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EXHIBIT 10.2
EXECUTION COPY
364-DAY REVOLVING CREDIT AGREEMENT
$300,000,000
Dated as of March 21, 2005
Among
ASHLAND INC.
as Borrower,
THE BANK OF NOVA SCOTIA,
as Sole Lead Arranger
and
Sole and Exclusive Book Manager
SUNTRUST BANK
and
JP MORGAN CHASE BANK, N.A.,
as Co-Syndication Agents
THE ROYAL BANK OF SCOTLAND PLC
and
CITIBANK, N.A.,
as Co-Documentation Agents
THE BANK OF NOVA SCOTIA,
as Administrative Agent and Swing Line Lender,
and
THE LENDERS SIGNATORY HERETO
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
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..............................................14
ARTICLE II
Commitments...............................................................................14
Section 2.01 Revolving Loans and Swing Line
Loans.............................................14
Section 2.02 Borrowings, Continuations and
Conversions........................................15
Section 2.03 Extensions and Changes of
Commitments............................................17
Section 2.04
Fees.............................................................................19
Section 2.05 Several
Obligations..............................................................19
Section 2.06
Notes............................................................................19
Section 2.07
Prepayments......................................................................20
Section 2.08 Lending
Offices..................................................................20
Section 2.09
[Reserved].......................................................................20
Section 2.10 Change in
Control................................................................20
ARTICLE III Payments of Principal and
Interest........................................................21
Section 3.01 Repayment of
Loans...............................................................21
Section 3.02 Maturity of
Loans................................................................21
Section 3.03
Interest.........................................................................22
ARTICLE IV Payments; Pro Rata Treatment; Computations;
Etc...........................................22
Section 4.01
Payments.........................................................................22
Section 4.02 Pro Rata
Treatment...............................................................23
Section 4.03
Computations.....................................................................23
Section 4.04 Non-receipt of Funds by the Administrative
Agent.................................23
Section 4.05 Set-off, Sharing of Payments,
Etc................................................24
Section 4.06
Taxes............................................................................25
ARTICLE V Capital
Adequacy..........................................................................28
Section 5.01 Additional
Costs.................................................................28
Section 5.02 Limitation on Eurodollar
Loans...................................................29
Section 5.03
Illegality.......................................................................30
Section 5.04 Base Rate
Loans..................................................................30
Section 5.05
Compensation.....................................................................30
ARTICLE VI Conditions
Precedent......................................................................31
Section 6.01 Closing and Initial
Funding......................................................31
Section 6.02 Initial and Subsequent
Loans.....................................................32
ARTICLE VII Representations and
Warranties............................................................32
Section 7.01
Existence........................................................................32
Section 7.02 Financial
Condition..............................................................32
Section 7.03
Litigation.......................................................................33
Section 7.04 No
Breach........................................................................33
Section 7.05
Authority........................................................................33
Section 7.06
Approvals........................................................................33
Section 7.07 Use of
Loans.....................................................................33
Section 7.08
ERISA............................................................................34
Section 7.09
Taxes............................................................................34
Section 7.10 No Material
Misstatements........................................................35
Section 7.11 Investment Company
Act...........................................................35
Section 7.12 Public Utility Holding Company
Act...............................................35
Section 7.13
Defaults.........................................................................35
Section 7.14 Environmental
Matters............................................................35
Section 7.15
Insurance........................................................................36
Section 7.16 Reportable
Transaction...........................................................36
ARTICLE VIII Affirmative
Covenants.....................................................................36
Section 8.01 Reporting
Requirements...........................................................36
Section 8.02
Litigation.......................................................................38
Section 8.03 Maintenance,
Etc.................................................................38
Section 8.04 Further
Assurances...............................................................38
Section 8.05 Performance of
Obligations.......................................................39
Section 8.06 ERISA Information and
Compliance.................................................39
Section 8.07 Compliance with
Laws.............................................................39
Section 8.08 Payment of
Taxes.................................................................39
Section 8.09 Liquidity
Balance................................................................40
Section 8.10 Delivery of Officers Certificate,
etc............................................40
ARTICLE IX Negative
Covenants........................................................................40
Section 9.01
Liens............................................................................40
Section 9.02 Sales and
Leasebacks.............................................................42
Section 9.03 Mergers,
Etc.....................................................................42
Section 9.04 Proceeds of
Notes................................................................43
Section 9.05 ERISA
Compliance.................................................................43
Section 9.06 Leverage
Ratio...................................................................44
Section 9.07 Transactions with
Affiliates.....................................................44
ARTICLE X Events of Default;
Remedies...............................................................44
Section 10.01 Events of
Default................................................................44
Section 10.02
Remedies.........................................................................45
ARTICLE XI The Administrative
Agent..................................................................46
Section 11.01 Appointment, Powers and
Immunities...............................................46
Section 11.02 Reliance by Administrative
Agent.................................................47
Section 11.03
Defaults.........................................................................47
Section 11.04 Rights as a
Lender...............................................................47
Section 11.05
Indemnification..................................................................48
Section 11.06 Non-Reliance on Administrative Agent and other
Lenders...........................48
Section 11.07 Action by Administrative
Agent...................................................48
Section 11.08 Resignation of Administrative
Agent..............................................49
ARTICLE XII
Miscellaneous.............................................................................49
Section 12.01
Waiver...........................................................................49
Section 12.02
Notices..........................................................................49
Section 12.03 Expenses; Indemnity; Damage
Waiver...............................................50
Section 12.04 Amendments,
Etc..................................................................51
Section 12.05 Successors and
Assigns...........................................................52
Section 12.06 Assignments and
Participations...................................................52
Section 12.07
Invalidity.......................................................................54
Section 12.08
Counterparts.....................................................................55
Section 12.09
References.......................................................................55
Section 12.10
Survival.........................................................................55
Section 12.11
Captions.........................................................................55
Section 12.12 No Oral
Agreements...............................................................55
Section 12.13 Governing Law; Submission to
Jurisdiction........................................55
Section 12.14
Interest.........................................................................56
Section 12.15
Confidentiality..................................................................57
Section 12.16
Effectiveness....................................................................58
Section 12.17 Termination of Existing
Agreement................................................58
Section 12.18 The Proposed
Transactions........................................................58
Section 12.19 USA Patriot
Act..................................................................59
</TABLE>
<PAGE>
ANNEX, EXHIBITS AND SCHEDULES:
Annex 1 Schedule of Commitments
Exhibit A-1 Form of Revolving Note
Exhibit A-2 Form of Swing Line Note
Exhibit B Form of Borrowing, Continuation and Conversion
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 Form of Signature Page for a Replacement Lender
Exhibit I-1 Form of Joinder Agreement
Exhibit I-2 Form of Joinder Agreement
Schedule 7.03 Litigation
Schedule 7.08 Multiemployer Plans
Schedule 7.09 Taxes
Schedule 7.14 Environmental Matters
<PAGE>
This 364-DAY REVOLVING CREDIT AGREEMENT, dated as of March 21,
2005,
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 JP MORGAN
CHASE BANK,
N.A., collectively, as co-syndication agents for the Lenders;
THE ROYAL
BANK OF SCOTLAND PLC and CITIBANK, N.A., as documentation agents
for the
Lenders; and THE BANK OF NOVA SCOTIA (in its individual
capacity, "Scotia
Capital"), as the administrative agent (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 provide certain
loans
to the Borrower;
B. The Lenders have agreed to make such loans 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):
"Acceleration Event" shall have the meaning assigned such term
in
clause (b) of Section 10.01.
"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 ($300,000,000, as of the Effective
Date), as the
same may be reduced pursuant to Section 2.03(a).
"Aggregate Loans Outstanding" at any time shall equal the sum of
the
Loans outstanding under this Agreement and the loans outstanding
under the
5-Year Credit Facility.
"Agreement" shall mean this 364-Day 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 Loans
Outstanding 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); provided, however, that in
the event
the Borrower elects to convert the outstanding Revolving Loans
to
non-revolving Term Loans pursuant to Section 2.03(d), from and
after such
conversion the Applicable Margin shall be increased by
0.25%:
Percentage of Aggregate Loans
Outstanding
Index <50% >50%
-
Debt:
Category 1 0.450% 0.500%
Category 2 0.500% 0.625%
Category 3 0.625% 0.750%
Category 4 0.750% 0.875%
Category 5 1.250% 1.500%
For purposes of the foregoing and for purposes of calculating
the Standby
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
<PAGE>
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 and the Lenders 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.
"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
2.10.
"Borrowing Request" shall mean a Loan request and certificate
duly
executed by an Authorized Officer of the Borrower substantially
in the form
of Exhibit B hereto.
"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.
"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.
<PAGE>
"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
2.10.
"Closing Date" shall mean March 21, 2005.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time and any successor statute.
"Commitment" shall mean, as the context may require, a Revolving
Loan
Commitment or Swing Line Loan Commitment.
"Committed Loan" shall mean a Revolving Loan or a Term 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.
"Continuing Default" shall have the meaning assigned such term
in
clause (b) of Section 10.01.
"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
<PAGE>
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.
"Defaulted Debt Amount" shall mean the aggregate sums not paid
when
due and/or accelerated in respect of Debt subject to a
Continuing Default
or Acceleration Event less any such amount in respect of such
Debt which
has been paid or defeased in accordance with the terms of such
Debt.
"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
<PAGE>
"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.
<PAGE>
"Exchange Act" shall have the meaning assigned such term in
Section
9.04.
"Existing Agreements" shall mean, collectively, (i) the
$100,000,000
364-Day Revolving Credit Agreement, dated as of April 2, 2004
(as amended
or otherwise modified), among the Borrower, certain Existing
Lenders and
The Bank of Nova Scotia, as administrative agent, (ii) the
Amended and
Restated Liquidity Credit Agreement, dated as of May 27, 2004
(as further
amended or otherwise modified), among the Borrower, certain
Existing
Lenders and The Bank of Nova Scotia, as administrative agent,
and (iii) the
3-Year Revolving Credit Agreement, dated as of April 2, 2004 (as
amended or
otherwise modified), among the Borrower, certain Existing
Lenders and The
Bank of Nova Scotia, as administrative agent.
"Existing Lenders" shall mean the lenders under the Existing
Agreements.
"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 16,
2005
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.
"Final Maturity Date" shall mean the date one year after the
Termination Date.
"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.
"First Amendment" shall mean the First Amendment, dated as
of
September 28, 2004, to the Existing Agreement described in
clause (i) of
the definition thereof, among the Borrower and the Existing
Lenders party
thereto.
"5-Year Credit Facility" shall mean the 5-Year Revolving
Credit
Agreement, dated as of March 21, 2005 among the Borrower, the
lenders
named therein and The Bank of Nova Scotia, as the administrative
agent.
"Funded Debt" has the meaning specified in Section 9.02.
<PAGE>
"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 and the Notes 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
<PAGE>
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 or the Final Maturity
Date,
whichever is applicable; (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.
"Lenders" shall have the meaning set forth in the preamble and
shall
include the Swing Line Lender.
"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.
"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.
"Liquidity Balance" shall mean, on any date, an amount equal to
the
sum of cash on hand, cash equivalents and other investments
having a
maturity date of one year or less owned by the Borrower and
its
Subsidiaries, none of which is encumbered by any Lien or other
preferential
treatment in favor of any creditor (other than any Liens
permitted by
Section 9.01(c), Section 9.01(o) or Section 9.01(p) of this
Agreement).
"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. After the continuation of Revolving Loans to Term Loans
pursuant to
Section 2.03(d), "Loans" shall mean Term 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 fifty 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.
<PAGE>
"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.
"New Ashland Inc." shall mean New EXM Inc., a Kentucky
corporation.
"Notes" shall mean, as the context may require, a Revolving Note
or a
Swing Line Note.
"OFAC" shall mean the U.S. Department of the Treasury's Office
of
Foreign Assets Control.
"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
2.10 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
<PAGE>
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.
"Proposed Transactions" shall mean a series of transactions
(i)
pursuant to which New Ashland Inc. becomes the successor,
through one or
more mergers, to the Borrower and its businesses (other than,
principally,
the Borrower's interest in MAP and certain other assets or
businesses of
the Borrower, contemplated as of the date of this Agreement to
include
approximately 61 Valvoline instant oil change centers, its
maleic anhydride
business and its remaining interests in LOOP LLC and LOCAP LLC),
and is
intended to become the Borrower hereunder; (ii) pursuant to
which a
substantial portion of the existing Debt of the Borrower and
its
Subsidiaries is, to the extent reasonably practicable, redeemed,
retired,
repurchased, defeased, refinanced or restructured; and (iii)
that may
include (as initial, intermediate or final steps) sales or
other
dispositions of assets, mergers or consolidations of entities,
borrowings
and distributions of cash and other assets through redemptions
or
otherwise, all of the foregoing occurring as a result of or in
connection
with agreements or other arrangements involving the Borrower,
Marathon Oil
Corporation and certain of their respective Affiliates
substantially as
disclosed in the Borrower's filings with the SEC through the
date of this
Agreement with such modifications as (x) are not materially
adverse to the
Lenders or (y) are approved by the Majority Lenders.
"Quarterly Dates" shall mean the last day of each March,
June,
September, and December, in each year, the first of which shall
be March
31, 2005; provided, however, that if any such day is not a
Business Day,
such Quarterly Date shall be the next succeeding Business
Day.
"Refunded Swing Line Loans" shall have the meaning assigned to
such
term in Section 2.02(g)(ii).
"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
<PAGE>
(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.
"Replacement Lender" shall have the meaning assigned such term
in
Section 2.03(c).
"Replacement Revolving Loan Lender" shall have the meaning
assigned
such term in Section 12.06(h).
"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).
"Revolving Loan Commitment" shall mean, relative to any Lender,
such
Lender's obligation (if any) to make Revolving Loans pursuant to
clause (a)
of Section 2.01 up to the amount of the Revolving Loan
Commitment for such
Lender on Annex 1 hereto, as modified from time to time to
reflect any
adjustments permitted or required hereby.
"Revolving Loan Lender" shall mean shall have the meaning
assigned
such term in clause (a) of Section 2.01.
"Revolving Note" shall mean a promissory note of the Borrower
payable
to any Revolving Loan Lender, in the form of Exhibit A-1 hereto
(as such
promissory note may be amended, endorsed or otherwise modified
from time to
time), evidencing the aggregate Indebtedness of the Borrower to
such
Revolving Loan Lender resulting from outstanding Revolving
Loans, and also
means all other promissory notes accepted from time to time in
substitution
therefor or renewal thereof.
"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 0.090%
Category 2 0.100%
Category 3 0.125%
Category 4 0.150%
Category 5 0.200%
"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..
Unless otherwise indicated herein, each reference to the term
"Subsidiary"
shall mean a Subsidiary of the Borrower.
"Swing Line Lender" shall mean, subject to the terms of this
Agreement, Scotia Capital.
"Swing Line Loan" shall have the meaning assigned such term in
clause
(a) of Section 2.01.
"Swing Line Loan Commitment" shall have the meaning assigned
such term
in clause (a) of Section 2.01.
"Swing Line Loan Commitment Amount" shall mean, on any date,
$10,000,000, as such amount may be reduced from time to time
pursuant to
Section 2.03(a).
"Swing Line Note" means a promissory note of the Borrower
payable to
the Swing Line Lender, in the form of Exhibit A-2 hereto (as
such
promissory note may be amended, endorsed or otherwise modified
from time to
time), evidencing the aggregate Indebtedness of the Borrower to
the Swing
Line Lender resulting from outstanding Swing Line Loans, and
also
<PAGE>
means all other promissory notes accepted from time to time in
substitution
therefor or renewal thereof.
"Taxes" shall have the meaning assigned such term in Section
4.06(a).
"Term Loan" shall mean the term loan made pursuant to Section
2.03(d).
"Termination Date" shall mean the earlier to occur of (i) March
22,
2005 (if the Initial Funding has not occurred on or prior to
such day) or
(ii) March 20, 2006 unless the Aggregate Commitments are sooner
terminated
pursuant to Sections 2.03(a) or 10.02 hereof, or as extended
pursuant to
Section 2.03(c).
"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 Revolving Loans and Swing Line Loans.
(a) Revolving Loans and Swing Line Loans. (i) Each Lender that
has a
Revolving Loan Commitment (each, a "Revolving Loan 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 amount equal to such Lender's Percentage Share of the
aggregate
amount of each Borrowing of Revolving Loans requested by the
Borrower; and
(ii) The Swing Line Lender agrees that it will make loans
(herein
called "Swing Line Loans") to the Borrower equal to the
principal amount of
the Swing Line Loans requested by the Borrower to be made. The
Commitment
of the Swing Line Lender described in this clause is herein
referred to as
its "Swing Line Loan Commitment".
On the terms and subject to the conditions hereof, the Borrower
may from
time to time borrow, prepay and reborrow Revolving Loans and
Swing Line
Loans. No Revolving Loan Lender shall
<PAGE>
be permitted or required to make any Revolving Loan if, after
giving effect
thereto, the aggregate outstanding principal amount of all
Revolving Loans
of such Revolving Loan Lender, together with such Lender's
Percentage Share
of the aggregate amount of all Swing Line Loans, would exceed
such Lender's
Percentage Share of the then existing Aggregate Commitments.
Furthermore,
the Swing Line Lender shall not be permitted or required to make
Swing Line
Loans if, after giving effect thereto, (i) the aggregate
outstanding
principal amount of all Swing Line Loans would exceed the then
existing
Swing Line Loan Commitment Amount or (ii) unless otherwise
agreed to by the
Swing Line Lender, in its sole discretion, the sum of all Swing
Line Loans
and Revolving Loans made by the Swing Line Lender would exceed
the Swing
Line Lender's Percentage Share of the then existing Aggregate
Commitments.
(b) Limitation on Types of Loans. Subject to the other terms
and
provisions of this Agreement, at the option of the Borrower, the
Loans
(other than Swing Line Loans) may be Base Rate Loans or
Eurodollar Loans;
provided that, without the prior written consent of the Majority
Lenders,
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. In the case of Revolving Loans, the Borrower
shall
give the Administrative Agent (which shall promptly notify the
Revolving
Loan Lenders) advance notice as hereinafter provided of each
borrowing of
Revolving Loans hereunder, which shall specify the aggregate
amount of such
borrowing, the Type and the date (which shall be a Business Day)
of such
Revolving Loans to be borrowed and (in the case of Eurodollar
Loans) the
duration of the Interest Period therefor.
(b) Minimum Amounts. In the case of Revolving Loans, 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 Revolving Loan borrowings, continuations
and
conversions shall require advance written notice to the
Administrative
Agent (which shall promptly notify the Lenders) in the form of
Exhibit B
hereto (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
Revolving Loan
all or any part of any Revolving 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 Revolving Loan to be continued as
<PAGE>
a new Revolving Loan, the type of Revolving 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 Revolving
Loan as a
Base Rate Loan (if such Revolving Loan is a Eurodollar Loan,
pursuant to a
conversion as set forth in Section 2.02(e)). All or any part of
any
Revolving 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 Revolving Loan shall be (as to each
Revolving 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 Revolving 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 Revolving 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 Revolving 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 Revolving 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 Revolving Loan that is
converted hereunder
shall be a new Revolving Loan, and the Interest Period
applicable to such
converted Revolving 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 Revolving 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.
(g) Swing Line Loans; Participations, etc. (i) By telephonic
notice to
the Swing Line Lender on or before 11:00 a.m. New York City time
on a
Business Day (followed (within one Business Day) by the delivery
of a
confirming Borrowing Request), the Borrower may from time to
time
irrevocably request that Swing Line Loans be made by the Swing
Line Lender
in an aggregate minimum principal amount of $50,000. Without in
any way
limiting the Borrower's obligation to confirm in writing any
telephonic
notice, the Swing Line Lender may act without liability upon the
basis of
telephonic notice believed by the Swing Line Lender 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 Swing
Line
Lender's record of the terms of such telephonic notice except in
the case
of gross negligence or willful misconduct by the Swing Line
Lender. All
Swing Line Loans shall be made as Base Rate Loans and shall not
be entitled
to be converted into Eurodollar Loans. The proceeds of each
Swing Line Loan
shall be made
<PAGE>
available by the Swing Line Lender to the Borrower by wire
transfer to the
account the Borrower shall have specified in its notice therefor
by the
close of business on the Business Day telephonic notice is
received by the
Swing Line Lender. Upon the making of each Swing Line Loan, and
without
further action on the part of the Swing Line Lender or any other
Person,
each Revolving Loan Lender (other than the Swing Line Lender)
shall be
deemed to have irrevocably purchased, to the extent of its
Percentage
Share, a participation interest in such Swing Line Loan, and
such Revolving
Loan Lender shall, to the extent of its Percentage Share, be
responsible
for reimbursing within one Business Day the Swing Line Lender
for Swing
Line Loans which have not been reimbursed by the Borrower in
accordance
with the terms of this Agreement.
(ii) If (A) any Swing Line Loan or Swing Line Loans shall be
outstanding in a principal amount (individually or in the
aggregate) in
excess of $2,500,000, (B) any Swing Line Loan is or will be
outstanding on
a date when the Borrower requests that a Revolving Loan be made,
or (C) any
Default shall occur and be continuing, then each Revolving Loan
Lender
(other than the Swing Line Lender) irrevocably agrees that it
will, at the
request of the Swing Line Lender, make a Revolving Loan (which
shall
initially be funded as a Base Rate Loan) in an amount equal to
such
Lender's Percentage Share of the aggregate principal amount of
all such
Swing Line Loans then outstanding (such outstanding Swing Line
Loans
hereinafter referred to as the "Refunded Swing Line Loans"). On
or before
11:00 a.m. New York City time on the first Business Day
following receipt
by each Revolving Loan Lender of a request to make Revolving
Loans as
provided in the preceding sentence, each Revolving Loan Lender
shall
deposit in an account specified by the Swing Line Lender the
amount so
requested in same day funds and such funds shall be applied by
the Swing
Line Lender to repay the Refunded Swing Line Loans. At the time
the
Revolving Loan Lenders make the above referenced Revolving Loans
the Swing
Line Lender shall be deemed to have made, in consideration of
the making of
the Refunded Swing Line Loans, Revolving Loans in an amount
equal to the
Swing Line Lender's Percentage Share of the aggregate principal
amount of
the Refunded Swing Line Loans. Upon the making (or deemed
making, in the
case of the Swing Line Lender) of any Revolving Loans pursuant
to this
clause, the amount so funded shall become an outstanding
Revolving Loan and
shall no longer be owed as a Swing Line Loan. All interest
payable with
respect to any Revolving Loans made (or deemed made, in the case
of the
Swing Line Lender) pursuant to this clause shall be
appropriately adjusted
to reflect the period of time during which the Swing Line Lender
had
outstanding Swing Line Loans in respect of which such Revolving
Loans were
made. Each Revolving Loan Lender's obligation to make the
Revolving Loans
referred to in this clause shall be absolute and unconditional
and shall
not be affected by any circumstance, including (A) any
set-off,
counterclaim, recoupment, defense or other right which such
Lender may have
against the Swing Line Lender, the Borrower or any Person for
any reason
whatsoever; (B) the occurrence or continuance of any Default;
(C) any
adverse change in the condition (financial or otherwise) of the
Borrower;
(D) the acceleration or maturity of any Loan (or any other
amount payable
by the Borrower hereunder) or the termination of any Commitment
after the
making of any Swing Line Loan; (E) any breach of this Agreement
or any Note
by any Person; or (F) any other circumstance, happening or
event
whatsoever, whether or not similar to any of the foregoing.
Section 2.03 Extensions and Changes of Commitments.
<PAGE>
(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.
Any optional or mandatory reduction of the Aggregate Commitments
pursuant
to the terms of this Agreement which reduces the Aggregate
Commitments
below the sum of the Swing Line Loan Commitment Amount shall
result in an
automatic and corresponding reduction of the Swing Line Loan
Commitment
Amount (as directed by the Borrower in a notice to the
Administrative Agent
delivered together with the notice of such voluntary reduction
in the
Aggregate Commitments) to an aggregate amount not in excess of
the
Aggregate Commitments, as so reduced, without any further action
on the
part of the Swing Line Lender.
(b) The Aggregate Commitments once terminated or reduced may not
be
reinstated.
(c) Provided no Default has occurred and is continuing, the
Borrower
may annually request that the Termination Date be extended upon
prior
written notice delivered to the Administrative Agent not more
than 60 days
nor less than 30 days prior to the then-current Termination
Date. Upon
delivery of such written notice, each Lender in its sole
discretion may
(but shall not be obligated to) agree not more than 30 days
prior to the
then-current Termination Date to extend the then-effective
Termination Date
for a period of 364 days from and including the existing
Termination Date.
The Administrative Agent shall promptly notify each Lender of
the
Borrower's request for extension. Any Lender's failure to
respond or
failure to provide an affirmative response at least 25 days
prior to the
existing Termination Date shall be deemed to be a response by
such Lender
in the negative to such request. The Administrative Agent shall
promptly
notify the Borrower of the status of consent or non-consent of
the Lenders.
Within 10 days of the Termination Date, the Borrower will
provide the
Administrative Agent with written notice of any Person who has
agreed to
become a replacement lender ("Replacement Lender") for one or
more
non-consenting Lenders and the amount of such Replacement
Lender's
Commitment. If any such Replacement Lender is not an existing
Lender
hereunder, such new Replacement Lender shall be subject to the
approval of
the Administrative Agent, which approval shall not be
unreasonably
withheld. Notwithstanding Article III hereof, all outstanding
principal,
accrued interest and all unpaid fees and other amounts owing
hereunder and
under a non-consenting Lender's Note shall become immediately
due and
payable upon the Termination Date without regard to such
extension and such
non- consenting Lender's Commitment shall be reduced to zero on
such date.
The extension shall become effective on the current Termination
Date. On or
prior to the effective date of such extension, each Replacement
Lender, if
any, shall execute a new signature page to this Agreement in the
form of
Exhibit H hereto and the Borrower shall execute and deliver new
Notes to
such Replacement Lenders in the amount of their respective
resulting
Commitments. The Administrative Agent shall attach a revised
Annex 1 hereto
reflecting the revised Commitments and Percentage Shares and
deliver a copy
thereof to the Borrower and to each Lender. Upon the effective
date of the
extension, each Lender, including each Replacement Lender, if
any, shall
advance its Percentage Share of any Loan being made on said date
as
provided in Section 2.02 hereof.
<PAGE>
(d) Provided no Default has occurred and is continuing, in the
event
the Borrower does not elect (or has no further right) to extend
the
Termination Date pursuant to Section 2.03(c) above, the Borrower
may upon
60 days' prior written notice to the Administrative Agent elect
to have the
principal balance of the Revolving Loans outstanding on the
Termination
Date continued to the Final Maturity Date as non-revolving Term
Loans.
During the period of such Term Loans, the Borrower may repay but
not
reborrow the outstanding Term Loans as provided in Section 2.07
hereof,
except as may be required from time to time to continue the
outstanding
principal balance of maturing Committed Loans pursuant to
Section 2.02(d)
and (e).
Section 2.04 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. The making of Swing Line Loans shall not constitute
usage of
the Revolving Loan Commitment with respect to the calculation of
Standby
Fees to be paid by the Borrower to the Lenders.
(b) 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 2.05 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 2.06 Notes. The Loans made by each Lender shall be
evidenced
by promissory notes of the Borrower in substantially the forms
of Exhibit
A-1 and Exhibit A-2 hereto (as applicable), dated (i) March 21,
2005, (ii)
the effective date of an Assignment pursuant to Section 12.06(b)
or (iii)
for a Replacement Lender or a Replacement Revolving Loan Lender,
the
effective date of the Termination Date extension pursuant to
Section
2.03(c) or Section 12.06(h) (as applicable), 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
<PAGE>
obligations in respect of such Loans or affect the validity of
such
transfer by any Lender of its Notes.
Section 2.07 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 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; provided
that, (A)
all such voluntary prepayments of Swing Line Loans shall require
prior
telephonic notice to the Swing Line Lender on or before 11:00
a.m. New York
City time on the day of such prepayment (such notice to be
confirmed in
writing within 24 hours thereafter); and (B) all such voluntary
partial
prepayments shall be in an aggregate minimum amount of $200,000
and any
whole multiple of $100,000 in excess thereof.
(b) On each date the outstanding aggregate principal amount of
the
Revolving Loans and Swing Line Loans exceeds the Aggregate
Commitments
(including, without limitation, as a result of any termination
or reduction
of the Aggregate Commitments pursuant to Section 2.03(b)), the
Borrower
shall prepay the Revolving Loans or Swing Line Loans (or both)
on such date
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 2.07
shall be
without premium or penalty, except as required under Section
5.05 for
prepayment of Eurodollar Loans. Any prepayments on the Loans may
be
reborrowed subject to the then effective Aggregate Commitments
and the
other provisions of this Agreement.
Section 2.08 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 2.09 [Reserved].
Section 2.10 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
<PAGE>
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, the Proposed Transactions or any
other
transaction, or series of transaction, that 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 unless the principal balance of the Revolving Loans
outstanding
on the Termination Date are converted to Term Loans pursuant to
Section
2.03(d). If the Revolving Loans are converted to Term Loans, the
aggregate
principal amount of the Notes outstanding on the Final Maturity
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.
<PAGE>
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; provided that, Swing
Line Loans
shall always be maintained as Base Rate Loans; and
(ii) if such a Loan is a Eurodollar 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
<PAGE>
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
2.04(a) 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 2.03(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 Loans 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 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
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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 liabilities of such Lender which includes
deposits by
reference to which the interest rate on Eurodollar Loans is
determined as
provided in this Agreement or a category of extensions of credit
or other
assets of such Lender which includes Eurodollar Loans or (ii)
becomes
subject to restrictions on the amount of such a category of
liabilities or
assets which it may hold, then, if such Lender so elects by
notice to the
Borrower, the obligation of such Lender to make additional
Eurodollar Loans
shall be suspended until such Regulatory Change or other
circumstances
ceases to be in effect (in which case the provisions of Section
5.04 shall
be applicable).
<PAGE>
(c) Capital Adequacy. Without limiting the effect of the
foregoing
provisions of this Section 5.01 (but without duplication), the
Borrower
shall pay directly to any Lender from time to time on request
such amounts
as such Lender may reasonably determine to be necessary to
compensate such
Lender or its parent or holding company for any costs which it
determines
are attributable to the maintenance by such Lender or its parent
or holding
company (or any Applicable Lending Office), pursuant to any
Governmental
Requirement following any Regulatory Change, of capital in
respect of its
Commitment, its Notes or its Loans, such compensation to
include, without
limitation, an amount equal to any reduction of the rate of
return on
assets or equity of such Lender or its parent or holding company
(or any
Applicable Lending Office) to a level below that which such
Lender or its
parent or holding company (or any Applicable Lending Office)
could have
achieved but for such Governmental Requirement. Such Lender will
notify the
Borrower that it is entitled to compensation pursuant to this
Section
5.01(c) as promptly as practicable after it determines to
request such
compensation.
(d) Compensation Procedure. Any Lender notifying the Borrower of
the
incurrence of Additional Costs under this Section 5.01 shall in
such notice
to the Borrower and the Administrative Agent set forth in
reasonable detail
the basis and amount of its request for compensation.
Determinations and
allocations by each Lender for purposes of this Section 5.01 of
the effect
of any Regulatory Change pursuant to Section 5.01(a) or (b), or
of the
effect of capital maintained pursuant to Section 5.01(c), on its
costs or
rate of return of maintaining Loans or its obligation to make
Loans, or on
amounts receivable by it in respect of Loans, and of the amounts
required
to compensate such Lender under this Section 5.01, shall, absent
manifest
error, be conclusive and binding for all purposes, provided that
such
determinations and allocations are made on a reasonable basis.
Any request
for additional compensation under this Section 5.01 shall be
paid by the
Borrower within thirty (30) days of the receipt by the Borrower
of the
notice described in this Section 5.01(d).
(e) Replacement of Bank. If any Lender has demanded compensation
under
Section 5.01(c), the Borrower shall have the right (so long as
no Default
or Event of Default shall be in existence) with the assistance
of the
Administrative Agent, to seek a Lender or Lenders mutually
acceptable to
the Borrower and the Administrative Agent to purchase the Notes
and assume
the Commitments of such Lender.
Section 5.02 Limitation on Eurodollar Loans. Anything herein to
the
contrary notwithstanding, if, on or prior to the determination
of any
Eurodollar Rate for any Interest Period:
(a) the Administrative Agent determines (which determination
shall be
conclusive, absent manifest error) that quotations of interest
rates for
the relevant deposits referred to in the definition of
"Eurodollar Rate,"
as the case may be, in Section 1.02 are not being provided in
the relevant
amounts or for the relevant maturities for purposes of
determining rates of
interest for Eurodollar Loan
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