or portion thereof
made by it. No additional Note shall be required to evidence the Loans or
portion thereof made by a Designated Lender; and the
53
Designating Lender shall be deemed to hold its Note as agent for its Designated
Lender to the extent of the Loans or portion thereof funded by such Designated
Lender. Each Designating Lender shall act as administrative agent for its
Designated Lender and give and receive notices and other communications on its
behalf. Any payments for the account of any Designated Lender shall be paid to
its Designating Lender as administrative agent for such Designated Lender and
neither the Borrower nor the Administrative Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any Designated
Lender may, with notice to (but without the prior written consent of) the
Borrower and the Administrative Agent, (i) assign all or portions of its
interest in any Loans to its Designating Lender or to any financial institutions
consented to by the Borrower and the Administrative Agent that provide liquidity
and/or credit facilities to or for the account of such Designated Lender to
support the funding of Loans or portions thereof made by it and (ii) disclose on
a confidential basis any non-public information relating to its Loans or
portions thereof to any rating agency, commercial paper dealer or provider of
any guarantee, surety, credit or liquidity enhancement to such Designated
Lender.
(b) Each party to this Agreement agrees that it will not institute against,
or join any other person in instituting against, any Designated Lender any
bankruptcy, insolvency, reorganization or other similar proceeding under any
federal or state bankruptcy or similar law, for one year and a day after all
outstanding senior indebtedness of such Designated Lender is paid in full. The
Designating Lender for each Designated Lender agrees to indemnify, save, and
hold harmless each other party hereto for any loss, cost, damage and expense
arising out of its inability to institute any such proceeding against such
Designated Lender. This subsection (b) shall survive the termination of this
Agreement.
Section 9.08. No Reliance on Margin Stock. Each Lender represents to the
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
Section 9.09. Governing Law. This Agreement and each Note shall be governed
by and construed in accordance with the laws of the State of New York.
Section 9.10. Counterparts; Integration. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
54
Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
USX CORPORATION
By: /s/ E.F. Guna
----------------------------------------------
Title: Vice President & Treasurer
600 Grant Street
Pittsburgh, Pennsylvania 15219-4776
Attention: Treasurer
Administrative Agent
--------------------
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent and as Lender
By: /s/ Carl J. Mehldau, Jr.
----------------------------------------------
Title: Associate
60 Wall Street
New York, New York 10260-0060
Facsimile: 212-648-5018
THE CHASE MANHATTAN BANK, N.A., as Lender
By: /s/ James H. Ramage
----------------------------------------------
Title: Managing Director
56
Syndication Agent
-----------------
BANK OF AMERICA, N.A., as Syndication Agent and as
Lender
By: /s/ Ronald E. McKaig
--------------------------------------------
Title: Managing Director
Documentation Agents
--------------------
CITIBANK, N.A., as Documentation Agent and as Lender
By: /s/ Gordon H. DeKuyper
--------------------------------------------
Title: Vice President,
Global Energy & Mining
THE BANK OF NOVA SCOTIA, as Documentation Agent and
as Lender
By: /s/ F. C. H. Ashby
--------------------------------------------
Title: Senior Manager - Loan Operations
57
COMMERZBANK AG, NEW YORK and GRAND CAYMAN BRANCHES,
as Documentation Agent and as Lender
By: /s/ M. Annette Hanami
--------------------------------------------
Title: Vice President
By: /s/ Andrew P. Lusk
--------------------------------------------
Title: Assistant Vice President
Senior Managing Agents
----------------------
MELLON BANK, N.A.
By: /s/ Robert J. Reichenbach
--------------------------------------------
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ David B. Gookin
--------------------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN LIMITED
By: /s/ John Dippo
--------------------------------------------
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Timothy White
--------------------------------------------
Title: Senior Vice President
58
Managing Agent
--------------
NATIONAL CITY BANK
By: /s/ Davis R. Bonner
----------------------------------------
Title: Senior Vice President
Other Lenders
-------------
COMERICA BANK
By: /s/ Robert P. Wilson
----------------------------------------
Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/ Walter C. Parelli
----------------------------------------
Title: Vice President
59
THE NORTHERN TRUST COMPANY
By: /s/ Craig Smith
-------------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Jay Chall
-------------------------------------------
Title: Director
By: /s/ William S. Lutkins
-------------------------------------------
Title: Vice President
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Michelle Swanson
-------------------------------------------
Title: Authorized Signatory
THE SANWA BANK, LIMITED
By: /s/ Jean-Michel Fatovic
-------------------------------------------
Title: Vice President
FIFTH THIRD BANK
By: /s/ David C. Gordley
-------------------------------------------
Title: Vice President
60
THE TOKAI BANK, LIMITED
By: /s/ Shinichi Nakatani
------------------------------------------
Title: Assistant General Manager
THE SUMITOMO BANK, LIMITED
By: /s/ C. Michael Garrido
------------------------------------------
Title: Senior Vice President
61
COMMITMENT SCHEDULE
Lender Commitment
Morgan Guaranty Trust Company of New York $ 75,000,000
The Chase Manhattan Bank, N.A. $ 75,000,000
The Bank of Nova Scotia $ 150,000,000
Bank of America, N.A. $ 150,000,000
Citibank, N.A. $ 150,000,000
Commerzbank AG $ 150,000,000
Mellon Bank, N.A. $ 93,750,000
PNC Bank National Association $ 93,750,000
National City Bank $ 56,250,000
The Industrial Bank of Japan, Limited $ 48,750,000
Comerica Bank $ 45,000,000
The Dai-Ichi Kangyo Bank, Limited $ 45,000,000
The Bank of New York $ 37,500,000
The Sumitomo Bank, Limited $ 37,500,000
The Northern Trust Company $ 30,000,000
Credit Suisse First Boston $ 26,250,000
Lehman Commercial Paper Inc. $ 26,250,000
The Sanwa Bank, Limited $ 26,250,000
Fifth Third Bank $ 18,750,000
The Tokai Bank, Limited $ 18,750,000
Total $1,353,750,000
FIVE YEAR PRICING SCHEDULE
Each of "Facility Fee Rate" and "Euro-Dollar Margin" means, for any day,
the rate per annum set forth below in the row opposite such term and in the
column corresponding to the Pricing Level and Usage that apply on such day:
Pricing Level Level I Level II Level III Level IV Level V
Facility Fee Rate 0.100% 0.125% 0.150% 0.200% 0.250%
Euro-Dollar Margin
Usage * 50% 0.250% 0.375% 0.475% 0.675% 1.000%
Usage ** 50% 0.350% 0.500% 0.600% 0.800% 1.125%
* Less Than
** More Than or Equal To
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraph of this Schedule:
"Level I Pricing" applies on any day on which the Borrower's long-term debt
is rated A- or higher by S&P or A3 or higher by Moody's.
"Level II Pricing" applies on any day on which (i) the Borrower's long-term
debt is rated BBB+ or higher by S&P or Baa1 or higher by Moody's and (ii) Level
I Pricing does not apply.
"Level III Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated BBB or higher by S&P or Baa2 or higher by Moody's and
(ii) none of Level I Pricing and Level II Pricing applies.
"Level IV Pricing" applies on any day on which (i) the Borrower's long-term
debt is rated BBB- or higher by S&P or Baa3 or higher by Moody's and (ii) none
of Level I Pricing, Level II Pricing and Level III Pricing applies.
"Level V Pricing" applies on any day if no other Pricing Level applies on
such day.
"Pricing Level" refers to the determination of which of Level I, Level II,
Level III, Level IV or Level V Pricing applies on any day.
The "Usage" applicable to any date is the percentage equivalent of a
fraction the numerator of which is the Total Outstanding Amount at such date and
the denominator of which is the aggregate amount of the Commitments at such
date. If for any reason any Total Outstanding Amount remains following the
termination of the Commitments, Usage will be deemed to be more than 50%.
2
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The ratings in effect for
any day are those in effect at the close of business on such day.
In the case of split ratings from S&P and Moody's, the rating to be used to
determine the applicable Pricing Level is the higher of the two (e.g., A-/Baa1
results in Level I Pricing); provided that if the split is more than one full
rating category, the intermediate (or higher of the two intermediate ratings)
will be used (e.g., A-/Baa2 results in Level II Pricing, as does A-/Baa3).
3
EXHIBIT A
NOTE
New York, New York
___________ __, ____
For value received, USX CORPORATION, a Delaware corporation (the
"Borrower"), promises to pay to the order of ______________________ (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Morgan Guaranty Trust Company of New York, at 60 Wall
Street, New York, New York.
The date, amount and maturity of each Loan made by the Lender and all
repayments of the principal thereof shall be recorded by the Lender and, if the
Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make (or any error in
making) any such recordation or endorsement shall not affect the Borrower's
obligations hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Five-Year Credit Agreement
dated as of November 30, 2000 among USX Corporation, the Lenders party thereto,
Bank of America, N.A., as Syndication Agent, Citibank, N.A., The Bank of Nova
Scotia and Commerzbank AG, as Documentation Agents and Morgan Guaranty Trust
Company of New York, as Administrative Agent (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
USX CORPORATION
By: __________________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Amount of
Amount of Principal
Date Loan Repaid Notation Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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A-2
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Administrative Agent")
From: USX Corporation (the "Borrower")
Re: Five-Year Credit Agreement (the "Credit Agreement") dated as of
November 30, 2000 among the Borrower, the Lenders party thereto and the
Agents party thereto.
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount/1/ Interest Period/2/
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
________________________
/1/ Amount must be $50,000,000 or a larger multiple of $10,000,000.
/2/ Not less than one month (LIBOR Auction) or not less than 30 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
USX Corporation
By: ____________________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Lender]
Re: Invitation for Money Market Quotes to USX Corporation (the
"Borrower")
Pursuant to Section 2.03 of the Five-Year Credit Agreement dated as of
November 30, 2000 among the Borrower, the Lenders party thereto and the Agents
party thereto, we are pleased on behalf of the Borrower to invite you to submit
Money Market Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
Morgan Guaranty Trust Company of New
York, as Administrative Agent
By: _____________________________________
Authorized Officer
EXHIBIT D
FORM OF MONEY MARKET QUOTE
To: Morgan Guaranty Trust Company of New York, as Administrative Agent
Re: Money Market Quote to USX Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, ____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________________
2. Person to contact at Quoting Lender:
________________________________
3. Date of Borrowing: ____________________/1/
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Money Market
Amount/2/ Interest Period/3/ [Margin]/4/ [Absolute Rate]/5/
$
$
_________________________
/1/ As specified in the related Invitation.
/2/ Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Each bid must be made for
$5,000,000 or a larger multiple of $1,000,000.
/3/ Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
/4/ Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000 of
1%) and specify whether "PLUS" or "MINUS".
/5/ Specify rate of interest per annum (to the nearest 1/10,000 of 1%).
[provided that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $____________.]
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Five-Year Credit
Agreement dated as of November 30, 2000 among the Borrower, the Lenders party
thereto and the Agents party thereto, irrevocably obligate(s) us to make the
Money Market Loan(s) for which such offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By: ____________________________________
Authorized Officer
D-2
EXHIBIT E
OPINION OF COUNSEL FOR THE BORROWER
[Effective Date]
To the Banks and the Agents
Referred to Below
c/o Morgan Guaranty Trust Company of New York,
as Administrative Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I am the General Counsel of USX Corporation, a Delaware corporation (the
"Borrower"). This opinion is being delivered pursuant to Section 3.01(c) of the
$1,353,750,000 Five-Year Credit Agreement dated as of November 30, 2000 among
the Borrower, the Lenders party thereto as listed on the signature pages
thereof, Bank of America, N.A. as Syndication Agent, Citibank, N.A., The Bank of
Nova Scotia and Commerzbank AG, as Documentation Agents, and Morgan Guaranty
Trust Company of New York, as Administrative Agent (the "Agreement").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed to them in the Agreement.
I have examined, or caused to be examined, originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as I have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to conduct its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Restated Certificate of Incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or result in the creation or imposition of
any Mortgage on any asset of the Borrower or any Subsidiary.
3. The Agreement constitutes a valid and binding agreement of the
Borrower and the Notes constitute valid and binding obligations of the Borrower,
in each case enforceable in accordance with its terms.
4. Except as set forth in the Borrower's 1999 Form 10-K and subsequent
quarterly reports on Form 10-Q filed by the Borrower with the SEC, there is no
action, suit, arbitration or other proceeding, inquiry or investigation, at law
or in equity, or before or by any court, public board or body, arbitrator or
arbitral body, pending against the Borrower or of which the Borrower has
otherwise received official notice or which to my knowledge is threatened
against the Borrower, wherein there is a reasonable possibility of an
unfavorable decision, ruling or finding which would materially adversely affect
the Borrower's ability to perform its obligations under the Agreement and the
Notes. Since the dates of the respective descriptions of proceedings contained
in the reports identified in the immediately preceding sentence there has been
no change in the status of such proceedings that would materially adversely
affect the Borrower's ability to perform its obligations under the Agreement and
the Notes.
The opinion set forth in paragraph 3 hereof is qualified by the effect of:
(i) bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally, (ii)
general principles of equity, and (iii) applicable rules of law which: (A) limit
or affect the enforcement of provisions of a contract that purport to require
waiver of the obligations of good faith, fair dealing, diligence and
reasonableness, (B) limit the availability of a remedy under certain
circumstances where another remedy has been elected, (C) limit the
enforceability of provisions releasing, exculpating, or exempting a party from,
or requiring indemnification of a party for, liability for its own action or
inaction, and (D) may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to circumstances in
which the unenforceable portion is not an essential part of the agreed exchange.
The foregoing opinion is limited to the laws of the Commonwealth of
Pennsylvania, the Federal laws of the United States of America and the General
Corporation Law of the State of Delaware. As the Agreement and the Notes are by
their terms governed by the laws of the State of New York, the foregoing opinion
should be understood to conclude that (i) a Pennsylvania court or a Federal
court sitting in Pennsylvania would give effect to the choice of New York law to
govern the Agreement and the Notes and (ii) under the internal laws of the
Commonwealth of Pennsylvania the Agreement constitutes a valid and binding
agreement of the Borrower and the Notes constitute valid and binding obligations
of the Borrower.
Very truly yours,
E-2
EXHIBIT F
OPINION OF DAVIS POLK & WARDWELL,
SPECIAL COUNSEL FOR THE ADMINISTRATIVE AGENT
[Effective Date]
To the Lenders and Agents
Referred to Below
c/o Morgan Guaranty Trust Company of New York,
as Administrative Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
We have participated in the preparation of the Five-Year Credit Agreement
dated as of November 30, 2000 (the "Credit Agreement") among USX Corporation, a
Delaware corporation (the "Borrower"), the Lenders party thereto, Bank of
America, N.A., as Syndication Agent, Citibank, N.A., The Bank of Nova Scotia and
Commerzbank AG, as Documentation Agents and Morgan Guaranty Trust Company of New
York, as Administrative Agent (the "Administrative Agent"), and have acted as
special counsel for the Administrative Agent for the purpose of rendering this
opinion pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes are within the Borrower's corporate powers and have been
duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of the
Borrower and each Note issued thereunder today constitutes a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and general principles of
equity.
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, the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction (except the State of New York) in
which any Lender is located which limits the rate of interest that such Lender
may charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by any other Person without our prior written consent.
Very truly yours,
F-2
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ________ __, ____ among [NAME OF ASSIGNOR] (the
"Assignor") and [NAME OF ASSIGNEE] (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Five-Year Credit Agreement dated as of November 30, 2000 (as amended from
time to time, the "Credit Agreement") among the USX Corporation, the Lenders
party thereto, Bank of America, N.A., as Syndication Agent, Citibank, N.A., The
Bank of Nova Scotia and Commerzbank AG, as Documentation Agents and Morgan
Guaranty Trust Company of New York, as Administrative Agent;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $____________;
WHEREAS, [Committed] Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of each of its outstanding [Committed]
Loans, and the Assignee proposes to accept such assignment and assume the
corresponding obligations of the Assignor under the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein
have the respective meanings set forth in the Credit Agreement.
Section 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount and a corresponding portion of each of its
outstanding [Committed] Loans, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount. Upon the execution and
delivery hereof by the Assignor and the Assignee [and the
execution of the consent attached hereto by the Borrower and the Administrative
Agent]/1/ and the payment of the amounts specified in Section 3 required to be
paid on the date hereof, (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Lender under the
Credit Agreement with a Commitment in an amount equal to the Assigned Amount and
acquire the rights of the Assignor with respect to a corresponding portion of
each of its outstanding [Committed] Loans and (ii) the Commitment of the
Assignor shall, as of the date hereof, be reduced by the Assigned Amount, and
the Assignor shall be released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.2 Fees
accrued before the date hereof with respect to amounts assigned to the Assignee
hereunder are for the account of the Assignor and such fees accruing on and
after the date hereof with respect to such amounts are for the account of the
Assignee. Each of the Assignor and the Assignee agrees that if it receives any
amount under the Credit Agreement which is for the account of the other party
hereto, it shall receive the same for the account of such other party to the
extent of such other party's interest therein and promptly pay the same to such
other party.
[Section 4. Consent of the Borrower, the Administrative Agent and each
Issuing Bank. This Agreement is conditioned upon the consent of the Borrower,
the Administrative Agent and each Issuing Bank pursuant to Section 9.06(b) of
the Credit Agreement./3/]
[Section 5. Note. The Borrower has agreed to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.]/4/
Section 6. No Reliance on Assignor. The Assignor represents and warrants
that it is the legal and beneficial owner of the interest being assigned hereby
and that such interest is free and clear of any other adverse claim created by
it. The Assignor makes no representation or warranty (other than that
____________________________
/1/ Delete if consent is not required.
/2/ Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically of by formula rather
than as a fixed sum.
/3/ Delete if consent is not required.
/4/ Delete if execution and delivery of a Note is not required.
G-2
mentioned immediately above) in connection with, and shall have no
responsibility with respect to, the solvency, financial condition or statements
of the Borrower, or the validity and enforceability of the Borrower's
obligations under the Credit Agreement or any Note. The Assignee acknowledges
that it has, independently and without reliance on the Assignor, and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
Section 7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Section 8. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By: _________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By: _________________________________
Name:
Title:
G-3
The undersigned consent to the foregoing assignment.
USX Corporation
By: _________________________________
Name:
Title:
Morgan Guaranty Trust Company of New
York, as Administrative Agent
By: _________________________________
Name:
Title:
G-4
EXHIBIT H
DESIGNATION AGREEMENT
dated as of ________________ __, _____
Reference is made to the Five-Year Credit Agreement dated as of November
30, 2000 (as amended from time to time, the "Credit Agreement") among USX
Corporation, a Delaware corporation (the "Borrower"), the Lenders party thereto,
Bank of America, N.A., as Syndication Agent, Citibank, N.A., The Bank of Nova
Scotia and Commerzbank AG, as Documentation Agents and Morgan Guaranty Trust
Company of New York, as Administrative Agent (the "Administrative Agent"). Terms
defined in the Credit Agreement are used herein with the same meaning.
_________________ (the "Designator") and ________________ (the "Designee")
agree as follows:
1. The Designator designates the Designee as its Designated Lender under
the Credit Agreement and the Designee accepts such designation.
2. The Designator makes no representations or warranties and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it is an Approved Fund; (ii) appoints
and authorizes the Designator as its administrative agent and attorney-in-fact
and grants the Designator an irrevocable power of attorney to receive payments
made for the benefit of the Designee under the Credit Agreement and to deliver
and receive all communications and notices under the Credit Agreement, if any,
that the Designee is obligated to deliver or has the right to receive
thereunder; (iii) acknowledges that the Designator retains the sole right and
responsibility to vote under the Credit Agreement, including, without
limitation, the right to approve any amendment or waiver of any provision of the
Credit Agreement; and (iv) agrees that the Designee shall be bound by all such
votes, approvals, amendments and waivers and all other agreements of the
Designator pursuant to or in connection with the Credit Agreement, all subject
to Section 9.05(b) of the Credit Agreement.
4. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements referred
to in Article 4 or delivered pursuant to Article 4 thereof and such other
documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement and (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designator
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action it may be permitted to take under the Credit Agreement.
5. Following the execution of this Designation Agreement by the
Designator and the Designee and the consent hereto by the Borrower, it will be
delivered to the Administrative Agent for its consent. This Designation
Agreement shall become effective when the Administrative Agent consents hereto
or on any later date specified on the signature page hereof.
6. Upon the effectiveness hereof, the Designee shall have the right to
make Loans or portions thereof as a Lender pursuant to Section 2.01 or 2.03 of
the Credit Agreement and the rights of a Lender related thereto. The making of
any such Loans or portions thereof by the Designee shall satisfy the obligations
of the Designator under the Credit Agreement to the same extent, and as if, such
Loans or portions thereof were made by the Designator.
7. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Designation Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Effective Date:______ __, ____
[NAME OF DESIGNATOR]
By: _________________________________
Name:
Title:
[NAME OF DESIGNEE]
By: _________________________________
Name:
Title:
H-2
The undersigned consent to the foregoing designation.
USX Corporation
By: _________________________________
Name:
Title:
Morgan Guaranty Trust Company of New
York, as Administrative Agent
By: _________________________________
Name:
Title:
H-3