EXECUTION COPY
3-YEAR REVOLVING CREDIT AGREEMENT
$250,000,000
DATED AS OF APRIL 2, 2004
AMONG
ASHLAND INC.
AS BORROWER,
THE BANK OF NOVA SCOTIA,
AS SOLE LEAD ARRANGER
AND
SOLE AND EXCLUSIVE BOOK MANAGER
SUNTRUST BANK
BANK ONE, N.A.,
AS CO-SYNDICATION AGENTS
THE ROYAL BANK OF SCOTLAND PLC,
AS DOCUMENTATION AGENT
THE BANK OF NOVA SCOTIA,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS SIGNATORY HERETO
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ARTICLE I
Definitions and Accounting
Matters.........................................................1
Section 1.01
Terms Defined
Above...............................................................1
Section 1.02
Certain Defined
Terms.............................................................1
Section 1.03
Accounting Terms and
Determinations..............................................13
ARTICLE II
Commitments...............................................................................13
Section 2.01
Loans............................................................................13
Section 2.02
Borrowings, Continuations and
Conversions........................................14
Section 2.03
Issuance Procedures, Participations, Disbursements and
Reimbursement.............15
Section 2.04
Changes of
Commitments...........................................................17
Section 2.05
Fees.............................................................................18
Section 2.06
Several
Obligations..............................................................18
Section 2.07
Notes............................................................................18
Section 2.08
Prepayments......................................................................19
Section 2.09
Lending
Offices..................................................................19
Section 2.10
[Reserved].......................................................................19
Section 2.11
Change in
Control................................................................19
ARTICLE III
Payments of Principal and
Interest........................................................20
Section 3.01
Repayment of
Loans...............................................................20
Section 3.02
Maturity of
Loans................................................................20
Section 3.03
Interest.........................................................................20
ARTICLE IV
Payments; Pro Rata Treatment; Computations;
Etc...........................................21
Section 4.01
Payments.........................................................................21
Section 4.02
Pro Rata
Treatment...............................................................22
Section 4.03
Computations.....................................................................22
Section 4.04
Non-receipt of Funds by the Administrative
Agent.................................22
Section 4.05
Set-off, Sharing of Payments,
Etc................................................23
Section 4.06
Taxes............................................................................24
ARTICLE V
Capital
Adequacy..........................................................................27
Section 5.01
Additional
Costs.................................................................27
Section 5.02
Limitation on Eurodollar
Loans...................................................28
Section 5.03
Illegality.......................................................................29
Section 5.04
Base Rate
Loans..................................................................29
Section 5.05
Compensation.....................................................................29
ARTICLE VI
Conditions
Precedent......................................................................30
Section 6.01
Closing and Initial
Funding......................................................30
Section 6.02
Initial and Subsequent Loans and Letters of
Credit...............................31
ARTICLE VII
Representations and
Warranties............................................................31
Section 7.01
Existence........................................................................31
Section 7.02
Financial
Condition..............................................................31
Section 7.03
Litigation.......................................................................32
Section 7.04
No
Breach........................................................................32
Section 7.05
Authority........................................................................32
Section 7.06
Approvals........................................................................32
Section 7.07
Use
of Loans and Letters of
Credit...............................................32
Section 7.08
ERISA............................................................................33
Section 7.09
Taxes............................................................................33
Section 7.10
No Material
Misstatements........................................................34
Section 7.11
Investment Company
Act...........................................................34
Section 7.12
Public Utility Holding Company
Act...............................................34
Section 7.13
Defaults.........................................................................34
Section 7.14
Environmental
Matters............................................................34
Section 7.15
Insurance........................................................................35
Section 7.16
Reportable
Transaction...........................................................35
ARTICLE VIII
Affirmative
Covenants.....................................................................35
Section 8.01
Reporting
Requirements...........................................................36
Section 8.02
Litigation.......................................................................37
Section 8.03
Maintenance,
Etc.................................................................37
Section 8.04
Further
Assurances...............................................................37
Section 8.05
Performance of
Obligations.......................................................38
Section 8.06
ERISA Information and
Compliance.................................................38
Section 8.07
Compliance with
Laws.............................................................38
Section 8.08
Payment of
Taxes.................................................................39
ARTICLE IX
Negative
Covenants........................................................................39
Section 9.01
Liens............................................................................39
Section 9.02
Sales and
Leasebacks.............................................................40
Section 9.03
Mergers,
Etc.....................................................................41
Section 9.04
Proceeds of
Notes................................................................41
Section 9.05
ERISA
Compliance.................................................................41
Section 9.06
Leverage
Ratio...................................................................42
Section 9.07
Transactions with
Affiliates.....................................................42
ARTICLE X
Events of Default;
Remedies...............................................................42
Section 10.01
Events of
Default................................................................42
Section 10.02
Remedies.........................................................................44
ARTICLE XI
The Administrative
Agent..................................................................45
Section 11.01
Appointment, Powers and
Immunities...............................................45
Section 11.02
Reliance by Administrative
Agent.................................................45
Section 11.03
Defaults.........................................................................45
Section 11.04
Rights as a
Lender...............................................................46
Section 11.05
Indemnification..................................................................46
Section 11.06
Non-Reliance on Administrative Agent and other
Lenders...........................46
Section 11.07
Action by Administrative
Agent...................................................47
Section 11.08
Resignation of Administrative
Agent..............................................47
ARTICLE XII
Miscellaneous.............................................................................48
Section 12.01
Waiver...........................................................................48
Section 12.02
Notices..........................................................................48
Section 12.03
Expenses; Indemnity; Damage
Waiver...............................................48
Section 12.04
Amendments,
Etc..................................................................50
Section 12.05
Successors and
Assigns...........................................................50
Section 12.06
Assignments and
Participations...................................................50
Section 12.07
Invalidity.......................................................................52
Section 12.08
Counterparts.....................................................................52
Section 12.09
References.......................................................................52
Section 12.10
Survival.........................................................................53
Section 12.11
Captions.........................................................................53
Section 12.12
No Oral
Agreements...............................................................53
Section 12.13
Governing Law; Submission to
Jurisdiction........................................53
Section 12.14
Interest.........................................................................54
Section 12.15
Confidentiality..................................................................55
Section 12.16
Effectiveness....................................................................56
Section 12.17
Termination of Existing
Agreement................................................56
Section 12.18
MAP
Disposition..................................................................56
Section 12.19
USA Patriot
Act..................................................................57
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ANNEX, EXHIBITS AND SCHEDULES:
Annex 1
List of Commitments
Exhibit A-1
Form of Note
Exhibit A-2
[Reserved]
Exhibit B-1
Form of Borrowing, Continuation and Conversion Request
Exhibit B-2
Form of Issuance Request
Exhibit C
Form of Compliance Certificate
Exhibit D
Form of Legal Opinion
Exhibit E
Form of Assignment Agreement
Exhibit F-1
[Reserved]
Exhibit F-2
[Reserved]
Exhibit G
[Reserved]
Exhibit H
[Reserved]
Schedule 7.03
Litigation
Schedule 7.08
Multiemployer Plans
Schedule 7.09
Taxes
Schedule 7.14
Environmental Matters
<PAGE>
2
This 3-YEAR REVOLVING CREDIT AGREEMENT, dated as of April 2,
2004,
is among ASHLAND INC., a corporation formed under the laws of the
Commonwealth of Kentucky (the "Borrower"); each of the lenders that is a
signatory hereto or which becomes a
signatory hereto as provided in Section
12.06 (individually, together with its successors and
assigns, a "Lender"
and, collectively, the "Lenders"); SUNTRUST BANK and BANK ONE, N.A.,
collectively, as co-syndication agents for the Lenders; THE ROYAL
BANK OF
SCOTLAND PLC, as documentation agent for
the Lenders; and THE
BANK OF NOVA
SCOTIA (in its individual capacity, "Scotia Capital"), as the
administrative agent (for the Lenders (in
such capacity,
together with its
successors in such capacity, the
"Administrative Agent") for the Lenders.
R E C I T A L S
A........The Borrower
has requested that the Lenders and the
Issuers provide certain loans and issue certain
letters of credit to
the
Borrower;
B........The Lenders
and the Issuers have agreed to make such
loans and issue such letters of credit
subject to the terms
and conditions
of this Agreement; and
C........In
consideration of the
mutual covenants and agreements
herein contained and of the loans and
commitments
hereinafter referred to,
the parties hereto agree as follows:
ARTICLE I.........
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01......Terms Defined Above. As
used in this Agreement, the terms
"Administrative Agent," "Borrower," "Lender," "Lenders," and "Scotia
Capital" shall have the meanings indicated
above.
Section 1.02......Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in
this Article
I or in other provisions of this Agreement
in the singular to have the same
meanings when used in the plural and vice
versa):
"Additional Costs"
shall have the meaning
assigned such term
in
Section 5.01(a).
"Affected Loans"
shall have the
meaning assigned such term in
Section 5.04.
"Affiliate" of any
Person shall mean any Person directly or
indirectly Owned by, Owning or under common Ownership with such first
Person. For purposes of this definition,
any Person which owns
directly or
indirectly 25% or more of the securities
having ordinary voting power for
the election of directors or other
governing body of a corporation or 25%
or more of the partnership or other
ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
"Own" (including, with its correlative meanings, "Owned by" and "under
common Ownership with") such corporation or
other Person.
"Aggregate
Commitments" at any
time shall
equal the sum of
the
Commitments of the Lenders ($250,000,000,
as of the Effective Date), as the
same may be reduced pursuant to Section
2.04(a).
"Agreement" shall mean this 3-Year Revolving Credit Agreement,
as
the same may from time to time be amended
or supplemented.
"Alternate Base Rate"
means, for any day, a
rate per annum equal
to the greater of (a) the Prime Rate in effect on such day, or (b) the
Federal Funds Rate in effect on such day
plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds
Effective Rate shall be effective from and
including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Lending
Office" shall mean,
for each Lender and
for
each Type of Loan, the lending office of such Lender (or an
Affiliate of
such Lender) designated for such Type of
Loan on the signature pages hereof
or such other offices of such Lender (or of
an Affiliate of such Lender) as
such Lender may from time to time specify
to the Administrative
Agent and
the Borrower as the office by which its Loans
of such Type are to be made
and maintained.
"Applicable Margin" shall mean, for any day, (a) zero percent
(0%)
per annum with respect to Base Rate Loans and (b) with respect to
Eurodollar Loans, the applicable rate per
annum set forth below, based upon
(i) the ratings by Moody's and S&P,
respectively, applicable on such day to
the Index Debt and (ii) the percentage of
the Aggregate
Commitments drawn
on such day (it being understood and agreed that the then current
Applicable Margin, together with the then
applicable Eurodollar Rate, shall
accrue and be payable on and with respect
to the total principal
amount of
all Eurodollar Loans then outstanding):
----------------------
-----------------------------------------------------
PERCENTAGE OF AGGREGATE COMMITMENTS DRAWN
----------------------
-----------------------------------------------------
INDEX DEBT:
<33%
>33% AND <67%
>67%
Category 1
0.500%
0.625%
0.750%
Category 2
0.625%
0.750%
0.875%
Category 3
0.750%
0.875%
1.000%
Category 4
1.000%
1.125%
1.250%
Category 5
1.500%
1.625%
1.750%
For purposes of the foregoing and for
purposes of
calculating the
Standby
Fee and the Letter of Credit Fee, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence
of this definition),
then
such rating agency shall be deemed to have
established a rating in Category
5; (ii) if the ratings established or deemed to have been
established by
Moody's and S&P for the Index Debt
shall fall within different Categories,
the Applicable Margin shall be based on the higher of the two ratings;
(iii) if more than one Category falls
between the rating levels established
or deemed to have been established by Moody's and S&P for the
Index Debt,
the Applicable Margin shall be based on the Category above the lowest
rating; (iv) if the ratings established or
deemed to have been established
by Moody's and S&P for the Index Debt
shall be changed
(other than as a
result of a change in the rating
system of Moody's
or S&P),
such change
shall be effective as of the earlier of the (1) date
on which it is first
announced by the applicable rating agency and (2) the date on which
Borrower gives notice of such change to the
Administrative Agent;
and (iv)
initially, the Applicable Margin shall be
determined based upon a Category
3 Index Debt rating. For the purposes
hereof, Borrower shall be required to
notify the Administrative Agent of such change immediately upon gaining
knowledge of such change. Each change in the Applicable
Margin shall apply
during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next
such change. If the rating system of Moody's or S&P shall
change, or if
either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower
and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed
rating system
or the unavailability of ratings from such rating agency
and, pending the
effectiveness of any such amendment, the Applicable Margin shall be
determined by reference to the rating most
recently in effect prior to such
change or cessation.
"Assignment" shall
have the meaning assigned such term in Section
12.06(b).
"Authorized Officer" means, relative to the Borrower, those of
its
officers, general partners or managing members (as applicable) whose
signatures and incumbency shall have been certified to the
Administrative
Agent, the Lenders and the Issuers pursuant to Section 6.01(ii), or
otherwise designated as Authorized Officers
for purposes of this Agreement
in resolutions of the Borrower's board of
directors.
"Availability Period" shall mean the period from and including
the
Effective Date to but excluding the
Termination Date.
"Base Rate Loans"
shall mean Loans that
bear interest
at rates
based upon the Alternate Base Rate.
"Board" shall have the meaning assigned such term in Section
2.11.
"Business Day"
shall mean any day other than a day on which
commercial banks are authorized or required
to close in New York City and,
where such term is used in the definition of "Quarterly Date" or if such
day relates to a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or a
conversion
of or into,
or the Interest
Period for, a Eurodollar Loan or a notice by the Borrower
with respect to
any such borrowing or continuation, payment, prepayment, conversion or
Interest Period, any day which is also a day on
which dealings in
Dollar
deposits are carried out in the London
interbank market.
"Cash Collateralize"
means, with respect to a Letter of
Credit,
the deposit of immediately available funds into a cash
collateral account
maintained with (or on behalf of) the Administrative Agent on terms
satisfactory to the Administrative Agent in an amount equal to the
Stated
Amount of such Letter of Credit.
"Category 1"
means A- or higher by S&P and A3 or higher by
Moody's.
"Category 2" means BBB+ by S&P and Baa1 by Moody's.
"Category 3" means BBB by S&P and Baa2 by Moody's.
"Category 4" means BBB- by S&P and Baa3 by Moody's.
"Category 5" means
lower than BBB- by
S&P and lower than Baa3 by
Moody's.
"Change in Control"
shall have the
meaning set forth in
Section
2.11.
"Closing Date" shall mean April 2, 2004.
"Code" shall mean the
Internal Revenue Code
of 1986, as
amended
from time to time and any successor
statute.
"Commitment" shall
mean, for any Lender,
its obligation to
make
Committed Loans or participate in Letters
of Credit up to the amount of the
Commitment for such Lender on Annex 1
hereto, as modified from time to time
to reflect any adjustments permitted or
required hereby.
"Committed Loan" shall mean a Revolving Loan.
"Consolidated" refers
to the consolidation
in accordance with
generally accepted accounting principles of the accounts of the
Borrower
and those of its Subsidiaries which are Consolidated in accordance with
GAAP.
"Consolidated
Subsidiaries" shall
mean each Subsidiary of the
Borrower (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or
should have been)
Consolidated
with the financial statements of the
Borrower in accordance with GAAP.
"Contingent
Liability" means
any agreement, undertaking or
arrangement by which any Person
guarantees,
endorses or otherwise
becomes
or is contingently liable upon (by direct
or indirect agreement, contingent
or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or
otherwise to assure a creditor against
loss) the Indebtedness of any other Person (other than by
endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the capital securities of any
other
Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation
set forth therein) be deemed to
be the outstanding principal amount of the debt, obligation or other
liability guaranteed thereby.
"Control" means the
possession,
directly or
indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise
voting power, by contract
or otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Debt" shall
mean, for any Person the sum of the following
(without duplication): (i) all obligations of such Person for borrowed
money or evidenced by bonds, commercial
paper, debentures,
notes or other
similar instruments; (ii) all obligations of such Person (whether
contingent or otherwise) in respect of
bankers' acceptances,
reimbursement
obligations for amounts paid under letters
of credit, surety or other bonds
and similar instruments; (iii) all obligations of such Person to pay
the
deferred purchase price of Property or services
(other than for
borrowed
money); (iv) all obligations under leases
which shall have been, or should
have been, in accordance with GAAP, recorded as capital leases in
respect
of which such Person is liable (whether
contingent or
otherwise); (v)
all
Debt (as described in the other clauses of this definition) and other
obligations of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person; (vi) all Debt (as
described in the other clauses of this
definition) and other obligations of
others guaranteed by such Person or in
which such Person otherwise assures
a creditor against loss of the debtor or
obligations of others;
(vii) all
obligations or undertakings of such Person to maintain or cause to be
maintained the financial position or
covenants of others or to purchase the
Debt or Property of others; (viii)
obligations to pay for goods or services
whether or not such goods or services are
actually received or
utilized by
such Person such as "take or pay," "through-put" or "deficiency"
agreements; (ix) any capital stock of such
Person in which such Person has
a mandatory obligation to redeem such stock; (x) any Debt of a Special
Entity for which such Person is liable
either by agreement or
because of a
Governmental Requirement. Notwithstanding the foregoing, Debt shall not
include (1) trade payables incurred in the ordinary
course of business
or
any obligation set forth in (v), (vi),
(vii), (viii), (ix) or (x) above
which would not be required to be disclosed in an audited Consolidated
balance sheet of the Borrower and its
Subsidiaries or in the
notes thereto
as being immaterial, and (2) accrued interest,
fees and charges which
are
not past due.
"Default" shall mean
an Event of Default or
an event which
with
notice or lapse of time or both would,
unless cured or waived, become an
Event of Default.
"Disbursement" is defined in Section 2.03(c).
"Disbursement Date" is defined in Section 2.03(c).
"Documentary Letter of
Credit" means a letter of credit issued to
support the payment of goods and services
used in the Borrower's business.
"Dollars" and "$"
shall mean lawful money of the United States of
America.
"Effective Date"
shall have the
meaning assigned such term in
Section 12.16.
"Eligible Assignee"
means (a) a commercial
bank organized
under
the laws of the United States, or any state
thereto, and having a
combined
capital and surplus of at least
$100,000,000 at the
time any assignment is
made pursuant to Section 12.06;
(b) a commercial
bank organized under
the
laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country,
and having a combined
capital and surplus
of at least $100,000,000 at the time any assignment is made pursuant to
Section 12.06 provided that such bank is acting
through a branch or agency
located in the country in which it is
organized or another country which is
also a member of the OECD; and (c) a Person that is
primarily engaged in
the business of commercial lending and that is (i) a
Subsidiary of a Bank,
(ii) a Subsidiary of a Person of which a
Bank is a Subsidiary,
or (iii) a
Person of which a Bank is a Subsidiary;
provided that any Eligible Assignee
must have a minimum senior unsecured credit rating of at least BBB by
S&P
and Baa2 by Moody's.
"Environmental
Laws" shall
mean any and all Governmental
Requirements pertaining to health or the
environment in effect
in any and
all jurisdictions in which the
Borrower or any Subsidiary is conducting or
at any time has conducted business, or where any Property of the
Borrower
or any Subsidiary is located, including without limitation, the Oil
Pollution Act of 1990 ("OPA"), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act
of
1980 ("CERCLA"), as amended, the Federal Water Pollution
Control Act, as
amended, the Occupational Safety and Health Act of 1970, as
amended, the
Resource Conservation and Recovery Act of
1976 ("RCRA"), as
amended, the
Safe Drinking Water Act, as amended,
the Toxic Substances
Control Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials
Transportation Act, as
amended, and other
environmental conservation or protection laws. The term "oil" shall
have
the meaning specified in OPA, the terms
"hazardous substance" and "release"
(or "threatened release") have the meanings
specified in CERCLA,
and the
terms "solid waste" and "disposal" (or "disposed") have the meanings
specified in RCRA; provided, however, that (i) in the event either
OPA,
CERCLA or RCRA is amended so as to broaden
the meaning of any term defined
thereby, such broader meaning shall apply
subsequent to the effective date
of such amendment and (ii) to the extent
the applicable
laws of the state
in which any Property of the Borrower or any Subsidiary is located
establish a meaning for "oil," "hazardous substance," "release," "solid
waste" or "disposal" which is broader than that
specified in either
OPA,
CERCLA or RCRA, such broader meaning shall
apply.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time and any
successor statute.
"ERISA Affiliate"
shall mean each trade
or business (whether
or
not incorporated) which together with the Borrower
or any Subsidiary would
be deemed to be a "single employer" within the meaning of section
4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section
414 of
the Code.
"ERISA Event" shall
mean (i) a "Reportable
Event" described in
Section 4043 of ERISA and the regulations issued thereunder, (ii) the
withdrawal of the Borrower, any Subsidiary or any ERISA
Affiliate from a
Plan during a plan year in which it was a
"substantial employer" as defined
in Section 4001(a)(2) of ERISA, (iii) the filing of a notice of
intent to
terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, (iv) the institution of proceedings to
terminate a Plan by the PBGC or (v) any
other event or condition which
might constitute grounds under Section 4042 of
ERISA for the
termination
of, or the appointment of a trustee to
administer, any Plan.
"Eurodollar Loans"
shall mean Loans the
interest rates on
which
are determined on the basis of rates referred to in the definition of
"Eurodollar Rate".
"Eurodollar Rate"
shall mean,
for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or
any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two
Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not
available,
the term
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum
(rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in
Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of
such Interest
Period for a term comparable to such
Interest Period; provided, however, if
more than one rate is specified on Reuters
Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all
such rates.
"Event of Default"
shall have the meaning
assigned such term
in
Section 10.01.
"Excess Margin Stock" shall mean that amount by which the value
of
all Margin Stock owned by the Borrower and
its Subsidiaries
exceeds 25% of
the value of all of the Property owned by
the Borrower and its Subsidiaries
subject to Section 9.01.
"Exchange Act"
shall have the meaning assigned such term in
Section 9.04.
"Existing Agreement"
shall mean that
certain $250 Million 5-Year
Revolving Credit Agreement, dated as of June 2, 1999, among
the Borrower
and the Existing Lenders.
"Existing Lenders"
shall mean the lenders under the Existing
Agreement.
"Federal Funds Rate"
shall mean, for any
day, the rate set forth
in the weekly statistical release
designated as H.15(519), or any successor
publication as published by the Federal Reserve Bank of New York on
the
preceding Business Day opposite the caption
"Federal Funds
(Effective)",
provided that (i) if the date for which
such rate is to be
determined is
not a Business Day, the Federal Funds Rate for
such day shall be such rate
on such transactions published on the next
preceding Business Day, and (ii)
if such rate is not so published
for any day,
the Federal
Funds Rate for
such day shall be the average rate charged
to the Administrative
Agent on
such day on such transactions as determined
by the Administrative Agent.
"Fee Letter" shall
mean that certain
letter agreement
from the
Administrative Agent to the Borrower dated as of February 19, 2004
concerning certain fees in connection with this Agreement and any
agreements or instruments executed in
connection therewith, as the same may
be amended or replaced from time to
time.
"Financial Officer"
shall mean the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
Unless otherwise specified, all references to a Financial
Officer herein
shall mean a Financial Officer of the
Borrower.
"Financial Statements"
shall mean the Consolidated financial
statement or statements of the Borrower and
its Subsidiaries
described or
referred to in Section 7.02, including the
notes attached thereto.
"Fronting Fee" has the meaning specified in Section 2.05(b).
"Funded Debt" has the meaning specified in Section 9.02.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from
time to time.
"Governmental
Authority" shall
include the country,
the state,
county, city and political subdivisions in which any Person or such
Person's Property is located or which
exercises valid jurisdiction over any
such Person or such Person's Property,
and any court, agency,
department,
commission, board, bureau or instrumentality of any of them including
monetary authorities which exercises valid jurisdiction over any such
Person or such Person's Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental
Authority having jurisdiction over, where applicable,
the Borrower,
the
Subsidiaries or any of their Property or the Administrative Agent, any
Lender or any Applicable Lending
Office.
"Governmental
Requirement" shall
mean any law,
statute, code,
ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate,
license, authorization or other
directive or requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy
regulations and
occupational, safety and health standards or
controls, of any Governmental
Authority.
"Granting Lender" has the meaning specified in Section
12.06(g).
"Hedging Agreement"
shall mean any commodity agreement or option
with respect to any commodity agreement
(other than sales contracts entered
into in the normal course of business and not as a hedging vehicle) or
interest rate or currency swap, cap, floor,
collar, forward agreement or
other exchange or protection agreements or any option with
respect to such
transactions.
"Highest Lawful Rate" shall mean, with respect to each Lender,
the
maximum nonusurious interest rate, if any,
that at any time or from time to
time may be contracted for, taken, reserved, charged or received on the
Notes or on other Indebtedness under laws applicable to such
Lender which
are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which
allow a higher
maximum nonusurious interest rate than
applicable laws now allow.
"Indebtedness" shall mean any and all amounts owing or to be
owing
by the Borrower to the Administrative Agent and the Lenders in
connection
with this Agreement, the Notes and any Letter of Credit
Outstandings
and
all renewals, extensions and/or
rearrangements of any of the above.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not
guaranteed by any
other Person
or subject to any other credit
enhancement.
"Initial Funding"
shall mean the
funding of the
initial Loans
pursuant to Section 6.01 hereof.
"Interest Period"
shall mean, (i) with
respect to any Eurodollar
Loan, the period commencing on the date such
Eurodollar
Loan is made and
ending on the numerically corresponding day in the first,
second, third or
sixth calendar month thereafter,
as the Borrower may
select as provided in
Section 2.02 (or such longer period as may
be requested by the Borrower and
agreed to by all Lenders); and (ii) with
respect to any Base Rate Loan, the
period commencing on the date such Loan is made and ending 90 days
thereafter, except that each Interest
Period which
commences on the
last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the
appropriate subsequent calendar month)
shall end on the last Business Day of the
appropriate subsequent
calendar
month.
Notwithstanding the foregoing: (i) no Interest Period may
commence
before and end after the Termination
Date; (ii) each
Interest Period which
would otherwise end on a day which is not a
Business Day shall end on the
next succeeding Business Day (or, if such next succeeding Business Day
falls in the next succeeding calendar
month, on the next preceding Business
Day); and (iii) no Interest Period shall have a duration of
less than one
month and, if the Interest Period for any
Eurodollar Loans would
otherwise
be for a shorter period, such Loans shall
not be available hereunder.
"Issuance
Request" means
a Letter of Credit request and
certificate duly executed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit B-2
hereto.
"Issuer" means
the Administrative Agent or any other Lender,
subject to the approval of the
Borrower.
"Lending Office"
shall
mean
the lending office of the
Administrative Agent, presently located at
One Liberty Plaza, New York, New
York 10006, or such other location as designated by the Administrative
Agent from time to time.
"Letter of Credit" means collectively, Standby Letters of Credit
and Documentary Letters of Credit.
"Letter of Credit
Commitment" means an
Issuer's obligation to
issue Letters of Credit pursuant to Section
2.01(b).
"Letter of Credit Commitment Amount" means, on any date, a
maximum
amount of $250,000,000 as such amount may
be permanently reduced
from time
to time pursuant to Section 2.03.
"Letter of Credit Fee" is defined in clause (c) of Section
2.05.
"Letter of Credit
Outstandings"
means, on any date, an amount
equal to the sum of (i) the then
aggregate amount which is undrawn and
available under all issued and outstanding
Letters of Credit, and
(ii) the
then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
"Lien" shall mean any interest in Property securing an obligation
owed to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the
common law, statute or contract, and
whether such obligation or claim is fixed
or contingent, and
including but
not limited to the lien or
security interest arising from a mortgage,
encumbrance, pledge, security agreement,
conditional sale or trust receipt
or a lease, consignment or bailment for
security purposes.
"Loans" shall mean the loans as provided for by Sections
2.01(a).
Loans may be Committed Loans which may be Base Rate Loans or
Eurodollar
Loans.
"Majority Lenders"
shall mean, at any time while no Loans are
outstanding, Lenders having in excess of fifty percent (50%) of the
Aggregate Commitments and, at any time
while Loans are outstanding, Lenders
holding in excess of percent (50%) of the
outstanding aggregate
principal
amount of the Loans (without regard to any sale by a Lender of a
participation in any Loan under Section
12.06(c)).
"MAP" shall mean Marathon Ashland Petroleum L.L.C.
"Margin Stock" shall have the meaning set forth in Regulation U
of
the Board of Governors of the Federal Reserve System as the same may be
amended or interpreted from time to
time.
"Material Adverse
Effect" shall mean a material adverse change in
the financial position or results of
operations
of the Borrower and
its
Subsidiaries taken as a whole.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
section 3(37) or 4001 (a)(3) of ERISA
which is, or within the six calendar
years preceding this Agreement was, contributed to by the Borrower, a
Subsidiary or an ERISA Affiliate.
"Notes" shall
mean the Notes provided for by Section 2.07,
together with any and all renewals, increases, rearrangements,
substitutions or modifications thereof.
"Other Taxes" shall have the meaning assigned such term in
Section
4.06(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its
functions.
"Pension Plan" means a
Plan subject to the provisions of Title IV
of ERISA and Section 412 of the Code or
Section 302 of ERISA.
"Percentage Share"
shall mean the
percentage
of the Aggregate
Commitments to be provided by a Lender
under this Agreement as indicated on
Annex 1 hereto, as modified from time to time to reflect any
adjustments
permitted or required hereby.
"Person" shall
mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government or any agency, instrumentality or political
subdivision thereof, or any other form of entity except as otherwise
defined in Section 2.11 hereof.
"Plan" shall mean any employee pension benefit plan, as defined
in
Section 3(2) of ERISA, which (i) is currently or hereafter sponsored,
maintained or contributed to by the Borrower, any Subsidiary or an ERISA
Affiliate or (ii) was at any time during
the preceding six
calendar years
sponsored, maintained or contributed to, by
the Borrower, any Subsidiary or
an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of
any
Loan or any other amount payable by the Borrower
under this
Agreement or
the Notes, a rate per annum during the period commencing on the date of
occurrence of an Event of Default until such
amount is paid in full or all
Events of Default are cured or waived
equal to 2% per annum
above the rate
of interest in effect from time to time
including the Applicable Margin (if
any), but in no event to exceed the Highest
Lawful Rate; provided, however,
for a Eurodollar Loan, the "Post-Default
Rate" for such principal shall be,
for the period commencing on the date of
occurrence of an Event of Default
and ending on the earlier to occur of the
last day of the
Interest Period
therefor or the date all Events of Default are cured or waived, 2% per
annum above the interest rate for such Loan as provided in Section
3.03(a)(ii), but in no event to exceed the
Highest Lawful Rate.
"Prime Rate" shall
mean at any time, the
rate of interest
then
most recently established by the Administrative Agent in New York as its
base rate for Dollars loaned in the United
States. Such rate is
set by the
Administrative Agent as a general prime rate of interest, taking into
account such factors as the Administrative
Agent may deem
appropriate, it
being understood that many of the Administrative Agent's commercial or
other loans are priced in relation to such
rate, that it is not necessarily
the lowest or best rate actually charged to any customer and that the
Administrative Agent may make various
commercial or other loans at rates of
interest having no relationship to such
rate.
"Property" shall mean
any interest
in any kind of
property or
asset, whether real, personal or mixed, or
tangible or intangible.
"Quarterly Dates"
shall mean the last
day of each March,
June,
September, and December, in each year, the
first of which shall be June 30,
2004; provided, however, that if any such day is not a
Business Day, such
Quarterly Date shall be the next succeeding
Business Day.
"Regulation D" shall
mean Regulation D of
the Board of Governors
of the Federal Reserve System (or any successor), as the same may be
amended or supplemented from time to
time.
"Regulatory Change"
shall mean, with
respect to any Lender,
any
change after the Closing Date in any
Governmental
Requirement
(including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders
(including such Lender or its Applicable
Lending Office) of or under any
Governmental Requirement (whether or not having the force of law) by
any
Governmental Authority charged with the interpretation or
administration
thereof.
"Reimbursement Obligation" is defined in Section 2.03(d).
"Required Payment"
shall have the meaning
assigned such term
in
Section 4.04.
"Revolving
Loan" shall mean a Loan made pursuant to Section
2.01(a).
"SEC" shall mean the
Securities and
Exchange Commission
or any
successor Governmental Authority.
"SPC" has the meaning specified in Section 12.06(g).
"Special Entity" shall mean any joint venture, limited liability
company or partnership, general or limited
partnership or any other type of
partnership or company, other than a
corporation, in which
the Borrower or
one or more of its other Subsidiaries is a
member, owner, partner
or joint
venturer and owns, directly or indirectly, at least a majority of the
equity of such entity, but excluding any tax partnerships that are not
classified as partnerships under state
law.
"Standby Fee" shall mean, the applicable rate per annum set forth
below based upon the ratings by Moody's and
S&P, respectively,
applicable
on such date to the Index Debt:
<PAGE>
INDEX DEBT
STANDBY FEE
Category 1
0.125%
Category 2
0.150%
Category 3
0.175%
Category 4
0.225%
Category 5
0.400%
"Standby Letter of
Credit" means a letter of credit issued to
support payment, when due or after default,
of obligations based
on money
loaned or advanced, or upon the occurrence or non-occurrence of another
contingency.
"Stated Amount"
means, on any date and with respect to a
particular Letter of Credit, the total amount then available to be drawn
under such Letter of Credit.
"Stated Expiry Date" is defined in Section 2.03(a).
"Stockholder's Equity"
shall mean the common stockholders' equity
of Borrower and its Subsidiaries on a Consolidated basis (in the
calculation of which the book value of any
treasury shares
carried as an
asset shall be deducted).
"Subsidiary" means,
with respect to any
Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be
consolidated
with those of the parent in the parent's
consolidated financial
statements
if such financial statements were prepared in accordance
with GAAP as of
such date, as well as any other
corporation,
limited liability company,
partnership, association or other entity (a) of
which securities or
other
ownership interests representing more than 50% of the
equity or more than
50% of the ordinary voting power or, in the case of a
partnership,
more
than 50% of the general partnership
interests are, as of
such date, owned,
controlled or held, or (b) that is, as of
such date, otherwise
Controlled,
by the parent or one or more Subsidiaries of the parent or by the parent
and one or more Subsidiaries of the parent. Unless otherwise indicated
herein, each reference to the term
"Subsidiary" shall mean a Subsidiary of
the Borrower. Notwithstanding the foregoing,
MAP will not be
considered a
Subsidiary of the Borrower.
"Substantial
Subsidiary"
shall mean,
at the time of any
determination thereof, any Subsidiary which as of such time meets the
definition of "significant subsidiary" contained in Regulation S-X of
the
SEC (as amended from time to time), so long as it is a Subsidiary, but
whether or not it otherwise meets such definition, Ashland Paving and
Construction, Inc.
"Taxes" shall
have the meaning assigned such term in Section
4.06(a).
"Termination Date"
shall mean March 11, 2007 unless the Aggregate
Commitments are sooner terminated (or Cash Collaterized) pursuant to
Section 2.04(a) or 10.2 hereof.
"Type" shall mean, with respect to any Loan, a Base Rate Loan or
a
Eurodollar Loan.
"Unfunded Pension
Liability" means the excess of a Pension Plan's
accumulated benefit obligations under Financial
Accounting
Standard 87,
determined in accordance with the assumptions used by the Plan's actuary
for funding the Pension Plan pursuant to Section 412 of the
Code for the
applicable plan year, over the current
value of that Pension Plan's assets.
Section 1.03......Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be
interpreted,
all determinations with respect to accounting
matters hereunder
shall be
made, and all financial statements and certificates and reports as to
financial matters required to be furnished
to the Administrative
Agent or
the Lenders hereunder shall be prepared,
in accordance with
GAAP, applied
on a basis consistent with the audited
financial statements of the Borrower
referred to in Section 7.02 (except for changes concurred with by the
Borrower's independent public
accountants).
ARTICLE II........
COMMITMENTS
Section 2.01......Loans.
(a) Revolving Loans. Each Lender severally agrees, on the terms of this
Agreement, to make revolving loans (herein
called "Revolving Loans") to the
Borrower during the period from and
including (i) the
Effective Date or
(ii) such later date that such Lender
becomes a party to this Agreement, to
but excluding, the Termination Date in an
aggregate principal amount at any
one time outstanding up to but not exceeding the amount of such
Lender's
Commitment as then in effect; provided, however, that the aggregate
principal amount of all Loans and Letter of Credit Outstandings by all
Lenders hereunder at any one time outstanding shall not exceed the
Aggregate Commitments. Subject to the terms of this
Agreement, during
the
period from the Effective Date to but
excluding, the
Termination Date, the
Borrower may borrow, repay and reborrow the amount described in this
Section 2.01(a).
(b) Letter of Credit Commitment. From time to time on any
Business Day
occurring from the Effective Date but no
later than three (3) days prior to
the Termination Date, the relevant Issuer
agrees that it will:
(i) issue one or more Standby Letters of Credit or
Documentary Letters of
Credit for the account of the Borrower in
the Stated Amount requested by the Borrower on such day; or
(ii) extend the Stated Expiry Date of an existing Standby
Letter of Credit previously issued hereunder.
No Issuer shall be permitted or required to
issue any Letter of Credit if,
after giving effect thereto, (i) the aggregate amount of all Letter of
Credit Outstandings would exceed the
Letter of Credit Commitment Amount or
(ii) the sum of the aggregate amount of all Letter of Credit
Outstandings
plus the aggregate principal amount of all Loans then
outstanding
would
exceed the Aggregate Commitments.
(c) Limitation on Types of Loans. Subject
to the other terms and provisions
of this Agreement, at the option of the Borrower,
the Committed Loans
may
be Base Rate Loans or Eurodollar
Loans; provided that, without the prior
written consent of the Majority
Lenders, with respect to Committed
Loans,
no more than five (5) Eurodollar Loans may be outstanding at any time to
any Lender.
Section 2.02......Borrowings, Continuations
and Conversions.
(a) Borrowings. The Borrower shall give the
Administrative
Agent (which
shall promptly notify the Lenders)
advance notice as
hereinafter
provided
of each borrowing of Committed
Loans hereunder, which shall specify the
aggregate amount of such borrowing, the
Type and the date (which shall be a
Business Day) of such Loans to be borrowed
and (in the case of
Eurodollar
Loans) the duration of the Interest Period
therefor.
(b) Minimum Amounts. If the initial borrowing consists
in whole or in part
of Eurodollar Loans, such Eurodollar Loans shall
be in amounts of at least
$5,000,000 or any whole multiple of
$1,000,000 in excess thereof.
(c) Notices. All Committed Loan borrowings,
continuations and
conversions
require advance written notice to the Administrative Agent (which shall
promptly notify the Lenders) in the form of Exhibit
B-1 (or telephonic
notice promptly confirmed by such a written
notice), which in each case
shall be irrevocable, from the Borrower to be received by the
Administrative Agent not later than 11:00 a.m. New York City time on the
Business Day of each Base Rate Loan
borrowing and three Business Days prior
to the date of each Eurodollar Loan
borrowing,
continuation or conversion.
Without in any way limiting the Borrower's
obligation to confirm in writing
any telephonic notice, the Administrative Agent may act without
liability
upon the basis of telephonic notice
believed by the Administrative Agent in
good faith to be from the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's record of the terms of
such telephonic
notice except in the case of gross
negligence or willful
misconduct by the
Administrative Agent.
(d) Continuation Options. Subject to the provisions made in
this Section
2.02(d), the Borrower may elect to continue as
a new Loan all or any part
of any Committed Loan beyond the expiration of the then current
Interest
Period relating thereto by giving advance notice as provided in Section
2.02(c) to the Administrative Agent (which shall promptly notify the
Lenders) of such election, specifying the amount of such Loan to be
continued as a new Committed Loan, the type
of Loan and the Interest Period
therefor. In the absence of such a timely
and proper election, the Borrower
shall be deemed to have elected to continue any such Loan as a Base Rate
Loan (if such Committed Loan is a
Eurodollar Loan, pursuant to a conversion
as set forth in Section 2.02(e)). All or
any part of any Committed Loan may
be continued as provided herein, provided that (i) with respect to a
Eurodollar Loan continued as a new
Eurodollar Loan, any continuation of any
such Loan shall be (as to each Loan as
continued for an applicable Interest
Period) in amounts of at least $5,000,000 or any whole multiple of
$1,000,000 in excess thereof and (ii) no
Default shall have occurred and be
continuing.
(e) Conversion Options. The Borrower may elect to convert
all or any part
of any Committed Loan which is a Eurodollar Loan on the last day of the
then current Interest Period relating
thereto to a Base Rate Loan by giving
advance notice as provided in Section
2.02(c) to the
Administrative
Agent
(which shall promptly notify the Lenders)
of such election.
Subject to the
provisions made in this Section 2.02(e),
the Borrower may elect
to convert
all or any part of any Committed Loan which
is a Base Rate Loan at any time
and from time to time to a Eurodollar Loan by giving advance notice as
provided in Section 2.02(c) to the Administrative Agent (which shall
promptly notify the Lenders) of such election. All or any part of any
outstanding Committed Loan may be converted as
provided herein,
provided
that (i) any conversion of any Base Rate
Loan into a Eurodollar
Loan shall
be (as to each such Loan into which there
is a conversion for an applicable
Interest Period) in amounts of at least
$5,000,000 or any whole multiple of
$1,000,000 in excess thereof and (ii) no
Default shall have occurred and be
continuing. Each Committed Loan that is
converted hereunder shall be a new
Committed Loan, and the Interest Period applicable to such converted
Committed Loan shall terminate as of the
effective date of such conversion.
(f) Advances. Not later than 1:00 p.m. New York City time on the date
specified for each borrowing hereunder, each Lender shall make
available
the amount of the Loan to be made by it on
such date to the
Administrative
Agent, to an account which the Administrative Agent shall specify, in
immediately available funds, for the account
of the Borrower. The
amounts
so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, promptly be
made available to the Borrower by
depositing the same, in immediately
available funds, in an account of the
Borrower, designated by the Borrower and
maintained at the Lending Office.
Section 2.03......Issuance Procedures,
Participations, Disbursements
and Reimbursement.
(a) By delivering to the Administrative Agent an Issuance Request in the
form of Exhibit B-2 hereto, on or before 10:00 a.m. on a
Business Day, the
Borrower may from time to time irrevocably request on not less than three
(3) nor more than ten (10) Business Days'
notice, in the case of an initial
issuance of a Letter of Credit and not less
than three (3)
Business Days'
prior notice, in the case of a request
for the extension of the Stated
Expiry Date of a Standby Letter of Credit (in each case,
unless a shorter
notice period is agreed to by the Issuer,
in its sole discretion), that an
Issuer issue, or with respect to a Standby
Letter of Credit,
extend the
Stated Expiry Date, a Letter of Credit in
such form as may be requested by
the Borrower and approved by such Issuer,
solely for the purposes described
in Section 7.07. Each Letter of Credit shall by its terms be stated
to
expire on a date (its "Stated Expiry Date") no later than the earlier
to
occur of (i) the Termination Date, (ii) in the case of a
Standby Letter of
Credit (unless otherwise agreed to by an Issuer,
in its sole
discretion),
one (1) year from the date of its issuance or (iii) in the case of a
Documentary Letter of Credit, six (6)
months from the date of its issuance.
Each Issuer will make available to the
beneficiary thereof
the original of
the Letter of Credit which it issues.
(b) Upon the issuance of each Letter of
Credit, and without further action,
each Lender (other than the Issuer) shall be deemed to have
irrevocably
purchased, to the extent of its Percentage
Share, a participation interest
in such Letter of Credit (including the Contingent Liability and any
Reimbursement Obligation with respect thereto),
and such Lender shall,
to
the extent of its Percentage Share, be responsible for
reimbursing within
one (1) Business Day of receiving notice
from the Issuer for
Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance
with Section 2.03(d) (with the terms of this Section surviving the
termination of this Agreement).
The issuing Lender
shall, to the extent of
its Percentage Share, be entitled to receive a ratable portion of the
Letter of Credit fees payable pursuant to Section 2.05(c) with respect to
each Letter of Credit. To the extent that any Lender has
reimbursed
any
Issuer for a Disbursement, such Lender shall be entitled to receive
its
ratable portion of any amounts subsequently
received (from the
Borrower or
otherwise) in respect of such
Disbursement.
(c) An Issuer will notify the Borrower and the Administrative Agent
promptly of the presentment for payment of any Letter of
Credit issued by
such Issuer, together with notice of the date (the
"Disbursement
Date")
such payment shall be made (each such
payment, a
"Disbursement").
Subject
to the terms and provisions of such Letter of Credit and this
Agreement,
the applicable Issuer shall make such payment to
the beneficiary
(or its
designee) of such Letter of Credit.
On or prior to 11:00
a.m. on the first
Business Day following the Disbursement Date, the Borrower will
reimburse
the Administrative Agent, for the account
of the applicable Issuer, for all
amounts which such Issuer has disbursed under such Letter of Credit,
together with interest thereon at a rate per annum equal
to the rate per
annum then in effect for Base Rate Loans
(with the then
Applicable Margin
for Revolving Loans accruing on such amount)
pursuant to Section
3.03 for
the period from the Disbursement Date through the date of such
reimbursement. Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrower hereby
acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit,
and it
shall be deemed to be the obligor for purposes of each such Letter of
Credit issued hereunder.
(d) The obligation (a "Reimbursement Obligation") of the Borrower under
Section 2.03(c) to reimburse an Issuer with respect to each
Disbursement
(including interest thereon), and, upon the failure of the
Borrower to
reimburse an Issuer, each Lender's obligation under Section 2.03(b) to
reimburse an Issuer, shall be absolute and
unconditional under any and all
circumstances and irrespective of any setoff,
counterclaim or
defense to
payment which the Borrower or such Lender,
as the case may be,
may have or
have had against such Issuer or any Lender,
including any defense based
upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in such
Issuer's good faith opinion, such
Disbursement is determined to be appropriate)
or any non-application or
misapplication by the beneficiary of the
proceeds of such Letter of Credit;
provided that, after paying in full its
Reimbursement Obligation hereunder,
nothing herein shall adversely affect the right of the Borrower
or such
Lender, as the case may be, to commence
any proceeding
against an Issuer
for any wrongful Disbursement made by such Issuer
under a Letter of Credit
as a result of acts or omissions
constituting
gross negligence or
willful
misconduct on the part of such Issuer.
(e) Upon the occurrence and during the
continuation
of any Default
under
Section 10.01 or upon notification by the
Administrative
Agent (acting at
the direction of the Required Lenders) to the Borrower of its
obligations
under this Section, following the
occurrence and during the continuation of
any other Event of Default,
(i) the aggregate Stated Amount of all Letters of Credit
shall, without
demand upon or notice to the Borrower or any other Person, be deemed to
have been paid or disbursed by the Issuers of such Letters of Credit
(notwithstanding that such amount may not in fact have been paid or
disbursed); and
(ii) the Borrower shall be immediately obligated to reimburse the
Issuers
for the amount deemed to have been so paid
or disbursed by such Issuers.
Amounts payable by the Borrower pursuant to
this Section shall be deposited
in immediately available funds with the
Administrative
Agent and held as
collateral security for the Reimbursement
Obligations.
When all Defaults
giving rise to the deemed disbursements under this Section
have been cured
or waived the Administrative Agent shall
return to the Borrower all amounts
then on deposit with the Administrative Agent pursuant to this Section
which have not been applied to the satisfaction of the Reimbursement
Obligations.
(f) The Borrower, and to the extent set forth in
Section 2.03(b), each
Revolving Loan Lender shall assume all risks of the acts,
omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Issuer
(except to the extent of its own gross
negligence
or willful
misconduct)
shall be responsible for:
(i) the form, validity, sufficiency,
accuracy, genuineness
or legal effect
of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of
Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or
forged;
(ii) the form, validity, sufficiency,
accuracy, genuineness or legal effect
of any instrument transferring or assigning or purporting to
transfer or
assign a Letter of Credit or the rights or benefits thereunder or the
proceeds thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(iii) failure of the beneficiary to comply
fully with conditions
required
in order to demand payment under a Letter
of Credit;
(iv) errors, omissions, interruptions or
delays in transmission or delivery
of any messages, by mail, cable, telegraph,
telex or otherwise; or
(v) any loss or delay in the transmission or otherwise of any document
or
draft required in order to make a
Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair
or prevent the vesting of any of
the rights or powers granted to any Issuer
or any Lender hereunder.
Section 2.04......Changes of
Commitments.
(a) The Borrower shall have the right to terminate
or to reduce the amount
of the Aggregate Commitments at any time or
from time to time upon not less
than three (3) Business Days' prior notice to the Administrative Agent
(which shall promptly notify the Lenders) of each such termination or
reduction, which notice shall specify the
effective date thereof and the
amount of any such reduction (which shall not be less than
$10,000,000 or
any whole multiple of $1,000,000 in excess thereof) and shall be
irrevocable and effective only upon receipt
by the Administrative Agent.
(b) The Aggregate Commitments once terminated or reduced may not be
reinstated.
Section 2.05......Fees.
(a) The Borrower shall pay to the
Administrative
Agent for the account
of
each Lender in accordance with its Percentage Share a fee equal to the
Standby Fee multiplied by the average daily
unused portion of the Aggregate
Commitments for the period from and
including the Closing Date up to but
excluding either the earlier of the date the
Aggregate Commitments are
terminated or the Termination Date. The accrued Standby Fees shall be
payable quarterly in arrears on each
Quarterly Date, on the Termination
Date, and thereafter on demand. The Standby Fee shall be calculated
quarterly in arrears, and if there is any change in the
Standby Fee during
any quarter, the average daily unused portion shall be computed and
multiplied by the Standby Fee separately for each period during such
quarter that the Standby Fee was in effect.
The Standby Fee shall accrue at
all times, including at any time when one or
more conditions in Article VI
is not met.
(b) The Borrower shall pay to the
Administrative
Agent, for the pro rata
account of the applicable Issuer, a Letter of Credit fronting fee (the
"Fronting Fee"), in an amount to be agreed
upon by such
Issuer and the
Borrower at the time of the issuance of each Letter of Credit, payable
quarterly in arrears following the issuance of such Letter of
Credit and
(if earlier), on the date of any termination or expiration of such
Letter
of Credit. In addition, the Administrative Agent's customary
administrative, issuance, amendment, payment and
negotiation fees shall be
payable to the Administrative Agent, for its own account, as
Issuer of the
Letters of Credit on the dates and in the amounts from time to time
notified to the Borrower by the
Administrative Agent.
(c) The Borrower agrees to pay to the Administrative Agent, for the pro
rata account of each Lender (including the applicable Issuer, in its
capacity as a Lender), a Letter of Credit fee (the
"Letter of Credit Fee")
in an amount equal to the then effective
Applicable
Margin for
Eurodollar
Loans, payable quarterly in arrears following the
issuance of such Letter
of Credit and (if earlier), on the date of
any termination or expiration of
such Letter of Credit.
(d) The Borrower shall pay to the
Administrative Agent for its account such
other fees as are set forth in the Fee Letter on the dates specified
therein to the extent not paid prior to the
Closing Date.
Section 2.06......Several Obligations. The failure of any Lender to
make
any Loan to be made by it on the date
specified therefor
shall not relieve
any other Lender of its obligation to make its Loan on such date,
but no
Lender shall be responsible for the failure of any other
Lender to make a
Loan to be made by such other Lender.
Section 2.07......Notes. The Committed Loans made by each
Lender shall be
evidenced by a single promissory note of the Borrower in
substantially the
form of Exhibit A-1 hereto, dated (i) April 2, 2004, or (ii)
the effective
date of an Assignment pursuant to Section
12.06(b), payable to the order of
such Lender in a principal amount equal to its Commitment as
in effect and
otherwise duly completed. The date, amount, Type, interest rate and
Interest Period of each Loan made by each
Lender, and all
payments made on
account of the principal thereof, shall be recorded by such Lender
on its
books for its Notes, and, prior to any transfer,
may be endorsed by
such
Lender on a schedule attached to such Notes
or any continuation
thereof or
on any separate record maintained by such
Lender. Failure to
make any such
notation or to attach a schedule shall not affect any Lender's or the
Borrower's rights or obligations in respect of such Loans or affect
the
validity of such transfer by any Lender of
its Notes.
Section 2.08......Prepayments.
(a) The Borrower may prepay the Base Rate
Loans upon not less than one (1)
Business Days' prior notice to the Administrative Agent (which shall
promptly notify the Lenders), which notice shall specify the prepayment
date (which shall be a Business Day) and the amount of the prepayment
(which shall be at least $1,000,000 or the remaining
aggregate principal
balance outstanding on the Notes) and
shall be irrevocable
and effective
only upon receipt by the Administrative Agent, provided that interest on
the principal prepaid, accrued to the
prepayment date, shall be paid on the
prepayment date. The Borrower may prepay Committed Loans which are
Eurodollar Loans upon not less than two (2)
Business Days' prior notice to
the Administrative Agent (which shall promptly notify the Lenders) and
otherwise on the same condition as for Base
Rate Loans and in addition such
prepayments of Eurodollar Loans shall be subject to the
terms of Section
5.05 and, for each Eurodollar Loan, shall be in an amount equal to all
of
such Eurodollar Loans for the Interest
Period prepaid.
(b) If, after giving effect to any termination or reduction of the
Aggregate Commitments pursuant to Section 2.04(b), the outstanding
aggregate principal amount of (i) the Loans and (ii)
the aggregate amount
of all Letter of Credit Outstandings
exceeds the Aggregate Commitments, the
Borrower shall prepay the Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess,
together
with interest on the principal amount paid accrued to the date of such
prepayment.
(c) Prepayments permitted or required under this Section 2.08 shall be
without premium or penalty, except as required under Section 5.05 for
prepayment of Eurodollar Loans. Any prepayments on the
Revolving Loans may
be reborrowed subject to the then effective
Aggregate Commitments and the
other provisions of this Agreement.
Section 2.09......Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending
Office for Loans of such Type.
Section 2.10......[Reserved].
Section 2.11......Change in Control. If a Change in Control
shall occur
then (a) the Borrower will, within five Business Days after
the occurrence
thereof, give each Lender notice
thereof and shall
describe in reasonable
detail the facts and circumstances
giving rise thereto
and (b) each Lender
may, by notice to the Borrower and the
Administrative Agent given not later
than 45 days after the occurrence of such
Change in Control,
terminate its
Commitments, which shall be terminated upon the date specified in such
notice, which date shall be no earlier
than the fifteenth
day after such
notice; all principal, accrued and unpaid interest and
all unpaid fees and
other amounts owing hereunder and under the Notes of
such Lender shall be
due and payable on such date.
For purposes
of this Section, a "Change in Control" shall be
deemed to occur (1) upon approval of the
shareholders
of the Borrower
(or
if such approval is not required, upon the
approval of the Borrower's Board
of Directors (the "Board") of (A) any consolidation or merger of the
Borrower, other than a consolidation or
merger of the Borrower into or with
a direct or indirect wholly-owned
Subsidiary, in which
the Borrower is not
the continuing or surviving corporation or pursuant to which shares of
common stock of the Borrower would be converted into cash, securities or
other property other than a merger in
which the holders of common stock of
the Borrower immediately prior to the merger will have the same
proportionate ownership of common stock of the surviving corporation
immediately after the merger, (B) any sale, lease, exchange, or other
transfer (in one transaction or a series of
related transactions) of all or
substantially all the assets of the Borrower,
or (C) adoption of any
plan
or proposal for the liquidation or dissolution of the Borrower,
(2) when
any person (as defined in Section
3(a)(9) or 13(d) of
the Exchange
Act),
other than the Borrower or any subsidiary
or employee benefit plan or trust
maintained by the Borrower, shall become the beneficial
owner (as defined
in Rule 13d-3 under the Exchange Act),
directly or indirectly, of more than
15% of the Borrower's common stock outstanding at the time, without the
approval of the Board, or (3) at any time during a period of two
consecutive years, individuals who at the beginning of such period
constituted the Board shall cease for any
reason to constitute
at least a
majority thereof, unless the election or
the nomination for election by the
Borrower's shareholders of each new director during such two-year period
was approved by a vote of at least
two-thirds of the
directors then
still
in office who were directors at the beginning of such two-year period.
Notwithstanding the foregoing, any
transaction, or series
of transactions,
that shall result in the disposition of the Borrower's interest in MAP,
including without limitation any transaction
arising out of that
certain
Put/Call, Registration Rights and Standstill Agreement dated January 1,
1998 among Marathon Oil Company, USX
Corporation, the
Borrower and MAP, as
amended from time to time, shall not be deemed to
constitute a Change
in
Control.
ARTICLE III.......
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01......Repayment of Loans. The Borrower will pay to the
Administrative Agent, for the account of each Lender, the principal
payments required by this Article III. The
aggregate principal
amount of
the Notes outstanding on the Termination
Date shall be due and
payable on
such date.
Section 3.02......Maturity of Loans. Each Loan borrowed hereunder shall
mature, and the principal amount thereof
shall be due and payable, on the
last day of the Interest Period applicable
to such Loan.
Section 3.03......Interest.
(a) Interest Rates. The Borrower will pay
to the Administrative
Agent, for
the account of each Lender, interest on the
unpaid principal amount of each
Loan made by such Lender for the period
commencing on the date such Loan is
made to but excluding the date such Loan shall be paid in full,
at the
following rates per annum:
(i) if such a Loan is a Base Rate Loan, the Alternate Base Rate (as in
effect from time to time) plus the
Applicable
Margin, but in no event to
exceed the Highest Lawful Rate; and
(ii) if such a Loan is a Eurodollar Loan
that is a Committed Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan
plus
the Applicable Margin, but in no event to
exceed the Highest Lawful Rate.
(b) Post-Default Rate. Notwithstanding the
foregoing, the Borrower will pay
to the Administrative Agent, for the
account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such
Lender, and (to the fullest extent permitted by law) on any other
amount
payable by the Borrower, hereunder or under
any Note held by such Lender to
or for account of such Lender, for the period commencing on the
date of an
Event of Default until the same is paid in full or
all Events of
Default
are cured or waived.
(c) Due Dates. Accrued interest on Base Rate
Loans shall be payable on the
last day of the Interest Period applicable
thereto, and accrued interest on
each Eurodollar Loan shall be payable on the last day of the
Interest
Period therefor and, if such Interest
Period is longer than three months at
three-month intervals following the first day of such Interest Period,
except that interest payable at the
Post-Default Rate shall be payable from
time to time on demand and interest on any Eurodollar Loan that is
converted into a Base Rate Loan (pursuant
to Section 5.04) shall be payable
on the date of conversion (but only to the
extent so converted).
(d) Determination of Rates. Promptly after the determination of any
interest rate provided for herein or any
change therein, the Administrative
Agent shall notify the Lenders to which such interest is payable and the
Borrower thereof. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall,
except in cases of manifest error, be
final, conclusive and binding on the
parties.
ARTICLE IV........
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01......Payments. Except to the
extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by the
Borrower hereunder shall be initiated in
Dollars, in immediately available
funds, to the Administrative Agent at such account as the
Administrative
Agent shall specify by notice to the
Borrower from time to time, not later
than 11:00 a.m. New York City time on the
date on which such payments shall
become due (each such payment made after such time on such due
date to be
deemed to have been made on the next succeeding Business Day). Such
payments shall be made without (to the fullest extent permitted by
applicable law) defense, set-off or
counterclaim. Each
payment received by
the Administrative Agent under this Agreement on any
Note for account of a
Lender shall be paid promptly to such Lender pro rata
in accordance
with
such Lender's Percentage Share in immediately
available funds.
Except as
provided in clause (ii) of the second paragraph of the definition of
"Interest Period," if the due date of any
payment under this
Agreement or
any Note would otherwise fall on a day which is not a
Business Day such
date shall be extended to the next
succeeding
Business Day and interest
shall be payable for any principal so extended for the period of such
extension. At the time of each payment to the
Administrative Agent
of any
principal of or interest on any
borrowing,
the Borrower
shall notify the
Administrative Agent of the Loans to which
such payment shall apply. In the
absence of such notice the Administrative Agent may specify the Loans to
which such payment shall apply,
but to the extent
possible such payment or
prepayment will be applied first to the
Loans comprised of Base Rate Loans.
Section 4.02......Pro Rata Treatment. Except to the extent otherwise
provided herein each Lender agrees that: (a) each borrowing from the
Lenders under Section 2.01 and each continuation and conversion under
Section 2.02 shall be made from the
Lenders pro rata in
accordance
with
their Percentage Share, each payment of the Standby
Fee under Section
2.05(a) and amounts owing to the Lenders
(including amounts paid in respect
of Reimbursement Obligations, to the extent actually
participated in by a
Lender) shall be made for account of the
Lenders pro rata in accordance
with their Percentage Shares and each termination or reduction of the
amount of the Aggregate Commitments under Section 2.04(a)
shall be applied
to the Commitment of each Lender,
pro rata according to
the amounts of its
respective Percentage Share; (b) except
during the continuance of an Event
of Default, each payment of principal of
Committed Loans,
the aggregate
Reimbursement Obligations then owing and the Cash Collaterization for
contingent liabilities under Letter of Outstandings by
the Borrower shall
be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amount of the Type of Loans so paid as
designated pursuant to Section 4.01; (c)
except during the
continuance of
an Event of Default, each payment of interest on
Committed Loans by the
Borrower shall be made for account of the
Lenders pro rata in
accordance
with the amounts of interest due and
payable to the
respective Lenders
on
the Type of Loans to which such interest payment is to be applied as
designated pursuant to Section 4.01; and (d)
during the continuance
of an
Event of Default each payment on the Loans shall be
applied as provided in
Section 10.02(c).
Section 4.03......Computations.
Interest on Eurodollar Loans and fees,
including any Letter of Credit fees, shall be computed on the basis of
a
year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which
such interest is
payable, unless such calculation
would exceed the
Highest Lawful Rate, in
which case interest shall be calculated on
the per annum basis of a year of
365 or 366 days, as the case may be. Interest on Base Rate Loans shall
be
computed on the basis of a year of 365 or
366 days, as the case may be, and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such
interest is payable.
Section 4.04......Non-receipt of Funds by
the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the
Borrower prior to the date on which such
notifying party is scheduled to
make payment to the Administrative Agent (in the case of a Lender) of
the
proceeds of a Loan or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more
of the Lenders
hereunder
(such payment being herein called the "Required Payment"), which notice
shall be effective upon receipt, that it does not intend to make the
Required Payment to the Administrative
Agent, the
Administrative Agent may
assume that the Required Payment has been made and may, in
reliance upon
such assumption (but shall not be required to),
make the amount
thereof
available to the intended recipient(s) on such date and, if
such Lender or
the Borrower (as the case may be) has not
in fact made the Required Payment
to the Administrative Agent, the recipient(s) of such payment
shall, on
demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the
period
commencing on the date such amount was so made available by the
Administrative Agent until but excluding the date
the Administrative Agent
recovers such amount at a rate per annum which, for any Lender as
recipient, will be equal to the Federal
Funds Rate, and for the Borrower as
recipient, will be equal to the Base Rate
plus the Applicable Margin.
Section 4.05......Set-off, Sharing of
Payments, Etc.
(a) The Borrower agrees that, in addition to (and
without limitation
of)
any right of set-off, bankers' lien or counterclaim a
Lender may otherwise
have, each Lender shall have the right and
be entitled, at its
option, to
offset balances held by it or by any of
its Affiliates for
account of the
Borrower or any Subsidiary at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such
Lender's Loans, or any other amount payable
to such Lender hereunder, which
is not paid when due (regardless of whether such balances are then
due to
the Borrower), in which case it shall promptly
notify the Borrower and the
Administrative Agent thereof, provided that such Lender's
failure to give
such notice shall not affect the validity
thereof.
(b) If any Lender shall obtain payment of any principal of or interest on
any Loan made by it to the Borrower under this Agreement through the
exercise of any right of set-off,
banker's lien or
counterclaim or similar
right or otherwise, and, as a result of such
payment, such Lender shall
have received a greater percentage of the principal or interest (or
reimbursement) then due hereunder by the Borrower to such
Lender than the
percentage received by any other Lenders, it
shall promptly (i) notify the
Administrative Agent and each other Lender
thereof and (ii)
purchase from
such other Lenders participations in (or,
if and to the extent specified by
such Lender, direct interests in) the Loans
made by such other Lenders (or
in interest due thereon, as the case may
be) in such amounts, and make such
other adjustments from time to time as
shall be equitable, to
the end that
all the Lenders shall share the benefit of
such excess payment
(net of any
expenses which may be incurred by such
Lender in obtaining or
preserving
such excess payment) pro rata in accordance with the unpaid principal
and/or interest on the Loans held by each
of the Lenders. To
such end all
the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise)
if such payment is rescinded or
must otherwise be restored. The Borrower agrees that any Lender so
purchasing a participation (or direct interest) in the Loans
made by other
Lenders (or in interest due thereon, as the case may be) may exercise
all
rights of set-off, banker's lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender were a direct
holder of Loans in the amount of such participation. Nothing contained
herein shall require any Lender to exercise any
such right or shall affect
the right of any Lender to exercise, and
retain the benefits of exercising,
any such right with respect to any other
indebtedness or
obligation of the
Borrower. If under any applicable
bankruptcy,
insolvency or other
similar
law, any Lender receives a secured claim in
lieu of a set-off to which this
Section 4.05 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such
secured claim in a manner consistent
with the rights of the Lenders entitled under this Section 4.05 to share
the benefits of any recovery on such
secured claim.
Section 4.06......Taxes.
(a) Payments Free and Clear. Any and all
payments by the Borrower hereunder
shall be made, in accordance with Section 4.01, free and clear of and
without deduction for any and all present
or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on their income and
franchise or similar taxes imposed
on them, by (i) any jurisdiction (or political subdivision thereof) of
which the Administrative Agent or such Lender, as the case may be, is a
citizen or resident or in which such Lender has an Applicable Lending
Office, (ii) the jurisdiction (or any political
subdivision
thereof) in
which the Administrative Agent or such Lender is organized,
or (iii) any
jurisdiction (or political subdivision thereof) in which such Lender,
the
Administrative Agent is presently doing
business in which taxes are imposed
solely as a result of doing business in such jurisdiction (all such
non-excluded taxes, levies, imposts,
deductions, charges,
withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any
Taxes from or in respect of any sum
payable hereunder to the Lenders or the
Administrative
Agent, (A) the sum
payable shall be increased by the amount
necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 4.06) such
Lender, the Administrative Agent (as
the case may be) shall receive an amount equal to the sum it would
have
received had no such deductions been made,
(B) the Borrower shall make such
deductions and (C) the Borrower
shall pay the full
amount deducted to
the
relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(b) Other Taxes. In addition, to the
fullest extent permitted by applicable
law, the Borrower agrees to pay any present or
future stamp or documentary
taxes or any other excise or property
taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any
Assignment (hereinafter referred to as
"Other Taxes").
(c) Indemnification. To the fullest extent
permitted by applicable law, the
Borrower will indemnify each Lender and the
Administrative
Agent for the
full amount of Taxes and Other Taxes
(including,
but not limited to,
any
Taxes or Other Taxes imposed by any Governmental Authority on amounts
payable under this Section 4.06) paid by
such Lender or the
Administrative
Agent (on their behalf or on behalf of any
Lender), as the case may be, and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether
or not such Taxes or Other Taxes
were correctly or legally asserted unless
the payment of such Taxes was not
correctly or legally asserted and such
Lender's or
Administrative
Agent's
payment of such Taxes or Other Taxes was
the result of its gross negligence
or willful misconduct. Any payment pursuant to such
indemnification
shall
be made within thirty (30) days after the date any Lender, the
Administrative Agent, as the case may be,
makes written demand therefor. If
any Lender or the Administrative Agent receives a refund or credit in
respect of any Taxes or Other Taxes for which such Lender, the
Administrative Agent has received payment from the Borrower it shall
promptly notify the Borrower of such refund or credit and shall,
if no
Default has occurred and is continuing, within thirty (30) days after
receipt of a request by the Borrower (or promptly upon receipt, if the
Borrower has requested application for such refund or credit pursuant
hereto), pay an amount equal to such refund or credit to the Borrower
without interest (but with any interest so
refunded or credited),
provided
that the Borrower, upon the request of such
Lender, the Administrative
Agent, agrees to return such refund or
credit (plus penalties, interest or
other charges) to such Lender or the
Administrative Agent in the event such
Lender or the Administrative Agent is required to repay such refund or
credit. Nothing in this Section 4.06 (c) shall oblige any Lender to
disclose to the Borrower or any other
person any information
regarding its
tax affairs or tax computations or interfere with the right of any
Lender
to arrange its tax affairs in whatever
manner it thinks fit.
(d) Lender Statements.
(i) Each Lender represents that it is either (1) a
corporation or banking
association organized under the laws of the
United States of America or any
state thereof or (2) it is entitled to complete exemption from United
States withholding tax imposed on or with respect to any payments,
including fees, to be made to it pursuant to this
Agreement (A) under
an
applicable provision of a tax convention to which the United States of
America is a party or (B) because it is
acting through a branch, agency or
office in the United States of America and
any payment to be received by it
hereunder is effectively connected with a trade or business
in the United
States of America. Each Lender that is not a corporation or banking
association organized under the laws of the
United States of America or any
state thereof agrees to provide to the
Borrower and the Administrative
Agent on the Closing Date, or on the date
of its delivery of the Assignment
pursuant to which it becomes a Lender,
and at such other
times as required
by United States law or as the Borrower or
the Administrative
Agent shall
reasonably request, two accurate and complete
original signed copies of
either (A) Internal Revenue Service Form W-8ECI (or successor form)
certifying that all payments to be made to
it hereunder will be effectively
connected to a United States trade or business (the "Form W-8ECI
Certification") or (B) Internal Revenue Service Form W-8BEN (or
successor
form) certifying that it is entitled to the
benefit of a provision of a tax
convention to which the United States of America is a party which
completely exempts from United States
withholding
tax all payments to
be
made to it hereunder (the "Form W-8BEN
Certification").
In addition, each
Lender agrees that if it previously filed a
Form W-8ECI
Certification, it
will deliver to the Borrower and the
Administrative Agent a new Form W-8ECI
Certification prior to the first payment date occurring in each of its
subsequent taxable years; and if it previously filed a Form W-8BEN
Certification, it will deliver to the
Borrower and the Administrative Agent
a new certification prior to the first payment date falling in the
third
year following the previous filing of such
certification. Each
Lender also
agrees to deliver to the Borrower and the
Administrative
Agent such other
or supplemental forms as may at any time be
required as a result of changes
in applicable law or regulation in order to
confirm or maintain in effect
its entitlement to exemption from United States withholding tax on any
payments hereunder, provided that the circumstances of
such Lender at the
relevant time and applicable laws permit it to do so. If a Lender
determines, as a result of any change in either (i) a Governmental
Requirement or (ii) its circumstances, that
it is unable to submit any form
or certificate that it is obligated to submit pursuant to this Section
4.06, or that it is required to withdraw or cancel any such form or
certificate previously submitted, it shall
promptly notify the Borrower and
the Administrative Agent of such fact; and, if as a
result of such change
the Borrower is required to pay or reimburse such Lender for any United
States withholding tax with respect to
any payments,
including fees, made
pursuant to this Agreement, the Borrower shall have the right with
assistance of the Administrative Agent, to seek a mutually acceptable
Lender or Lenders to purchase the Notes and
assume the Commitments
of such
Lender. If a Lender is organized under the
laws of a jurisdiction
outside
the United States of America, unless the Borrower and the
Administrative
Agent have received a Form W-8BEN Certification or Form W-8ECI
Certification satisfactory to them indicating
that all payments to be made
to such Lender hereunder are not subject to
United States
withholding tax,
the Borrower shall withhold taxes from such payments at the applicable
statutory rate. Each Lender agrees to indemnify and hold harmless the
Borrower or Administrative Agent, as applicable, from any United States
taxes, penalties, interest and other
expenses, costs and losses incurred or
payable by (i) the Administrative Agent as a result of such Lender's
failure to submit any form or certificate that it is required to provide
pursuant to this Section 4.06 or (ii) the Borrower or the Administrative
Agent as a result of their reliance on any
such form or
certificate which
such Lender has provided to them pursuant
to this Section 4.06.
(ii) For any period with respect to which a Lender has
failed to provide
the Borrower with the form required
pursuant to this
Section 4.06, if any,
(other than if such failure is due to a change in a Governmental
Requirement occurring subsequent to the
date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 4.06 with respect to taxes imposed by the
United States which taxes would not have
been imposed but for such failure
to provide such forms; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax
becomes subject to taxes because of its
failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to
recover such taxes.
(iii) Any Lender claiming any additional
amounts payable
pursuant to this
Section 4.06 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any
certificate or document requested by
the Borrower or the Administrative Agent or to change the
jurisdiction of
its Applicable Lending Office or to contest any
tax imposed if the making
of such a filing or change or contesting
such tax would avoid
the need for
or reduce the amount of any such
additional
amounts that may thereafter
accrue and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such
Lender.
(iv) Each of the Lenders represents that it in good faith is not
relying
upon any "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) as collateral in
the extension or
maintenance of the credit provided for in
this Agreement.
(v) Each of the Lenders represents that it
is its present intention to make
its Loans and to acquire the Notes to its order for its own
account as a
result of making Loans in the ordinary course of its commercial banking
business and not with a view to the
public distribution or public sale
thereof; subject, nonetheless, to any legal or administrative
requirement
that the disposition of such Lender's
property at all times
be within its
control.
ARTICLE V.........
CAPITAL ADEQUACY
Section 5.01......Additional Costs.
(a) Eurodollar Regulations, etc. The Borrower shall pay
directly to each
Lender from time to time such amounts as such Lender may
determine to be
necessary to compensate such Lender for any costs which it
determines are
attributable to its making or maintaining
of any Eurodollar
Loans or its
obligation to make any such Loans or any
reduction in any amount receivable
by such Lender hereunder in respect of any
of such Loans or such obligation
(such increases in costs and reductions in
amounts receivable
being herein
called "Additional Costs"), resulting from
any Regulatory Change which: (i)
changes the basis of taxation of any
amounts payable to
such Lender under
this Agreement or any Note in respect of any of
such Loans
(other than
taxes imposed on the overall net income of
such Lender or of its Applicable
Lending Office for any of such Loans by the jurisdiction in which such
Lender has its principal office or Applicable Lending Office; or (ii)
imposes or modifies any reserve,
special deposit,
minimum capital, capital
ratio or similar requirements relating to
any extensions of credit or other
assets of, or any deposits with or other
liabilities of such Lender, or the
Commitment or Loans of such Lender or the
Eurodollar interbank
market; or
(iii) imposes any other condition
affecting this
Agreement or any Note (or
any of such extensions of credit or liabilities) or such Lender's
Commitment or Loans. Each Lender will
notify the
Administrative Agent
and
the Borrower of any event occurring after the Closing Date which will
entitle such Lender to compensation pursuant to this Section 5.01 as
promptly as practicable after it obtains knowledge thereof and
determines
to request such compensation, and will designate a different Applicable
Lending Office for the Loans of such Lender
affected by such event
if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, provided that such Lender shall have no
obligation to so designate an Applicable Lending Office located in the
United States. If any Lender requests
compensation from the
Borrower under
this Section 5.01(a), the Borrower may, by notice to
such Lender,
suspend
the obligation of such Lender to make
additional
Loans of the Type
with
respect to which such compensation is
requested until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 shall be
applicable).
(b) Regulatory Change. Without limiting the effect of the
provisions of
Section 5.01(a), in the event that, by reason of
any Regulatory Change
or
any other circumstances arising after the Closing Date affecting such
Lender, the Eurodollar interbank market or such Lender's
position in such
market, any Lender either (i) incurs
Additional Costs based on or measured
by the excess above a specified level of the amount of a category of
deposits or other liab
