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EXHIBIT 10.1
EXECUTION COPY
5-YEAR REVOLVING CREDIT AGREEMENT
$350,000,000
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
THE LENDERS SIGNATORY HERETO
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<TABLE>
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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
Loans............................................................................14
Section 2.02 Borrowings, Continuations and
Conversions........................................15
Section 2.03 Issuance Procedures, Participations, Disbursements
and Reimbursement.............16
Section 2.04 Changes of
Commitments...........................................................19
Section 2.05
Fees.............................................................................19
Section 2.06 Several
Obligations..............................................................20
Section 2.07
Notes............................................................................20
Section 2.08
Prepayments......................................................................20
Section 2.09 Lending
Offices..................................................................20
Section 2.10
[Reserved].......................................................................21
Section 2.11 Change in
Control................................................................21
ARTICLE III Payments of Principal and
Interest........................................................21
Section 3.01 Repayment of
Loans...............................................................21
Section 3.02 Maturity of
Loans................................................................22
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
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TABLE OF CONTENTS
(continued)
PAGE
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 and Letters of
Credit...............................32
ARTICLE VII Representations and
Warranties............................................................32
Section 7.01
Existence........................................................................32
Section 7.02 Financial
Condition..............................................................33
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 and Letters of
Credit...............................................33
Section 7.08
ERISA............................................................................34
Section 7.09
Taxes............................................................................35
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.....................................................................37
Section 8.01 Reporting
Requirements...........................................................37
Section 8.02
Litigation.......................................................................38
Section 8.03 Maintenance,
Etc.................................................................38
Section 8.04 Further
Assurances...............................................................39
Section 8.05 Performance of
Obligations.......................................................39
ii
<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
Section 8.06 ERISA Information and
Compliance.................................................39
Section 8.07 Compliance with
Laws.............................................................40
Section 8.08 Payment of
Taxes.................................................................40
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.........................................................................46
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...................................................49
Section 11.08 Resignation of Administrative
Agent..............................................49
ARTICLE XII
Miscellaneous.............................................................................49
Section 12.01
Waiver...........................................................................49
Section 12.02
Notices..........................................................................50
Section 12.03 Expenses; Indemnity; Damage
Waiver...............................................50
Section 12.04 Amendments,
Etc..................................................................52
iii
<PAGE>
TABLE OF CONTENTS
(continued)
PAGE
Section 12.05 Successors and
Assigns...........................................................52
Section 12.06 Assignments and
Participations...................................................52
Section 12.07
Invalidity.......................................................................55
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.........................................................................57
Section 12.15
Confidentiality..................................................................57
Section 12.16
Effectiveness....................................................................58
Section 12.17 Termination of Existing
Agreement................................................59
Section 12.18 The Proposed
Transactions........................................................59
Section 12.19 USA Patriot
Act..................................................................59
</TABLE>
ANNEX, EXHIBITS AND SCHEDULES:
Annex 1 Schedule of Commitments
Exhibit A Form of Note
Exhibit B-1 Form of Borrowing, Continuation and Conversion
Request
Exhibit B-2 Form of Issuance Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion
Exhibit E Form of Assignment Agreement
Exhibit F-1 Form of Joinder Agreement (Form 1)
Exhibit F-2 Form of Joinder Agreement (Form 2)
Schedule 7.03 Litigation
Schedule 7.08 Multiemployer Plans
Schedule 7.09 Taxes
Schedule 7.14 Environmental Matters
iv
<PAGE>
This 5-YEAR 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 co-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 and the
Issuers provide certain loans and issue certain letters of
credit to the
Borrower;
B. The Lenders and the Issuers have agreed to make such
loans and issue such letters of credit subject to the terms and
conditions
of this Agreement; and
C. In consideration of the mutual covenants and agreements
herein contained and of the loans and commitments hereinafter
referred to,
the parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined Above. As used in this Agreement,
the terms "Administrative Agent," "Borrower," "Lender,"
"Lenders," and
"Scotia Capital" shall have the meanings indicated above.
Section 1.02 Certain Defined Terms. As used herein, the
following terms shall have the following meanings (all terms
defined in
this Article I or in other provisions of this Agreement in the
singular to
have the same meanings when used in the plural and vice
versa):
"Acceleration Event" is defined 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 ($350,000,000, as of the Effective
Date), as the
same may be reduced pursuant to Section 2.04(a).
"Aggregate Loans Outstanding" at any time shall equal the sum
of
the Loans outstanding under this Agreement and the loans
outstanding under
the 364-Day Credit Facility.
"Agreement" shall mean this 5-Year Revolving Credit Agreement,
as
the same may from time to time be amended or supplemented.
"Alternate Base Rate" means, for any day, a rate per annum
equal
to the greater of (a) the Prime Rate in effect on such day, or
(b) the
Federal Funds Rate in effect on such day plus 1/2 of 1%. Any
change in the
Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds
Effective Rate shall be effective from and including the
effective date of
such change in the Prime Rate or the Federal Funds Effective
Rate,
respectively.
"Applicable Lending Office" shall mean, for each Lender and
for
each Type of Loan, the lending office of such Lender (or an
Affiliate of
such Lender) designated for such Type of Loan on the signature
pages hereof
or such other offices of such Lender (or of an Affiliate of such
Lender) as
such Lender may from time to time specify to the Administrative
Agent and
the Borrower as the office by which its Loans of such Type are
to be made
and maintained.
"Applicable Margin" shall mean, for any day, (a) zero percent
(0%)
per annum with respect to Base Rate Loans and (b) with respect
to
Eurodollar Loans, the applicable rate per annum set forth below,
based upon
(i) the ratings by Moody's and S&P, respectively, applicable
on such day to
the Index Debt and (ii) the percentage of the Aggregate 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):
PERCENTAGE OF AGGREGATE LOANS OUTSTANDING
---------------------- ----------------------------
---------------------------
INDEX DEBT: Less Than 50% Greater Than 50%
---------- -
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 and the Letter of Credit Fee, (i) if either Moody's or
S&P shall not
have in effect a rating for the Index Debt (other than by reason
of the
circumstances referred to in the last sentence of this
definition), then
such rating agency shall be deemed to have established a rating
in Category
5; (ii) if the ratings established or deemed to have been
established by
Moody's and S&P for the Index Debt shall fall within
different Categories,
the Applicable Margin shall be based on the higher of the two
ratings;
(iii) if more than one Category falls between the rating levels
established
or deemed to have been established by Moody's and S&P for
the Index Debt,
the Applicable Margin shall be based on the Category above the
lowest
rating; (iv) if the ratings established or deemed to have been
established
by Moody's and S&P for the Index Debt shall be changed
(other than as a
result of a change in the rating system of Moody's or S&P),
such change
shall be effective as of the earlier of the (1) date on which it
is first
announced by the applicable rating agency and (2) the date on
which
Borrower gives notice of such change to the Administrative
Agent; and (iv)
initially, the Applicable Margin shall be determined based upon
a Category
3 Index Debt rating. For the purposes hereof, Borrower shall be
required to
notify the Administrative Agent of such change immediately upon
gaining
knowledge of such change. Each change in the Applicable Margin
shall apply
during the period commencing on the effective date of such
change and
ending on the date immediately preceding the effective date of
the next
such change. If the rating system of Moody's or S&P shall
change, or if
either such rating agency shall cease to be in the business of
rating
corporate debt obligations, the Borrower and the Lenders shall
negotiate in
good faith to amend this definition to reflect such changed
rating system
or the unavailability of ratings from such rating agency and,
pending the
effectiveness of any such amendment, the Applicable Margin shall
be
determined by reference to the rating most recently in effect
prior to such
change or cessation.
"Assignment" shall have the meaning assigned such term in
Section
12.06(b).
"Authorized Officer" means, relative to the Borrower, those of
its
officers, general partners or managing members (as applicable)
whose
signatures and incumbency shall have been certified to the
Administrative
Agent, the Lenders and the Issuers pursuant to Section 6.01(ii),
or
otherwise designated as Authorized Officers for purposes of this
Agreement
in resolutions of the Borrower's board of directors.
"Base Rate Loans" shall mean Loans that bear interest at
rates
based upon the Alternate Base Rate.
"Board" shall have the meaning assigned such term in Section
2.11.
"Business Day" shall mean any day other than a day on which
commercial banks are authorized or required to close in New York
City and,
where such term is used in the definition of "Quarterly Date" or
if such
day relates to a borrowing or continuation of, a payment or
prepayment of
principal of or interest on, or a conversion of or into, or the
Interest
Period for, a Eurodollar Loan or a notice by the Borrower with
respect to
any such borrowing or continuation, payment, prepayment,
conversion or
Interest Period, any day which is also a day on which dealings
in Dollar
deposits are carried out in the London interbank market.
"Cash Collateralize" means, with respect to a Letter of
Credit,
the deposit of immediately available funds into a cash
collateral account
maintained with (or on behalf of) the Administrative Agent on
terms
satisfactory to the Administrative Agent in an amount equal to
the Stated
Amount of such Letter of Credit.
"Category 1" means A- or higher by S&P and A3 or higher
by
Moody's.
"Category 2" means BBB+ by S&P and Baa1 by Moody's.
"Category 3" means BBB by S&P and Baa2 by Moody's.
"Category 4" means BBB- by S&P and Baa3 by Moody's.
"Category 5" means lower than BBB- by S&P and lower than
Baa3 by
Moody's.
"Change in Control" shall have the meaning set forth in
Section
2.11.
"Closing Date" shall mean 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, for any Lender, its obligation to
make
Committed Loans or participate in Letters of Credit up to the
amount of the
Commitment for such Lender on Annex 1 hereto, as modified from
time to time
to reflect any adjustments permitted or required hereby.
"Committed Loan" shall mean a Revolving Loan.
"Consolidated" refers to the consolidation in accordance
with
generally accepted accounting principles of the accounts of the
Borrower
and those of its Subsidiaries which are Consolidated in
accordance with
GAAP.
"Consolidated Subsidiaries" shall mean each Subsidiary of
the
Borrower (whether now existing or hereafter created or acquired)
the
financial statements of which shall be (or should have been)
Consolidated
with the financial statements of the Borrower in accordance with
GAAP.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or
otherwise becomes
or is contingently liable upon (by direct or indirect agreement,
contingent
or otherwise, to provide funds for payment, to supply funds to,
or
otherwise to invest in, a debtor, or otherwise to assure a
creditor against
loss) the Indebtedness of any other Person (other than by
endorsements of
instruments in the course of collection), or guarantees the
payment of
dividends or other distributions upon the capital securities of
any other
Person. The amount of any Person's obligation under any
Contingent
Liability shall (subject to any limitation set forth therein) be
deemed to
be the outstanding principal amount of the debt, obligation or
other
liability guaranteed thereby.
"Continuing Default" is defined 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 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" means 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.
"Disbursement" is defined in Section 2.03(c).
"Disbursement Date" is defined in Section 2.03(c).
"Documentary Letter of Credit" means a letter of credit issued
to
support the payment of goods and services used in the Borrower's
business.
"Dollars" and "$" shall mean lawful money of the United States
of
America.
"Effective Date" shall have the meaning assigned such term
in
Section 12.16.
"Eligible Assignee" means (a) a commercial bank organized
under
the laws of the United States, or any state thereto, and having
a combined
capital and surplus of at least $100,000,000 at the time any
assignment is
made pursuant to Section 12.06; (b) a commercial bank organized
under the
laws of any other country which is a member of the Organization
for
Economic Cooperation and Development (the "OECD"), or a
political
subdivision of any such country, and having a combined capital
and surplus
of at least $100,000,000 at the time any assignment is made
pursuant to
Section 12.06 provided that such bank is acting through a branch
or agency
located in the country in which it is organized or another
country which is
also a member of the OECD; and (c) a Person that is primarily
engaged in
the business of commercial lending and that is (i) a Subsidiary
of a Bank,
(ii) a Subsidiary of a Person of which a Bank is a Subsidiary,
or (iii) a
Person of which a Bank is a Subsidiary; provided that any
Eligible Assignee
must have a minimum senior unsecured credit rating of at least
BBB by S&P
and Baa2 by Moody's.
"Environmental Laws" shall mean any and all Governmental
Requirements pertaining to health or the environment in effect
in any and
all jurisdictions in which the Borrower or any Subsidiary is
conducting or
at any time has conducted business, or where any Property of the
Borrower
or any Subsidiary is located, including without limitation, the
Oil
Pollution Act of 1990 ("OPA"), the Clean Air Act, as amended,
the
Comprehensive Environmental, Response, Compensation, and
Liability Act of
1980 ("CERCLA"), as amended, the Federal Water Pollution Control
Act, as
amended, the Occupational Safety and Health Act of 1970, as
amended, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), as
amended, the
Safe Drinking Water Act, as amended, the Toxic Substances
Control Act, as
amended, the Superfund Amendments and Reauthorization Act of
1986, as
amended, the Hazardous Materials Transportation Act, as amended,
and other
environmental conservation or protection laws. The term "oil"
shall have
the meaning specified in OPA, the terms "hazardous substance"
and "release"
(or "threatened release") have the meanings specified in CERCLA,
and the
terms "solid waste" and "disposal" (or "disposed") have the
meanings
specified in RCRA; provided, however, that (i) in the event
either OPA,
CERCLA or RCRA is amended so as to broaden the meaning of any
term defined
thereby, such broader meaning shall apply subsequent to the
effective date
of such amendment and (ii) to the extent the applicable laws of
the state
in which any Property of the Borrower or any Subsidiary is
located
establish a meaning for "oil," "hazardous substance," "release,"
"solid
waste" or "disposal" which is broader than that specified in
either OPA,
CERCLA or RCRA, such broader meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time and any successor
statute.
"ERISA Affiliate" shall mean each trade or business (whether
or
not incorporated) which together with the Borrower or any
Subsidiary would
be deemed to be a "single employer" within the meaning of
section
4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of
section 414 of
the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described
in
Section 4043 of ERISA and the regulations issued thereunder,
(ii) the
withdrawal of the Borrower, any Subsidiary or any ERISA
Affiliate from a
Plan during a plan year in which it was a "substantial employer"
as defined
in Section 4001(a)(2) of ERISA, (iii) the filing of a notice of
intent to
terminate a Plan or the treatment of a Plan amendment as a
termination
under Section 4041 of ERISA, (iv) the institution of proceedings
to
terminate a Plan by the PBGC or (v) any other event or condition
which
might constitute grounds under Section 4042 of ERISA for the
termination
of, or the appointment of a trustee to administer, any Plan.
"Eurodollar Loans" shall mean Loans the interest rates on
which
are determined on the basis of rates referred to in the
definition of
"Eurodollar Rate".
"Eurodollar Rate" shall mean, for any Eurodollar Loan for
any
Interest Period therefor, the rate per annum (rounded upwards,
if
necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or
any successor page) as the London interbank offered rate for
deposits in
Dollars at approximately 11:00 a.m. (London time) two Business
Days prior
to the first day of such Interest Period for a term comparable
to such
Interest Period. If for any reason such rate is not available,
the term
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest
Period therefor, the rate per annum (rounded upwards, if
necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London
interbank offered rate for deposits in Dollars at approximately
11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest
Period for a term comparable to such Interest Period; provided,
however, if
more than one rate is specified on Reuters Screen LIBO Page, the
applicable
rate shall be the arithmetic mean of all such rates.
"Event of Default" shall have the meaning assigned such term
in
Section 10.01.
"Excess Margin Stock" shall mean that amount by which the value
of
all Margin Stock owned by the Borrower and its Subsidiaries
exceeds 25% of
the value of all of the Property owned by the Borrower and its
Subsidiaries
subject to Section 9.01.
"Exchange Act" shall have the meaning assigned such term in
Section 9.04.
"Existing Agreements" means, collectively, (i) 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, (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 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.
"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.
"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.
"Fronting Fee" has the meaning specified in Section 2.05(b).
"Funded Debt" has the meaning specified in Section 9.02.
"GAAP" shall mean generally accepted accounting principles in
the
United States of America in effect from time to time.
"Governmental Authority" shall include the country, the
state,
county, city and political subdivisions in which any Person or
such
Person's Property is located or which exercises valid
jurisdiction over any
such Person or such Person's Property, and any court, agency,
department,
commission, board, bureau or instrumentality of any of them
including
monetary authorities which exercises valid jurisdiction over any
such
Person or such Person's Property. Unless otherwise specified,
all
references to Governmental Authority herein shall mean a
Governmental
Authority having jurisdiction over, where applicable, the
Borrower, the
Subsidiaries or any of their Property or the Administrative
Agent, any
Lender or any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute,
code,
ordinance, order, determination, rule, regulation, judgment,
decree,
injunction, franchise, permit, certificate, license,
authorization or other
directive or requirement (whether or not having the force of
law),
including, without limitation, Environmental Laws, energy
regulations and
occupational, safety and health standards or controls, of any
Governmental
Authority.
"Granting Lender" has the meaning specified in Section
12.06(g).
"Hedging Agreement" shall mean any commodity agreement or
option
with respect to any commodity agreement (other than sales
contracts entered
into in the normal course of business and not as a hedging
vehicle) or
interest rate or currency swap, cap, floor, collar, forward
agreement or
other exchange or protection agreements or any option with
respect to such
transactions.
"Highest Lawful Rate" shall mean, with respect to each Lender,
the
maximum nonusurious interest rate, if any, that at any time or
from time to
time may be contracted for, taken, reserved, charged or received
on the
Notes or on other Indebtedness under laws applicable to such
Lender which
are presently in effect or, to the extent allowed by law, under
such
applicable laws which may hereafter be in effect and which allow
a higher
maximum nonusurious interest rate than applicable laws now
allow.
"Indebtedness" shall mean any and all amounts owing or to be
owing
by the Borrower to the Administrative Agent and the Lenders in
connection
with this Agreement, the Notes and any Letter of Credit
Outstandings and
all renewals, extensions and/or rearrangements of any of the
above.
"Index Debt" means senior, unsecured, long-term indebtedness
for
borrowed money of the Borrower that is not guaranteed by any
other Person
or subject to any other credit enhancement.
"Initial Funding" shall mean the funding of the initial
Loans
pursuant to Section 6.01 hereof.
"Interest Period" shall mean, (i) with respect to any
Eurodollar
Loan, the period commencing on the date such Eurodollar Loan is
made and
ending on the numerically corresponding day in the first,
second, third or
sixth calendar month thereafter, as the Borrower may select as
provided in
Section 2.02 (or such longer period as may be requested by the
Borrower and
agreed to by all Lenders); and (ii) with respect to any Base
Rate Loan, the
period commencing on the date such Loan is made and ending 90
days
thereafter, except that each Interest Period which commences on
the last
Business Day of a calendar month (or on any day for which there
is no
numerically corresponding day in the appropriate subsequent
calendar month)
shall end on the last Business Day of the appropriate subsequent
calendar
month.
Notwithstanding the foregoing: (i) no Interest Period may
commence
before and end after the Termination Date; (ii) each Interest
Period which
would otherwise end on a day which is not a Business Day shall
end on the
next succeeding Business Day (or, if such next succeeding
Business Day
falls in the next succeeding calendar month, on the next
preceding Business
Day); and (iii) no Interest Period shall have a duration of less
than one
month and, if the Interest Period for any Eurodollar Loans would
otherwise
be for a shorter period, such Loans shall not be available
hereunder.
"Issuance Request" means a Letter of Credit request and
certificate duly executed by an Authorized Officer of the
Borrower,
substantially in the form of Exhibit B-2 hereto.
"Issuer" means the Administrative Agent or any other Lender,
subject to the approval of the Borrower.
"Lenders" shall have the meaning set forth in the preamble
and
shall include the Issuer.
"Lending Office" shall mean the lending office of the
Administrative Agent, presently located at One Liberty Plaza,
New York, New
York 10006, or such other location as designated by the
Administrative
Agent from time to time.
"Letter of Credit" means collectively, Standby Letters of
Credit
and Documentary Letters of Credit.
"Letter of Credit Commitment" means an Issuer's obligation
to
issue Letters of Credit pursuant to Section 2.01(b).
"Letter of Credit Commitment Amount" means, on any date, a
maximum
amount of $350,000,000 as such amount may be permanently reduced
from time
to time pursuant to Section 2.03.
"Letter of Credit Fee" is defined in clause (c) of Section
2.05.
"Letter of Credit Outstandings" means, on any date, an
amount
equal to the sum of (i) the then aggregate amount which is
undrawn and
available under all issued and outstanding Letters of Credit,
and (ii) the
then aggregate amount of all unpaid and outstanding
Reimbursement
Obligations.
"Lien" shall mean any interest in Property securing an
obligation
owed to, or a claim by, a Person other than the owner of the
Property,
whether such interest is based on the common law, statute or
contract, and
whether such obligation or claim is fixed or contingent, and
including but
not limited to the lien or security interest arising from a
mortgage,
encumbrance, pledge, security agreement, conditional sale or
trust receipt
or a lease, consignment or bailment for security purposes.
"Liquidity Balance" means, 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.
"Majority Lenders" shall mean, at any time while no Loans
are
outstanding, Lenders having in excess of fifty percent (50%) of
the
Aggregate Commitments and, at any time while Loans are
outstanding, Lenders
holding in excess of percent (50%) of the outstanding aggregate
principal
amount of the Loans (without regard to any sale by a Lender of
a
participation in any Loan under Section 12.06(c)).
"MAP" shall mean Marathon Ashland Petroleum L.L.C.
"Margin Stock" shall have the meaning set forth in Regulation U
of
the Board of Governors of the Federal Reserve System as the same
may be
amended or interpreted from time to time.
"Material Adverse Effect" shall mean a material adverse change
in
the financial position or results of operations of the Borrower
and its
Subsidiaries taken as a whole.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
section 3(37) or 4001 (a)(3) of ERISA which is, or within the
six calendar
years preceding this Agreement was, contributed to by the
Borrower, a
Subsidiary or an ERISA Affiliate.
"New Ashland Inc." means New EXM Inc., a Kentucky
corporation.
"Notes" shall mean the Notes provided for by Section 2.07,
together with any and all renewals, increases,
rearrangements,
substitutions or modifications thereof.
"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 2.11 hereof.
"Plan" shall mean any employee pension benefit plan, as defined
in
Section 3(2) of ERISA, which (i) is currently or hereafter
sponsored,
maintained or contributed to by the Borrower, any Subsidiary or
an ERISA
Affiliate or (ii) was at any time during the preceding six
calendar years
sponsored, maintained or contributed to, by the Borrower, any
Subsidiary or
an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of
any
Loan or any other amount payable by the Borrower under this
Agreement or
the Notes, a rate per annum during the period commencing on the
date of
occurrence of an Event of Default until such amount is paid in
full or all
Events of Default are cured or waived equal to 2% per annum
above the rate
of interest in effect from time to time including the Applicable
Margin (if
any), but in no event to exceed the Highest Lawful Rate;
provided, however,
for a Eurodollar Loan, the "Post-Default Rate" for such
principal shall be,
for the period commencing on the date of occurrence of an Event
of Default
and ending on the earlier to occur of the last day of the
Interest Period
therefor or the date all Events of Default are cured or waived,
2% per
annum above the interest rate for such Loan as provided in
Section
3.03(a)(ii), but in no event to exceed the Highest Lawful
Rate.
"Prime Rate" shall mean at any time, the rate of interest
then
most recently established by the Administrative Agent in New
York as its
base rate for Dollars loaned in the United States. Such rate is
set by the
Administrative Agent as a general prime rate of interest, taking
into
account such factors as the Administrative Agent may deem
appropriate, it
being understood that many of the Administrative Agent's
commercial or
other loans are priced in relation to such rate, that it is not
necessarily
the lowest or best rate actually charged to any customer and
that the
Administrative Agent may make various commercial or other loans
at rates of
interest having no relationship to such rate.
"Property" shall mean any interest in any kind of property
or
asset, whether real, personal or mixed, or tangible or
intangible.
"Proposed Transactions" means 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.
"Regulation D" shall mean Regulation D of the Board of
Governors
of the Federal Reserve System (or any successor), as the same
may be
amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender,
any
change after the Closing Date in any Governmental Requirement
(including
Regulation D) or the adoption or making after such date of
any
interpretations, directives or requests applying to a class of
lenders
(including such Lender or its Applicable Lending Office) of or
under any
Governmental Requirement (whether or not having the force of
law) by any
Governmental Authority charged with the interpretation or
administration
thereof.
"Reimbursement Obligation" is defined in Section 2.03(d).
"Required Payment" shall have the meaning assigned such term
in
Section 4.04.
"Revolving Loan" shall mean a Loan made pursuant to Section
2.01(a).
"SEC" shall mean the Securities and Exchange Commission or
any
successor Governmental Authority.
"SPC" has the meaning specified in Section 12.06(g).
"Special Entity" shall mean any joint venture, limited
liability
company or partnership, general or limited partnership or any
other type of
partnership or company, other than a corporation, in which the
Borrower or
one or more of its other Subsidiaries is a member, owner,
partner or joint
venturer and owns, directly or indirectly, at least a majority
of the
equity of such entity, but excluding any tax partnerships that
are not
classified as partnerships under state law.
"Standby Fee" shall mean, the applicable rate per annum set
forth
below based upon the ratings by Moody's and S&P,
respectively, applicable
on such date to the Index Debt:
<PAGE>
INDEX DEBT STANDBY FEE
------------------------------ ---------------------------
Category 1 0.110%
Category 2 0.125%
Category 3 0.150%
Category 4 0.175%
Category 5 0.250%
"Standby Letter of Credit" means a letter of credit issued
to
support payment, when due or after default, of obligations based
on money
loaned or advanced, or upon the occurrence or non-occurrence of
another
contingency.
"Stated Amount" means, on any date and with respect to a
particular Letter of Credit, the total amount then available to
be drawn
under such Letter of Credit.
"Stated Expiry Date" is defined in Section 2.03(a).
"Stockholder's Equity" shall mean the common stockholders'
equity
of Borrower and its Subsidiaries on a Consolidated basis (in
the
calculation of which the book value of any treasury shares
carried as an
asset shall be deducted).
"Subsidiary" means, with respect to any Person (the "parent")
at
any date, any corporation, limited liability company,
partnership,
association or other entity the accounts of which would be
consolidated
with those of the parent in the parent's consolidated financial
statements
if such financial statements were prepared in accordance with
GAAP as of
such date, as well as any other corporation, limited liability
company,
partnership, association or other entity (a) of which securities
or other
ownership interests representing more than 50% of the equity or
more than
50% of the ordinary voting power or, in the case of a
partnership, more
than 50% of the general partnership interests are, as of such
date, owned,
controlled or held, or (b) that is, as of such date, otherwise
Controlled,
by the parent or one or more Subsidiaries of the parent or by
the parent
and one or more Subsidiaries of the parent. Unless otherwise
indicated
herein, each reference to the term "Subsidiary" shall mean a
Subsidiary of
the Borrower. Notwithstanding the foregoing, MAP will not be
considered a
Subsidiary of the Borrower.
"Substantial Subsidiary" shall mean, at the time of any
determination thereof, any Subsidiary which as of such time
meets the
definition of "significant subsidiary" contained in Regulation
S-X of the
SEC (as amended from time to time), so long as it is a
Subsidiary, but
whether or not it otherwise meets such definition, Ashland
Paving and
Construction, Inc.
"Taxes" shall have the meaning assigned such term in Section
4.06(a).
"Termination Date" shall mean the earlier to occur of (i)
March
22, 2005 (if the conditions precedent in Section 6.01 have not
occurred on
or prior to such day) or (ii) March 21, 2010 unless the
Aggregate
Commitments are sooner terminated (or Cash Collaterized)
pursuant to
Section 2.04(a) or 10.2 hereof.
"364-Day Credit Facility" shall mean the 364-Day 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.
"Type" shall mean, with respect to any Loan, a Base Rate Loan or
a
Eurodollar Loan.
"Unfunded Pension Liability" means the excess of a Pension
Plan's
accumulated benefit obligations under Financial Accounting
Standard 87,
determined in accordance with the assumptions used by the Plan's
actuary
for funding the Pension Plan pursuant to Section 412 of the Code
for the
applicable plan year, over the current value of that Pension
Plan's assets.
Section 1.03 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
shall be
interpreted, all determinations with respect to accounting
matters
hereunder shall be made, and all financial statements and
certificates and
reports as to financial matters required to be furnished to
the
Administrative Agent or the Lenders hereunder shall be prepared,
in
accordance with GAAP, applied on a basis consistent with the
audited
financial statements of the Borrower referred to in Section 7.02
(except
for changes concurred with by the Borrower's independent
public
accountants).
ARTICLE II
Commitments
Section 2.01 Loans.
(a) Revolving Loans. Each Lender severally agrees, on the terms
of
this Agreement, to make revolving loans (herein called
"Revolving Loans")
to the Borrower during the period from and including (i) the
Effective Date
or (ii) such later date that such Lender becomes a party to this
Agreement,
to but excluding, the Termination Date in an aggregate principal
amount at
any one time outstanding up to but not exceeding the amount of
such
Lender's Commitment as then in effect; provided, however, that
the
aggregate principal amount of all Loans and Letter of Credit
Outstandings
by all Lenders hereunder at any one time outstanding shall not
exceed the
Aggregate Commitments. Subject to the terms of this Agreement,
during the
period from the Effective Date to but excluding, the Termination
Date, the
Borrower may borrow, repay and reborrow the amount described in
this
Section 2.01(a).
(b) Letter of Credit Commitment. From time to time on any
Business
Day occurring from the Effective Date but no later than three
(3) days
prior to the Termination Date, the relevant Issuer agrees that
it will:
(i) issue one or more Standby Letters of Credit or
Documentary Letters of Credit for the account of the Borrower
in
the Stated Amount requested by the Borrower on such day; or
(ii) extend the Stated Expiry Date of an existing Standby
Letter of Credit previously issued hereunder.
No Issuer shall be permitted or required to issue any Letter
of
Credit if, after giving effect thereto, (i) the aggregate amount
of all
Letter of Credit Outstandings would exceed the Letter of Credit
Commitment
Amount or (ii) the sum of the aggregate amount of all Letter of
Credit
Outstandings plus the aggregate principal amount of all Loans
then
outstanding would exceed the Aggregate Commitments.
(c) Limitation on Types of Loans. Subject to the other terms
and
provisions of this Agreement, at the option of the Borrower, the
Committed
Loans may be Base Rate Loans or Eurodollar Loans; provided that,
without
the prior written consent of the Majority Lenders, with respect
to
Committed Loans, no more than five (5) Eurodollar Loans may be
outstanding
at any time to any Lender.
Section 2.02 Borrowings, Continuations and Conversions.
(a) Borrowings. The Borrower shall give the Administrative
Agent
(which shall promptly notify the Lenders) advance notice as
hereinafter
provided of each borrowing of Committed Loans hereunder, which
shall
specify the aggregate amount of such borrowing, the Type and the
date
(which shall be a Business Day) of such Loans to be borrowed and
(in the
case of Eurodollar Loans) the duration of the Interest Period
therefor.
(b) Minimum Amounts. If the initial borrowing consists in whole
or
in part of Eurodollar Loans, such Eurodollar Loans shall be in
amounts of
at least $5,000,000 or any whole multiple of $1,000,000 in
excess thereof.
(c) Notices. All Committed Loan borrowings, continuations
and
conversions require advance written notice to the Administrative
Agent
(which shall promptly notify the Lenders) in the form of Exhibit
B-1 (or
telephonic notice promptly confirmed by such a written notice),
which in
each case shall be irrevocable, from the Borrower to be received
by the
Administrative Agent not later than 11:00 a.m. New York City
time on the
Business Day of each Base Rate Loan borrowing and three Business
Days prior
to the date of each Eurodollar Loan borrowing, continuation or
conversion.
Without in any way limiting the Borrower's obligation to confirm
in writing
any telephonic notice, the Administrative Agent may act without
liability
upon the basis of telephonic notice believed by the
Administrative Agent in
good faith to be from the Borrower prior to receipt of
written
confirmation. In each such case, the Borrower hereby waives the
right to
dispute the Administrative Agent's record of the terms of such
telephonic
notice except in the case of gross negligence or willful
misconduct by the
Administrative Agent.
(d) Continuation Options. Subject to the provisions made in
this
Section 2.02(d), the Borrower may elect to continue as a new
Loan all or
any part of any Committed Loan beyond the expiration of the then
current
Interest Period relating thereto by giving advance notice as
provided in
Section 2.02(c) to the Administrative Agent (which shall
promptly notify
the Lenders) of such election, specifying the amount of such
Loan to be
continued as a new Committed Loan, the type of Loan and the
Interest Period
therefor. In the absence of such a timely and proper election,
the Borrower
shall be deemed to have elected to continue any such Loan as a
Base Rate
Loan (if such Committed Loan is a Eurodollar Loan, pursuant to a
conversion
as set forth in Section 2.02(e)). All or any part of any
Committed Loan may
be continued as provided herein, provided that (i) with respect
to a
Eurodollar Loan continued as a new Eurodollar Loan, any
continuation of any
such Loan shall be (as to each Loan as continued for an
applicable Interest
Period) in amounts of at least $5,000,000 or any whole multiple
of
$1,000,000 in excess thereof and (ii) no Default shall have
occurred and be
continuing.
(e) Conversion Options. The Borrower may elect to convert all
or
any part of any Committed Loan which is a Eurodollar Loan on the
last day
of the then current Interest Period relating thereto to a Base
Rate Loan by
giving advance notice as provided in Section 2.02(c) to the
Administrative
Agent (which shall promptly notify the Lenders) of such
election. Subject
to the provisions made in this Section 2.02(e), the Borrower may
elect to
convert all or any part of any Committed Loan which is a Base
Rate Loan at
any time and from time to time to a Eurodollar Loan by giving
advance
notice as provided in Section 2.02(c) to the Administrative
Agent (which
shall promptly notify the Lenders) of such election. All or any
part of any
outstanding Committed Loan may be converted as provided herein,
provided
that (i) any conversion of any Base Rate Loan into a Eurodollar
Loan shall
be (as to each such Loan into which there is a conversion for an
applicable
Interest Period) in amounts of at least $5,000,000 or any whole
multiple of
$1,000,000 in excess thereof and (ii) no Default shall have
occurred and be
continuing. Each Committed Loan that is converted hereunder
shall be a new
Committed Loan, and the Interest Period applicable to such
converted
Committed Loan shall terminate as of the effective date of such
conversion.
(f) Advances. Not later than 1:00 p.m. New York City time on
the
date specified for each borrowing hereunder, each Lender shall
make
available the amount of the Loan to be made by it on such date
to the
Administrative Agent, to an account which the Administrative
Agent shall
specify, in immediately available funds, for the account of the
Borrower.
The amounts so received by the Administrative Agent shall,
subject to the
terms and conditions of this Agreement, promptly be made
available to the
Borrower by depositing the same, in immediately available funds,
in an
account of the Borrower, designated by the Borrower and
maintained at the
Lending Office.
Section 2.03 Issuance Procedures, Participations,
Disbursements and Reimbursement.
(a) By delivering to the Administrative Agent an Issuance
Request
in the form of Exhibit B-2 hereto, on or before 10:00 a.m. on a
Business
Day, the Borrower may from time to time irrevocably request on
not less
than three (3) nor more than ten (10) Business Days' notice, in
the case of
an initial issuance of a Letter of Credit and not less than
three (3)
Business Days' prior notice, in the case of a request for the
extension of
the Stated Expiry Date of a Standby Letter of Credit (in each
case, unless
a shorter notice period is agreed to by the Issuer, in its
sole
discretion), that an Issuer issue, or with respect to a Standby
Letter of
Credit, extend the Stated Expiry Date, a Letter of Credit in
such form as
may be requested by the Borrower and approved by such Issuer,
solely for
the purposes described in Section 7.07. Each Letter of Credit
shall by its
terms be stated to expire on a date (its "Stated Expiry Date")
no later
than the earlier to occur of (i) the Termination Date, (ii) in
the case of
a Standby Letter of Credit (unless otherwise agreed to by an
Issuer, in its
sole discretion), one (1) year from the date of its issuance or
(iii) in
the case of a Documentary Letter of Credit, six (6) months from
the date of
its issuance. Each Issuer will make available to the beneficiary
thereof
the original of the Letter of Credit which it issues.
(b) Upon the issuance of each Letter of Credit, and without
further action, each Lender (other than the Issuer) shall be
deemed to have
irrevocably purchased, to the extent of its Percentage Share,
a
participation interest in such Letter of Credit (including the
Contingent
Liability and any Reimbursement Obligation with respect
thereto), and such
Lender shall, to the extent of its Percentage Share, be
responsible for
reimbursing within one (1) Business Day of receiving notice from
the Issuer
for Reimbursement Obligations which have not been reimbursed by
the
Borrower in accordance with Section 2.03(c) (with the terms of
this Section
surviving the termination of this Agreement). The issuing Lender
shall, to
the extent of its Percentage Share, be entitled to receive a
ratable
portion of the Letter of Credit fees payable pursuant to Section
2.05(c)
with respect to each Letter of Credit. To the extent that any
Lender has
reimbursed any Issuer for a Disbursement, such Lender shall be
entitled to
receive its ratable portion of any amounts subsequently received
(from the
Borrower or otherwise) in respect of such Disbursement.
(c) An Issuer will notify the Borrower and the
Administrative
Agent promptly of the presentment for payment of any Letter of
Credit
issued by such Issuer, together with notice of the date (the
"Disbursement
Date") such payment shall be made (each such payment, a
"Disbursement").
Subject to the terms and provisions of such Letter of Credit and
this
Agreement, the applicable Issuer shall make such payment to the
beneficiary
(or its designee) of such Letter of Credit. On or prior to 11:00
a.m. on
the first Business Day following the Disbursement Date, the
Borrower will
reimburse the Administrative Agent, for the account of the
applicable
Issuer, for all amounts which such Issuer has disbursed under
such Letter
of Credit, together with interest thereon at a rate per annum
equal to the
rate per annum then in effect for Base Rate Loans (with the then
Applicable
Margin for Revolving Loans accruing on such amount) pursuant to
Section
3.03 for the period from the Disbursement Date through the date
of such
reimbursement. Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in
any
separate application for any Letter of Credit, the Borrower
hereby
acknowledges and agrees that it shall be obligated to reimburse
the
applicable Issuer upon each Disbursement of a Letter of Credit,
and it
shall be deemed to be the obligor for purposes of each such
Letter of
Credit issued hereunder.
(d) The obligation (a "Reimbursement Obligation") of the
Borrower
under Section 2.03(c) to reimburse an Issuer with respect to
each
Disbursement (including interest thereon), and, upon the failure
of the
Borrower to reimburse an Issuer, each Lender's obligation under
Section
2.03(b) to reimburse an Issuer, shall be absolute and
unconditional under
any and all circumstances and irrespective of any setoff,
counterclaim or
defense to payment which the Borrower or such Lender, as the
case may be,
may have or have had against such Issuer or any Lender,
including any
defense based upon the failure of any Disbursement to conform to
the terms
of the applicable Letter of Credit (if, in such Issuer's good
faith
opinion, such Disbursement is determined to be appropriate) or
any
non-application or misapplication by the beneficiary of the
proceeds of
such Letter of Credit; provided that, after paying in full
its
Reimbursement Obligation hereunder, nothing herein shall
adversely affect
the right of the Borrower or such Lender, as the case may be, to
commence
any proceeding against an Issuer for any wrongful Disbursement
made by such
Issuer under a Letter of Credit as a result of acts or
omissions
constituting gross negligence or willful misconduct on the part
of such
Issuer.
(e) Upon the occurrence and during the continuation of any
Default
under Section 10.01 or upon notification by the Administrative
Agent
(acting at the direction of the Required Lenders) to the
Borrower of its
obligations under this Section, following the occurrence and
during the
continuation of any other Event of Default,
(i) the aggregate Stated Amount of all Letters of Credit
shall, without demand upon or notice to the Borrower or any
other Person,
be deemed to have been paid or disbursed by the Issuers of such
Letters of
Credit (notwithstanding that such amount may not in fact have
been paid or
disbursed); and
(ii) the Borrower shall be immediately obligated to
reimburse the Issuers for the amount deemed to have been so paid
or
disbursed by such Issuers.
Amounts payable by the Borrower pursuant to this Section shall
be
deposited in immediately available funds with the Administrative
Agent and
held as collateral security for the Reimbursement Obligations.
When all
Defaults giving rise to the deemed disbursements under this
Section have
been cured or waived the Administrative Agent shall return to
the Borrower
all amounts then on deposit with the Administrative Agent
pursuant to this
Section which have not been applied to the satisfaction of
the
Reimbursement Obligations.
(f) The Borrower, and to the extent set forth in Section
2.03(b),
each Revolving Loan Lender shall assume all risks of the acts,
omissions or
misuse of any Letter of Credit by the beneficiary thereof. No
Issuer
(except to the extent of its own gross negligence or willful
misconduct)
shall be responsible for:
(i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any
document
submitted by any party in connection with the application for
and issuance
of a Letter of Credit, even if it should in fact prove to be in
any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged;
(ii) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring or
assigning or
purporting to transfer or assign a Letter of Credit or the
rights or
benefits thereunder or the proceeds thereof in whole or in part,
which may
prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter of
Credit;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex
or otherwise; or
(v) any loss or delay in the transmission or otherwise of
any document or draft required in order to make a Disbursement
under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the
vesting of any of
the rights or powers granted to any Issuer or any Lender
hereunder.
Section 2.04 Changes of Commitments.
(a) The Borrower shall have the right to terminate or to
reduce
the amount of the Aggregate Commitments at any time or from time
to time
upon not less than three (3) Business Days' prior notice to
the
Administrative Agent (which shall promptly notify the Lenders)
of each such
termination or reduction, which notice shall specify the
effective date
thereof and the amount of any such reduction (which shall not be
less than
$10,000,000 or any whole multiple of $1,000,000 in excess
thereof) and
shall be irrevocable and effective only upon receipt by the
Administrative
Agent.
(b) The Aggregate Commitments once terminated or reduced may
not
be reinstated.
Section 2.05 Fees.
(a) The Borrower shall pay to the Administrative Agent for
the
account of each Lender in accordance with its Percentage Share a
fee equal
to the Standby Fee multiplied by the average daily unused
portion of the
Aggregate Commitments for the period from and including the
Closing Date up
to but excluding either the earlier of the date the Aggregate
Commitments
are terminated or the Termination Date. The accrued Standby Fees
shall be
payable quarterly in arrears on each Quarterly Date, on the
Termination
Date, and thereafter on demand. The Standby Fee shall be
calculated
quarterly in arrears, and if there is any change in the Standby
Fee during
any quarter, the average daily unused portion shall be computed
and
multiplied by the Standby Fee separately for each period during
such
quarter that the Standby Fee was in effect. The Standby Fee
shall accrue at
all times, including at any time when one or more conditions in
Article VI
is not met.
(b) The Borrower shall pay to the Administrative Agent, for
the
pro rata account of the applicable Issuer, a Letter of Credit
fronting fee
(the "Fronting Fee"), in an amount to be agreed upon by such
Issuer and the
Borrower at the time of the issuance of each Letter of Credit,
payable
quarterly in arrears following the issuance of such Letter of
Credit and
(if earlier), on the date of any termination or expiration of
such Letter
of Credit. In addition, each Issuer's customary administrative,
issuance,
amendment, payment and negotiation fees shall be payable to such
Issuer,
for its own account, on the dates and in the amounts from time
to time
notified to the Borrower by such Issuer.
(c) The Borrower agrees to pay to the Administrative Agent,
for
the pro rata account of each Lender (including the applicable
Issuer, in
its capacity as a Lender), a Letter of Credit fee (the "Letter
of Credit
Fee") in an amount equal to the then effective Applicable Margin
for
Eurodollar Loans, payable quarterly in arrears following the
issuance of
such Letter of Credit and (if earlier), on the date of any
termination or
expiration of such Letter of Credit.
(d) The Borrower shall pay to the Administrative Agent for
its
account such other fees as are set forth in the Fee Letter on
the dates
specified therein to the extent not paid prior to the Closing
Date.
Section 2.06 Several Obligations. The failure of any Lender
to make any Loan to be made by it on the date specified therefor
shall not
relieve any other Lender of its obligation to make its Loan on
such date,
but no Lender shall be responsible for the failure of any other
Lender to
make a Loan to be made by such other Lender.
Section 2.07 Notes. The Committed Loans made by each Lender
shall be evidenced by a single promissory note of the Borrower
in
substantially the form of Exhibit A hereto, dated (i) March 21,
2005, or
(ii) the effective date of an Assignment pursuant to Section
12.06(b),
payable to the order of such Lender in a principal amount equal
to its
Commitment as in effect and otherwise duly completed. The date,
amount,
Type, interest rate and Interest Period of each Loan made by
each Lender,
and all payments made on account of the principal thereof, shall
be
recorded by such Lender on its books for its Notes, and, prior
to any
transfer, may be endorsed by such Lender on a schedule attached
to such
Notes or any continuation thereof or on any separate record
maintained by
such Lender. Failure to make any such notation or to attach a
schedule
shall not affect any Lender's or the Borrower's rights or
obligations in
respect of such Loans or affect the validity of such transfer by
any Lender
of its Notes.
Section 2.08 Prepayments.
(a) The Borrower may prepay the Base Rate Loans upon not less
than
one (1) Business Days' prior notice to the Administrative Agent
(which
shall promptly notify the Lenders), which notice shall specify
the
prepayment date (which shall be a Business Day) and the amount
of the
prepayment (which shall be at least $1,000,000 or the remaining
aggregate
principal balance outstanding on the Notes) and shall be
irrevocable and
effective only upon receipt by the Administrative Agent,
provided that
interest on the principal prepaid, accrued to the prepayment
date, shall be
paid on the prepayment date. The Borrower may prepay Committed
Loans which
are Eurodollar Loans upon not less than two (2) Business Days'
prior notice
to the Administrative Agent (which shall promptly notify the
Lenders) and
otherwise on the same condition as for Base Rate Loans and in
addition such
prepayments of Eurodollar Loans shall be subject to the terms of
Section
5.05 and, for each Eurodollar Loan, shall be in an amount equal
to all of
such Eurodollar Loans for the Interest Period prepaid.
(b) If, after giving effect to any termination or reduction of
the
Aggregate Commitments pursuant to Section 2.04(b), the
outstanding
aggregate principal amount of (i) the Loans and (ii) the
aggregate amount
of all Letter of Credit Outstandings exceeds the Aggregate
Commitments, the
Borrower shall prepay the Loans on the date of such termination
or
reduction in an aggregate principal amount equal to the excess,
together
with interest on the principal amount paid accrued to the date
of such
prepayment.
(c) Prepayments permitted or required under this Section
2.08
shall be without premium or penalty, except as required under
Section 5.05
for prepayment of Eurodollar Loans. Any prepayments on the
Revolving Loans
may be reborrowed subject to the then effective Aggregate
Commitments and
the other provisions of this Agreement.
Section 2.09 Lending Offices. The Loans of each Type made by
each Lender shall be made and maintained at such Lender's
Applicable
Lending Office for Loans of such Type.
Section 2.10 [Reserved].
Section 2.11 Change in Control. If a Change in Control shall
occur then (a) the Borrower will, within five Business Days
after the
occurrence thereof, give each Lender notice thereof and shall
describe in
reasonable detail the facts and circumstances giving rise
thereto and (b)
each Lender may, by notice to the Borrower and the
Administrative Agent
given not later than 45 days after the occurrence of such Change
in
Control, terminate its Commitments, which shall be terminated
upon the date
specified in such notice, which date shall be no earlier than
the fifteenth
day after such notice; all principal, accrued and unpaid
interest and all
unpaid fees and other amounts owing hereunder and under the
Notes of such
Lender shall be due and payable on such date.
For purposes of this Section, a "Change in Control" shall be
deemed to occur (1) upon approval of the shareholders of the
Borrower (or
if such approval is not required, upon the approval of the
Borrower's Board
of Directors (the "Board") of (A) any consolidation or merger of
the
Borrower, other than a consolidation or merger of the Borrower
into or with
a direct or indirect wholly-owned Subsidiary, in which the
Borrower is not
the continuing or surviving corporation or pursuant to which
shares of
common stock of the Borrower would be converted into cash,
securities or
other property other than a merger in which the holders of
common stock of
the Borrower immediately prior to the merger will have the
same
proportionate ownership of common stock of the surviving
corporation
immediately after the merger, (B) any sale, lease, exchange, or
other
transfer (in one transaction or a series of related
transactions) of all or
substantially all the assets of the Borrower, or (C) adoption of
any plan
or proposal for the liquidation or dissolution of the Borrower,
(2) when
any person (as defined in Section 3(a)(9) or 13(d) of the
Exchange Act),
other than the Borrower or any subsidiary or employee benefit
plan or trust
maintained by the Borrower, shall become the beneficial owner
(as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than
15% of the Borrower's common stock outstanding at the time,
without the
approval of the Board, or (3) at any time during a period of
two
consecutive years, individuals who at the beginning of such
period
constituted the Board shall cease for any reason to constitute
at least a
majority thereof, unless the election or the nomination for
election by the
Borrower's shareholders of each new director during such
two-year period
was approved by a vote of at least two-thirds of the directors
then still
in office who were directors at the beginning of such two-year
period.
Notwithstanding the foregoing, 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.
Section 3.02 Maturity of Loans. Each Loan borrowed hereunder
shall mature, and the principal amount thereof shall be due and
payable, on
the last day of the Interest Period applicable to such Loan.
Section 3.03 Interest.
(a) Interest Rates. The Borrower will pay to the
Administrative
Agent, for the account of each Lender, interest on the unpaid
principal
amount of each Loan made by such Lender for the period
commencing on the
date such Loan is made to but excluding the date such Loan shall
be paid in
full, at the following rates per annum:
(i) if such a Loan is a Base Rate Loan, the Alternate
Base Rate (as in effect from time to time) plus the Applicable
Margin, but
in no event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a Eurodollar Loan that is a
Committed Loan, for each Interest Period relating thereto, the
Eurodollar
Rate for such Loan plus the Applicable Margin, but in no event
to exceed
the Highest Lawful Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the
Borrower
will pay to the Administrative Agent, for the account of each
Lender
interest at the applicable Post-Default Rate on any principal of
any Loan
made by such Lender, and (to the fullest extent permitted by
law) on any
other amount payable by the Borrower, hereunder or under any
Note held by
such Lender to or for account of such Lender, for the period
commencing on
the date of an Event of Default until the same is paid in full
or all
Events of Default are cured or waived.
(c) Due Dates. Accrued interest on Base Rate Loans shall be
payable on the last day of the Interest Period applicable
thereto, and
accrued interest on each Eurodollar Loan shall be payable on the
last day
of the Interest Period therefor and, if such Interest Period is
longer than
three months at three-month intervals following the first day of
such
Interest Period, except that interest payable at the
Post-Default Rate
shall be payable from time to time on demand and interest on any
Eurodollar
Loan that is converted into a Base Rate Loan (pursuant to
Section 5.04)
shall be payable on the date of conversion (but only to the
extent so
converted).
(d) Determination of Rates. Promptly after the determination
of
any interest rate provided for herein or any change therein,
the
Administrative Agent shall notify the Lenders to which such
interest is
payable and the Borrower thereof. Each determination by the
Administrative
Agent of an interest rate or fee hereunder shall, except in
cases of
manifest error, be final, conclusive and binding on the
parties.
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments. Except to the extent otherwise
provided herein, all payments of principal, interest and other
amounts to
be made by the Borrower hereunder shall be initiated in Dollars,
in
immediately available funds, to the Administrative Agent at such
account as
the Administrative Agent shall specify by notice to the Borrower
from time
to time, not later than 11:00 a.m. New York City time on the
date on which
such payments shall become due (each such payment made after
such time on
such due date to be deemed to have been made on the next
succeeding
Business Day). Such payments shall be made without (to the
fullest extent
permitted by applicable law) defense, set-off or counterclaim.
Each payment
received by the Administrative Agent under this Agreement on any
Note for
account of a Lender shall be paid promptly to such Lender pro
rata in
accordance with such Lender's Percentage Share in immediately
available
funds. Except as provided in clause (ii) of the second paragraph
of the
definition of "Interest Period," if the due date of any payment
under this
Agreement or any Note would otherwise fall on a day which is not
a Business
Day such date shall be extended to the next succeeding Business
Day and
interest shall be payable for any principal so extended for the
period of
such extension. At the time of each payment to the
Administrative Agent of
any principal of or interest on any borrowing, the Borrower
shall notify
the Administrative Agent of the Loans to which such payment
shall apply. In
the absence of such notice the Administrative Agent may specify
the Loans
to which such payment shall apply, but to the extent possible
such payment
or prepayment will be applied first to the Loans comprised of
Base Rate
Loans.
Section 4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein each Lender agrees that: (a) each
borrowing from
the Lenders under Section 2.01 and each continuation and
conversion under
Section 2.02 shall be made from the Lenders pro rata in
accordance with
their Percentage Share, each payment of the Standby Fee under
Section
2.05(a) and amounts owing to the Lenders (including amounts paid
in respect
of Reimbursement Obligations, to the extent actually
participated in by a
Lender) shall be made for account of the Lenders pro rata in
accordance
with their Percentage Shares and each termination or reduction
of the
amount of the Aggregate Commitments under Section 2.04(a) shall
be applied
to the Commitment of each Lender, pro rata according to the
amounts of its
respective Percentage Share; (b) except during the continuance
of an Event
of Default, each payment of principal of Committed Loans, the
aggregate
Reimbursement Obligations then owing and the Cash
Collaterization for
contingent liabilities under Letter of Outstandings by the
Borrower shall
be made for account of the Lenders pro rata in accordance with
the
respective unpaid principal amount of the Type of Loans so paid
as
designated pursuant to Section 4.01; (c) except during the
continuance of
an Event of Default, each payment of interest on Committed Loans
by the
Borrower shall be made for account of the Lenders pro rata in
accordance
with the amounts of interest due and payable to the respective
Lenders on
the Type of Loans to which such interest payment is to be
applied as
designated pursuant to Section 4.01; and (d) during the
continuance of an
Event of Default each payment on the Loans shall be applied as
provided in
Section 10.02(c).
Section 4.03 Computations. Interest on Eurodollar Loans and
fees, including any Letter of Credit fees, shall be computed on
the basis
of a year of 360 days and actual days elapsed (including the
first day but
excluding the last day) occurring in the period for which such
interest is
payable, unless such calculation would exceed the Highest Lawful
Rate, in
which case interest shall be calculated on the per annum basis
of a year of
365 or 366 days, as the case may be. Interest on Base Rate Loans
shall be
computed on the basis of a year of 365 or 366 days, as the case
may be, and
actual days elapsed (including the first day but excluding the
last day)
occurring in the period for which such interest is payable.
Section 4.04 Non-receipt of Funds by the Administrative
Agent. Unless the Administrative Agent shall have been notified
by a Lender
or the Borrower prior to the date on which such notifying party
is
scheduled to make payment to the Administrative Agent (in the
case of a
Lender) of the proceeds of a Loan or (in the case of the
Borrower) a
payment to the Administrative Agent for account of one or more
of the
Lenders hereunder (such payment being herein called the
"Required
Payment"), which notice shall be effective upon receipt, that it
does not
intend to make the Required Payment to the Administrative Agent,
the
Administrative Agent may assume that the Required Payment has
been made and
may, in reliance upon such assumption (but shall not be required
to), make
the amount thereof available to the intended recipient(s) on
such date and,
if such Lender or the Borrower (as the case may be) has not in
fact made
the Required Payment to the Administrative Agent, the
recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the
amount so
made available together with interest thereon in respect of each
day during
the period commencing on the date such amount was so made
available by the
Administrative Agent until but excluding the date the
Administrative Agent
recovers such amount at a rate per annum which, for any Lender
as
recipient, will be equal to the Federal Funds Rate, and for the
Borrower as
recipient, will be equal to the Base Rate plus the Applicable
Margin.
Section 4.05 Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or
counterclaim a Lender
may otherwise have, each Lender shall have the right and be
entitled, at
its option, to offset balances held by it or by any of its
Affiliates for
account of the Borrower or any Subsidiary at any of its offices,
in Dollars
or in any other currency, against any principal of or interest
on any of
such Lender's Loans, or any other amount payable to such Lender
hereunder,
which is not paid when due (regardless of whether such balances
are then
due to the Borrower), in which case it shall promptly notify the
Borrower
and the Administrative Agent thereof, provided that such
Lender's failure
to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of
or
interest on any Loan made by it to the Borrower under this
Agreement
through the exercise of any right of set-off, banker's lien or
counterclaim
or similar right or otherwise, and, as a result of such payment,
such
Lender shall have received a greater percentage of the principal
or
interest (or reimbursement) then due hereunder by the Borrower
to such
Lender than the percentage received by any other Lenders, it
shall promptly
(i) notify the Administrative Agent and each other Lender
thereof and (ii)
purchase from such other Lenders participations in (or, if and
to the
extent specified by such Lender, direct interests in) the Loans
made by
such other Lenders (or in interest due thereon, as the case may
be) in such
amounts, and make such other adjustments from time to time as
shall be
equitable, to the end that all the Lenders shall share the
benefit of such
excess payment (net of any expenses which may be incurred by
such Lender in
obtaining or preserving such excess payment) pro rata in
accordance with
the unpaid principal and/or interest on the Loans held by each
of the
Lenders. To such end all the Lenders shall make appropriate
adjustments
among themselves (by the resale of participations sold or
otherwise) if
such payment is rescinded or must otherwise be restored. The
Borrower
agrees that any Lender so purchasing a participation (or direct
interest)
in the Loans made by other Lenders (or in interest due thereon,
as the case
may be) may exercise all rights of set-off, banker's lien,
counterclaim or
similar rights with respect to such participation as fully as if
such
Lender were a direct holder of Loans in the amount of such
participation.
Nothing contained herein shall require any Lender to exercise
any such
right or shall affect the right of any Lender to exercise, and
retain the
benefits of exercising, any such right with respect to any
other
indebtedness or obligation of the Borrower. If under any
applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured
claim in lieu of a set-off to which this Section 4.05 applies,
such Lender
shall, to the extent practicable, exercise its rights in respect
of such
secured claim in a manner consistent with the rights of the
Lenders
entitled under this Section 4.05 to share the benefits of any
recovery on
such secured claim.
Section 4.06 Taxes.
(a) Payments Free and Clear. Any and all payments by the
Borrower
hereunder shall be made, in accordance with Section 4.01, free
and clear of
and without deduction for any and all present or future taxes,
levies,
imposts, deductions, charges or withholdings, and all
liabilities with
respect thereto, excluding, in the case of each Lender and
the
Administrative Agent, taxes imposed on their income and
franchise or
similar taxes imposed on them, by (i) any jurisdiction (or
political
subdivision thereof) of which the Administrative Agent or such
Lender, as
the case may be, is a citizen or resident or in which such
Lender has an
Applicable Lending Office, (ii) the jurisdiction (or any
political
subdivision thereof) in which the Administrative Agent or such
Lender is
organized, or (iii) any jurisdiction (or political subdivision
thereof) in
which such Lender, the Administrative Agent is presently doing
business in
which taxes are imposed solely as a result of doing business in
such
jurisdiction (all such non-excluded taxes, levies, imposts,
deductions,
charges, withholdings and liabilities being hereinafter referred
to as
"Taxes"). If the Borrower shall be required by law to deduct any
Taxes from
or in respect of any sum payable hereunder to the Lenders or
the
Administrative Agent, (A) the sum payable shall be increased by
the amount
necessary so that after making all required deductions
(including
deductions applicable to additional sums payable under this
Section 4.06)
such Lender, the Administrative Agent (as the case may be) shall
receive an
amount equal to the sum it would have received had no such
deductions been
made, (B) the Borrower shall make such deductions and (C) the
Borrower
shall pay the full amount deducted to the relevant taxing
authority or
other Governmental Authority in accordance with applicable
law.
(b) Other Taxes. In addition, to the fullest extent permitted
by
applicable law, the Borrower agrees to pay any present or future
stamp or
documentary taxes or any other excise or property taxes, charges
or similar
levies that arise from any payment made hereunder or from the
execution,
delivery or registration of, or otherwise with respect to, this
Agreement
or any Assignment (hereinafter referred to as "Other
Taxes").
(c) Indemnification. To the fullest extent permitted by
applicable
law, the Borrower will indemnify each Lender and the
Administrative Agent
for the full amount of Taxes and Other Taxes (including, but not
limited
to, any Taxes or Other Taxes imposed by any Governmental
Authority on
amounts payable under this Section 4.06) paid by such Lender or
the
Administrative Agent (on their behalf or on behalf of any
Lender), as the
case may be, and any liability (including penalties, interest
and expenses)
arising therefrom or with respect thereto, whether or not such
Taxes or
Other Taxes were correctly or legally asserted unless the
payment of such
Taxes was not correctly or legally asserted and such Lender's
or
Administrative Agent's payment of such Taxes or Other Taxes was
the result
of its gross negligence or willful misconduct. Any payment
pursuant to such
indemnification shall be made within thirty (30) days after the
date any
Lender, the Administrative Agent, as the case may be, makes
written demand
therefor. If any Lender or the Administrative Agent receives a
refund or
credit in respect of any Taxes or Other Taxes for which such
Lender, the
Administrative Agent has received payment from the Borrower it
shall
promptly notify the Borrower of such refund or credit and shall,
if no
Default has occurred and is continuing, within thirty (30) days
after
receipt of a request by the Borrower (or promptly upon receipt,
if the
Borrower has requested application for such refund or credit
pursuant
hereto), pay an amount equal to such refund or credit to the
Borrower
without interest (but with any interest so refunded or
credited), provided
that the Borrower, upon the request of such Lender, the
Administrative
Agent, agrees to return such refund or credit (plus penalties,
interest or
other charges) to such Lender or the Administrative Agent in the
event such
Lender or the Administrative Agent is required to repay such
refund or
credit. Nothing in this Section 4.06 (c) shall oblige any Lender
to
disclose to the Borrower or any other person any information
regarding its
tax affairs or tax computations or interfere with the right of
any Lender
to arrange its tax affairs in whatever manner it thinks fit.
(d) Lender Statements.
(i) Each Lender represents that it is either (1) a
corporation or banking association organized under the laws of
the United
States of America or any state thereof or (2) it is entitled to
complete
exemption from United States withholding tax imposed on or with
respect to
any payments, including fees, to be made to it pursuant to this
Agreement
(A) under an applicable provision of a tax convention to which
the United
States of America is a party or (B) because it is acting through
a branch,
agency or office in the United States of America and any payment
to be
received by it hereunder is effectively connected with a trade
or business
in the United States of America. Each Lender that is not a
corporation or
banking association organized under the laws of the United
States of
America or any state thereof agrees to provide to the Borrower
and the
Administrative Agent on the Closing Date, or on the date of its
delivery of
the Assignment pursuant to which it becomes a Lender, and at
such other
times as required by United States law or as the Borrower or
the
Administrative Agent shall reasonably request, two accurate and
complete
original signed copies of either (A) Internal Revenue Service
Form W-8ECI
(or successor form) certifying that all payments to be made to
it hereunder
will be effectively connected to a United States trade or
business (the
"Form W-8ECI Certification") or (B) Internal Revenue Service
Form W-8BEN
(or successor form) certifying that it is entitled to the
benefit of a
provision of a tax convention to which the United States of
America is a
party which completely exempts from United States withholding
tax all
payments to be made to it hereunder (the "Form W-8BEN
Certification"). In
addition, each Lender agrees that if it previously filed a Form
W-8ECI
Certification, it will deliver to the Borrower and the
Administrative Agent
a new Form W-8ECI Certification prior to the first payment date
occurring
in each of its subsequent taxable years; and if it previously
filed a Form
W-8BEN Certification, it will deliver to the Borrower and
the
Administrative Agent a new certification prior to the first
payment date
falling in the third year following the previous filing of
such
certification. Each Lender also agrees to deliver to the
Borrower and the
Administrative Agent such other or supplemental forms as may at
any time be
required as a result of changes in applicable law or regulation
in order to
confirm or maintain in effect its entitlement to exemption from
United
States withholding tax on any payments hereunder, provided that
the
circumstances of such Lender at the relevant time and applicable
laws
permit it to do so. If a Lender determines, as a result of any
change in
either (i) a Governmental Requirement or (ii) its circumstances,
that it is
unable to submit any form or certificate that it is obligated to
submit
pursuant to this Section 4.06, or that it is required to
withdraw or cancel
any such form or certificate previously submitted, it shall
promptly notify
the Borrower and the Administrative Agent of such fact; and, if
as a result
of such change the Borrower is required to pay or reimburse such
Lender for
any United States withholding tax with respect to any payments,
including
fees, made pursuant to this Agreement, the Borrower shall have
the right
with assistance of the Administrative Agent, to seek a mutually
acceptable
Lender or Lenders to purchase the Notes and assume the
Commitments of such
Lender. If a Lender is organized under the laws of a
jurisdiction outside
the United States of America, unless the Borrower and the
Administrative
Agent have received a Form W-8BEN Certification or Form
W-8ECI
Certification satisfactory to them indicating that all payments
to be made
to such Lender hereunder are not subject to United States
withholding tax,
the Borrower shall withhold taxes from such payments at the
applicable
statutory rate. Each Lender agrees to indemnify and hold
harmless the
Borrower or Administrative Agent, as applicable, from any United
States
taxes, penalties, interest and other expenses, costs and losses
incurred or
payable by (i) the Administrative Agent as a result of such
Lender's
failure to submit any form or certificate that it is required to
provide
pursuant to this Section 4.06 or (ii) the Borrower or the
Administrative
Agent as a result of their reliance on any such form or
certificate which
such Lender has provided to them pursuant to this Section
4.06.
(ii) For any period with respect to which a Lender has
failed to provide the Borrower with the form required pursuant
to this
Section 4.06, if any, (other than if such failure is due to a
change in a
Governmental Requirement occurring subsequent to the date on
which a form
originally was required to be provided), such Lender shall not
be entitled
to indemnification under Section 4.06 with respect to taxes
imposed by the
United States which taxes would not have been imposed but for
such failure
to provide such forms; provided, however, that should a Lender,
which is
otherwise exempt from or subject to a reduced rate of
withholding tax
becomes subject to taxes because of its failure to deliver a
form required
hereunder, the Borrower shall take such steps as such Lender
shall
reasonably request to assist such Lender to recover such
taxes.
(iii) Any Lender claiming any additional amounts payable
pursuant to this Section 4.06 shall use reasonable efforts
(consistent with
legal and regulatory restrictions) to file any certificate or
document
requested by the Borrower or the Administrative Agent or to
change the
jurisdiction of its Applicable Lending Office or to contest any
tax imposed
if the making of such a filing or change or contesting such tax
would avoid
the need for or reduce the amount of any such additional amounts
that may
thereafter accrue and would not, in the sole determination of
such Lender,
be otherwise disadvantageous to such Lender.
(iv) Each of the Lenders represents that it in good faith
is not relying upon any "margin stock" (as defined in Regulation
U of the
Board of Governors of the Federal Reserve System) as collateral
in the
extension or maintenance of the credit provided for in this
Agreement.
(v) Each of the Lenders represents that it is its present
intention to make its Loans and to acquire the Notes to its
order for its
own account as a result of making Loans in the ordinary course
of its
commercial banking business and not with a view to the public
distribution
or public sale thereof; subject, nonetheless, to any legal
or
administrative requirement that the disposition of such Lender's
property
at all times be within its control.
ARTICLE V
Capital Adequacy
Section 5.01 Additional Costs.
(a) Eurodollar Regulations, etc. The Borrower shall pay
directly
to each Lender from time to time such amounts as such Lender may
determine
to be necessary to compensate such Lender for any costs which it
determines
are attributable to its making or maintaining of any Eurodollar
Loans or
its obligation to make any such Loans or any reduction in any
amount
receivable by such Lender hereunder in respect of any of such
Loans or such
obligation (such increases in costs and reductions in amounts
receivable
being herein called "Additional Costs"), resulting from any
Regulatory
Change which: (i) changes the basis of taxation of any amounts
payable to
such Lender under this Agreement or any Note in respect of any
of such
Loans (other than taxes imposed on the overall net income of
such Lender or
of its Applicable Lending Office for any of such Loans by the
jurisdiction
in which such Lender has its principal office or Applicable
Lending Office;
or (ii) imposes or modifies any reserve, special deposit,
minimum capital,
capital ratio or similar requirements relating to any extensions
of credit
or other assets of, or any deposits with or other liabilities of
such
Lender, or the Commitment or Loans of such Lender or the
Eurodollar
interbank market; or (iii) imposes any other condition affecting
this
Agreement or any Note (or any of such extensions of credit or
liabilities)
or such Lender's Commitment or Loans. Each Lender will notify
the
Administrative Agent and the Borrower of any event occurring
after the
Closing Date which will entitle such Lender to compensation
pursuant to
this Section 5.01 as promptly as practicable after it obtains
knowledge
thereof and determines to request such compensation, and will
designate a
different Applicable Lending Office for the Loans of such Lender
affected
by such event if such designation will avoid the need for, or
reduce the
amount of, such compensation and will not, in the sole opinion
of such
Lender, be disadvantageous to such Lender, provided that such
Lender shall
have no obligation to so designate an Applicable Lending Office
located in
the United States. If any Lender requests compensation from the
Borrower
under this Section 5.01(a), the Borrower may, by notice to such
Lender,
suspend the obligation of such Lender to make additional Loans
of the Type
with respect to which such compensation is requested until the
Regulatory
Change giving rise to such request ceases to be in effect (in
which case
the provisions of Section 5.04 shall be applicable).
(b) Regulatory Change. Without limiting the effect of the
provisions of Section 5.01(a), in the event that, by reason of
any
Regulatory Change or any other circumstances arising after the
Closing Date
affecting such Lender, the Eurodollar interbank market or such
Lender's
position in such market, any Lender either (i) incurs Additional
Costs
based on or measured by the excess above a specified level of
the amount of
a category of deposits or other 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).
(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, its Loans or its Letters of Credit
participated in,
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 Loans as provided herein; or
(b) the Administrative Agent determines (which determination
shall
be conclusive, absent manifest error) that the relevant rates of
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