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 OF CONTENTS
PAGE
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ARTICLE I
Definitions and Accounting
Matters.........................................................1
Section 1.01
Terms Defined
Above...............................................................1
Section 1.02
Certain Defined
Terms.............................................................1
Section 1.03
Accounting Terms and
Determinations..............................................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
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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
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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
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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
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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 Loan
