1
EXHIBIT 4.1
CONFORMED COPY
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OCCIDENTAL PETROLEUM CORPORATION
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CREDIT AGREEMENT
dated as of
December 18, 1997
$3,200,000,000
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BANCAMERICA XXXXXXXXX XXXXXXXX
THE BANK OF NOVA SCOTIA
CHASE SECURITIES INC.
X. X. XXXXXX SECURITIES INC.
as Arrangers
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Syndication Agent
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
as Documentation Agent
and
THE BANK OF NOVA SCOTIA
THE CHASE MANHATTAN BANK
as Administrative Agents
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. .................................................... 2
Definitions .......................................................2
Accumulated Funding Deficiency ....................... 2
Addendum ..............................................2
Administrative Agent ................................. 2
Administrative Agents .................................2
Administrative Questionnaire ..........................2
Affected Bank .........................................2
Agents ................................................2
Agreement .............................................2
Allocable Share ...................................... 2
Alternate Base Rate ...................................3
Alternate Base Rate Loan ..............................3
Applicable Facility Fee Percentage ....................4
Applicable Margin .....................................5
Assenting Bank ........................................6
Assignment and Acceptance .............................6
Bank and Banks ........................................6
Bank Funding Default ..................................6
Board .................................................6
Borrowing .............................................6
Borrowing Date ........................................6
Business Day ..........................................6
Calendar Quarter ......................................6
Capital Adequacy Change ...............................6
Capital Adequacy Rule .................................6
Code ..................................................6
Company ...............................................6
Competitive Bid .......................................7
Competitive Bid Banks .................................7
Competitive Bid Rate ..................................7
Competitive Bid Request ...............................7
Competitive Borrowing .................................7
Competitive Loan ......................................7
Confidential Information ..............................7
Consolidated Adjusted Tangible Net Worth ..............7
Consolidated Debt .....................................7
Consolidated Funded Debt ..............................7
Consolidated Secured Debt .............................7
Consolidated Short-Term Borrowings ....................8
Consolidated Subsidiary ...............................8
Continuing Bank .......................................8
(i)
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Documentation Agent ...................................8
Dollars ...............................................8
Domestic Loans and Domestic Loan ......................8
Effective Date ........................................8
Eligible Assignee .....................................8
Elk Hills Acquisition .................................8
Employee Benefit Plan .................................8
ERISA .................................................8
Eurodollar Loan .......................................8
Eurodollar Rate .......................................8
Event of Default ......................................9
Excepted Subsidiary ...................................9
Existing Credit Agreement .............................9
Facility Agent ........................................9
Facility Fee ..........................................9
Fixed Rate Loan .......................................9
Funded Debt ...........................................9
Increased Cost Change .................................9
Indebtedness .........................................10
Indemnified Liabilities ..............................11
Indemnitees and Indemnitee ...........................11
Index Debt ...........................................11
Initial Termination Date .............................11
Interest Payment Date ................................11
Interest Period ......................................11
Interest Rate ........................................11
Lien .................................................11
Loans and Loan .......................................12
Managing Agents ......................................12
Margin ...............................................12
Maturity Date ........................................12
Xxxxx'x ..............................................12
Multiemployer Plan ...................................12
Net Proceeds .........................................12
Non-Continuing Bank ..................................12
Officers' Certificate ................................12
Participants and Participant .........................12
PBGC .................................................13
Person ...............................................13
Plan .................................................13
Plan Administrator ...................................13
Plan Sponsor .........................................13
Principal Subsidiaries and Principal Subsidiary ......13
Prohibited Transaction ...............................13
Proportional Share ...................................13
Reference Banks and Reference Bank ...................14
Refinancing Loan .....................................14
Register .............................................14
Regulation D .........................................14
Regulation G .........................................14
Regulation U .........................................14
Regulation X .........................................14
Related Person .......................................14
(ii)
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Replacement Lender ...................................14
Reportable Event .....................................14
Required Banks .......................................14
Revolving Credit Borrowing ...........................15
Revolving Credit Borrowing Request ...................15
Revolving Credit Commitment ..........................15
Revolving Credit Commitments .........................15
Revolving Credit Loan ................................15
Secured Debt .........................................15
Short-Term Borrowing .................................15
Specified Asset Disposition ..........................16
Specified Subsidiary .................................16
S&P ..................................................16
Subsidiary ...........................................16
Syndication Agent ....................................16
Tangible Net Worth ...................................16
Taxes ................................................16
Termination Date .....................................16
Total Commitment .....................................16
Transferee ...........................................16
Unmatured Event of Default ...........................17
Voting Securities ....................................17
SECTION 1.02. ....................................................17
Accounting Terms .................................................17
ARTICLE II
LOAN PROVISIONS
SECTION 2.01. Revolving Credit Commitments; Procedure for
Requests ..........................................17
SECTION 2.02. Competitive Loans; Procedure for Requests .........18
SECTION 2.03. General Terms Relating to the Loans ...............21
SECTION 2.04. Repayment of Loans; Evidence of Debt ..............22
SECTION 2.05. Refinancings ......................................23
SECTION 2.06. Facility Fee ......................................23
SECTION 2.07. Reserve Requirements; Change in Circumstances .....24
SECTION 2.08. Pro Rata Treatment ................................29
SECTION 2.09. Payments ..........................................29
SECTION 2.10. Payments on Business Days .........................29
SECTION 2.11. Net Payments ......................................29
SECTION 2.12. Failed and Credit-Impaired Banks ..................32
SECTION 2.13. Replacement of Non-Continuing Banks ...............34
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. Interest on Loans .................................35
SECTION 3.02. Interest on Overdue Amounts .......................36
SECTION 3.03. Inability to Determine Eurodollar Rate ............36
SECTION 3.04. Indemnity .........................................37
SECTION 3.05. Rate Determination Conclusive .....................38
(iii)
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ARTICLE IV
REDUCTION, TERMINATION OR EXTENSION OF THE REVOLVING CREDIT
COMMITMENTS AND PREPAYMENTS
SECTION 4.01. Reduction, Termination or Extension of the
Total Commitment ..................................38
SECTION 4.02. Prepayments .......................................39
SECTION 4.03. Required Termination of the Revolving Credit
Commitments and Prepayment ........................40
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Company .....42
ARTICLE VI
COVENANTS
SECTION 6.01. Affirmative Covenants of the Company ..............46
(a) Reports, Certificates and Other
Information ...................................47
(i) Interim Reports ............................47
(ii) Annual Reports ............................47
(iii) Officers' Certificates. ..................47
(iv) Accountants' Certificates .................48
(vi) Officers' Certificates as to Status
of Excepted Subsidiaries ..................48
(vii) Officers' Certificates as to Status
of Principal Subsidiaries ................48
(viii) Notice of Default .......................49
(ix) Other Information .........................49
(b) Taxes .........................................49
(c) Preservation of Corporate Existence,
etc. ..........................................49
(d) Inspections; Discussions ......................49
(e) Books and Records .............................49
(f) Maintenance of Properties .....................49
(g) Maintenance of Insurance ......................50
(h) Consolidated Adjusted Tangible Net Worth ......50
(i) Compliance with Laws, etc. ....................50
(j) Delivery of Certain Documentation with
Respect to Plans ..............................50
(k) Contributions to Plans ........................51
(l) Use of Proceeds ...............................51
SECTION 6.02. Negative Covenants of the Company .................51
(a) Mergers, Consolidations, Sales ................51
(b) Restriction on Secured Debt ...................52
(c) Restriction on Funded Debt ....................52
(d) Restriction on Dividends from Principal
Subsidiaries ..................................52
(e) Change in Control .............................52
ARTICLE VII
CONDITIONS OF CREDIT
SECTION 7.01. Conditions to Effectiveness of Commitments ........53
SECTION 7.02. Conditions Precedent to All Loans .................54
(iv)
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default .................................55
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS AND THE BANKS
SECTION 9.01. Appointment and Powers of the Administrative
Agent and the Facility Agent ......................57
SECTION 9.02. Exculpatory Provisions ............................58
SECTION 9.03. Reliance by the Administrative Agent and the
Facility Agent ....................................58
SECTION 9.04. Notice of Default .................................58
SECTION 9.05. Indemnification ...................................59
SECTION 9.06. Nonreliance on the Agents, the Managing
Agents and Other Banks ............................59
SECTION 9.07. The Agents and the Managing Agents in Their
Individual Capacities .............................59
SECTION 9.08. Excess Payments ...................................60
SECTION 9.09. Obligations Several ...............................60
SECTION 9.10. Resignation by any Agent or Managing Agent ........60
ARTICLE X
MISCELLANEOUS
SECTION 10.01. No Waiver; Modifications in Writing ..............60
SECTION 10.02. Confidentiality ..................................61
SECTION 10.03. Notices, etc. ....................................62
SECTION 10.04. Costs, Expenses and Taxes ........................63
SECTION 10.05. Confirmations ....................................63
SECTION 10.06. Successors and Assigns; Participations ...........63
SECTION 10.07. Indemnification ..................................67
SECTION 10.08. Reference Banks ..................................68
SECTION 10.09. Headings .........................................68
SECTION 10.10. Circumstances Requiring Consultation .............68
SECTION 10.11. Execution in Counterparts ........................69
SECTION 10.12. GOVERNING LAW ....................................69
SECTION 10.13. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS; WAIVER OF JURY TRIAL ....................69
SECTION 10.14. Severability of Provisions .......................70
SECTION 10.15. Procedures Relating to Addendum ..................70
(a) Banks Listed on the Signature Pages .............70
(b) Banks Not Listed on Signature Pages .............70
(c) Automatic Amendment of the Agreement ............70
(d) Notification of Administrative Agent, etc. ......70
SECTION 10.16. Maximum Interest .................................70
SECTION 10.17. Special Termination Provision ....................71
(v)
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Schedules
I Revolving Credit Commitments
II Addresses, Telecopier and Telephone Numbers
Exhibits
A Form of Competitive Bid Request
B Form of Notice of Competitive Bid Request
C Form of Competitive Bid
D Form of Revolving Credit Borrowing Request
E Form of Section 7.01(b) Certificate
F Form of Assignment and Acceptance
G Form of Opinion of Xxxxxx X. Xxxxxx, Esq., Counsel to
the Company
H Form of Opinion of Cravath, Swaine & Xxxxx, Special
Counsel to the Agents
I Form of Addendum
J Form of Administrative Questionnaire
(vi)
CREDIT AGREEMENT
THIS AGREEMENT, dated as of December 18,
1997, is among OCCIDENTAL PETROLEUM
CORPORATION, a Delaware corporation
(hereinafter called the "Company"), the Banks
(as defined below), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as syndication
agent (hereinafter, in such capacity,
together with any successor thereto in such
capacity, the "Syndication Agent"), XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as
documentation agent (hereinafter, in such
capacity, together with any successor thereto
in such capacity, the "Documentation Agent"),
THE BANK OF NOVA SCOTIA and THE CHASE
MANHATTAN BANK, as administrative agents
(hereinafter, in such capacity, together with
any successors to either thereof in such
capacity, the "Administrative Agents", with
each reference herein to the "Administrative
Agent" in the singular meaning THE BANK OF
NOVA SCOTIA), THE CHASE MANHATTAN BANK, as
facility agent (hereinafter, in such
capacity, together with any successor thereto
in such capacity, the "Facility Agent"), and
ABN AMRO BANK, N.V., THE BANK OF NEW YORK,
CANADIAN IMPERIAL BANK OF COMMERCE, CITICORP
USA, INC., CREDIT LYONNAIS NEW YORK BRANCH,
CREDIT SUISSE FIRST BOSTON, DEUTSCHE BANK AG,
NEW YORK BRANCH AND CAYMAN ISLANDS BRANCH,
DRESDNER BANK AG, NEW YORK BRANCH AND GRAND
CAYMAN BRANCH, THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY, KREDIETBANK N.V., MELLON
BANK, N.A., NATIONSBANK OF TEXAS, N.A.,
SOCIETE GENERALE, TORONTO DOMINION (TEXAS)
INC., UNION BANK OF CALIFORNIA, N.A. and
UNION BANK OF SWITZERLAND, HOUSTON AGENCY, as
managing agents (hereinafter, in such
capacity, the "Managing Agents").
W I T N E S S E T H
WHEREAS the Company has requested the Banks to
provide a $3,200,000,000 committed credit facility to
finance the Elk Hills Acquisition (as defined in Article I
hereof) and to pay related costs and expenses, and for
general corporate purposes, including the support of
commercial paper issuances, pursuant to which the Company
may borrow from the Banks pro rata on a revolving credit
basis from time to time on and after the Effective Date and
prior to the Termination Date;
WHEREAS the Company has also requested the Banks
to provide an uncommitted credit facility pursuant to which
the Company may invite Banks from time to time designated by
it to bid on a competitive basis to make short-term loans to
the Company; and
2
WHEREAS the Banks are willing to provide such
credit facilities to the Company on the terms and conditions
herein set forth;
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions. As used in this
Agreement, and unless the context requires a different
meaning, the following terms have the meanings indicated
(the meanings given to terms defined herein being equally
applicable to both the singular and plural forms of such
terms):
"Accumulated Funding Deficiency" has the meaning
assigned to that term in Section 412 of the Code.
"Addendum" means an instrument, substantially in
the form of Exhibit I hereto.
"Administrative Agent" has the meaning assigned to
that term in the introduction to this Agreement.
"Administrative Agents" has the meaning assigned
to that term in the introduction to this Agreement.
"Administrative Questionnaire" means an
Administrative Questionnaire substantially in the form of
Exhibit J hereto, which each Bank shall complete and provide
to the Administrative Agent.
"Affected Bank" means, respectively, (i) any Bank
or Participant affected by the events described in Section
2.07(a), Section 2.07(b), Section 2.07(f) or Section 2.11
hereof, (ii) any Bank affected by the events described in
Section 2.12 hereof, (iii) any Bank that shall not have
consented to an extension of the Termination Date requested
by the Company in accordance with Section 4.01(c)(ii)
hereof, or (iv) any Bank affected by the events described in
Section 4.03(a) hereof, as the case may be, but, in the case
of the foregoing clauses (i), (ii) and (iv), only for any
period during which such Bank or Participant shall be
affected by such events.
"Agents" means, collectively, the Syndication
Agent, the Administrative Agent, the Administrative Agents,
the Documentation Agent and the Facility Agent.
"Agreement" means this Agreement, as the same may
at any time be amended or modified and in effect.
"Allocable Share" means, when used with reference
to any Assenting Bank at the time any determination thereof
is to be made, (a) in the case of the Revolving Credit
Commitment and Revolving Credit Loans of an Affected Bank, a
fraction, the numerator of which shall be the Revolving
Credit Commitment of such Assenting Bank
3
at such time and the denominator of which shall be the
aggregate of the Revolving Credit Commitments of all
Assenting Banks at such time, and (b) in the case of the
Competitive Loans, if any, of an Affected Bank, the
outstanding principal amount thereof, divided among the
Assenting Banks in such proportion as the Company and such
Assenting Banks shall agree.
"Alternate Base Rate" means for any day, a rate
per annum equal to the higher of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate
in effect for such day plus 1/2 of 1% per annum.
For purposes hereof, "Prime Rate" means the rate
per annum announced by the Administrative Agent from time to
time as its base rate in effect at its principal office in
the City of New York; each change in the Prime Rate shall be
effective on the date such change is announced as effective.
For purposes hereof, "Federal Funds Effective
Rate" means, for any day, an interest rate per annum equal
to the weighted average of the rates in effect on such day
for overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
For purposes hereof, any change in the Alternate
Base Rate due to a change in the Federal Funds Effective
Rate shall be effective on the effective date of such
change. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including,
without limitation, the inability or failure of the
Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the
Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist.
"Alternate Base Rate Loan" means any Loan with
respect to which the Interest Rate is based on the Alternate
Base Rate.
4
"Applicable Facility Fee Percentage" means, on any
date, the applicable percentage set forth below based upon
the ratings applicable on such date to Index Debt; provided,
however, that on any date prior to the date on which the
conditions in Section 7.02 hereof are fulfilled, the
Applicable Facility Fee Percentage will mean the applicable
percentage set forth below multiplied by 50%:
PERCENTAGE
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LEVEL 1
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A- or better by S&P
A3 or better by Xxxxx'x .0600%
XXXXX 0
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BBB+ by S&P
Baa1 by Xxxxx'x .0700%
XXXXX 0
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BBB by S&P
Baa2 by Xxxxx'x .0800%
LEVEL 4
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BBB- by S&P
Baa3 by Xxxxx'x .1200%
XXXXX 0
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BB+ or below by S&P
Ba1 or below by Xxxxx'x .1700%
For purposes hereof, (i) if the ratings established (or
deemed to have been established, as provided in clause (ii)
below) by Xxxxx'x and S&P shall fall within different
Levels, the rating in the inferior Level shall be
disregarded, unless one of the ratings is below Level 4, in
which case the Applicable Facility Fee Percentage will be
based on the inferior of the two Levels, (ii) if Xxxxx'x or
S&P shall not have in effect a rating for Index Debt (other
than (a) because such rating agency shall no longer be in
the business of rating corporate debt obligations or (b) as
a result of a change in the rating system of Xxxxx'x or
S&P), then such rating agency will be deemed to have
established a rating for Index Debt in Level 5 and (iii) if
any rating established (or deemed to have been established,
as provided in clause (ii) above) by Xxxxx'x or S&P shall be
changed (other than as a result of a change in the rating
system of Xxxxx'x or S&P), such change shall be effective as
of the date on which it is first publicly announced by the
applicable rating agency. Each change in the Applicable
Facility Fee Percentage shall apply during the period
commencing on the effective date of such change and ending
on the date immediately
5
preceding the effective date of the next such change. If
the rating system of Xxxxx'x or S&P shall change, or if
either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Company and the
Banks (acting through the Administrative Agent) shall
negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating
system or the non-availability of ratings from such rating
agency.
"Applicable Margin" means, on any date, with
respect to any Eurodollar Loan or Alternate Base Rate Loan,
as the case may be, the applicable spread set forth below
based upon the ratings applicable on such date to Index
Debt:
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
S&P A- or better BBB+ BBB BBB- BB+ or below
Moody's A3 or better Xxx0 Xxx0 Xxx0 Xx0 or below
Eurodollar .2400% .2550% .2950% .3300% .5300%
Alternate 0 0 0 0 0
Base Rate
For purposes hereof, (i) if the ratings established (or
deemed to have been established, as provided in clause (ii)
below) by Moody's and S&P shall fall within different
Levels, the rating in the inferior Level shall be
disregarded, unless one of the ratings is below Level 4, in
which case the Applicable Margin will be based on the
inferior of the two Levels, (ii) if Moody's or S&P shall not
have in effect a rating for Index Debt (other than (a)
because such rating agency shall no longer be in the
business of rating corporate debt obligations or (b) as a
result of a change in the rating system of Moody's or S&P),
then such rating agency will be deemed to have established a
rating for Index Debt in Level 5 and (iii) if any rating
established (or deemed to have been established, as provided
in clause (ii) above) by Moody's or S&P 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
date on which it is first publicly announced by the
applicable rating agency. 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
Company and the Banks (acting through the Administrative
Agent) shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such
changed rating system or the non-availability of ratings
from such rating agency. Notwithstanding the foregoing, the
Applicable Margin in effect at any time for Eurodollar Loans
shall be increased (a) by .05% per annum on any date on
which the aggregate principal amount of the outstanding
Loans exceeds 50% of the aggregate amount of the Revolving
Credit Commitments at the time in effect (or, if the
Revolving Credit Commitments shall have terminated, 50% of
the aggregate amount of the Revolving Credit Commitments
immediately in effect prior to such termination), and (b) by
an additional .05% per annum on each date after the second
anniversary of the Effective Date.
6
"Assenting Bank" has the meaning assigned to that
term in Section 2.07(e)(ii) hereof.
"Assignment and Acceptance" means an instrument
substantially in the form of Exhibit F hereto.
"Bank" and "Banks" mean, respectively, (i) each
bank or financial institution which becomes a party to this
Agreement by signing on the signature pages hereto, by
signing an Addendum or pursuant to Section 10.06(c) hereof,
and (ii) all such banks and financial institutions.
"Bank Funding Default" means any failure by the
Company to repay any portion of a Loan which otherwise would
have been repaid in accordance with the second sentence of
Section 2.05 hereof from proceeds of a new Loan or Loans,
which failure is attributable solely to the failure of any
Bank to make available all or any portion of the new Loan or
Loans to be made by such Bank pursuant to Section 2.05
hereof.
"Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" means a borrowing by the Company from
the Banks (or any of them) pursuant to this Agreement
(including any such borrowing made as a result of the
operation of Section 2.05, Section 2.07(e)(ii), Section
2.07(e)(iii), Section 2.11(c)(i), Section 2.12(i), Section
2.13(i), Section 4.03(b)(ii), or Section 4.03(b)(iii)
hereof, as the case may be).
"Borrowing Date" means the date on which a
Borrowing is, or is to be, consummated, as the context may
indicate.
"Business Day" means any day not a Saturday,
Sunday or legal holiday in the State of New York and on
which banks and the Federal Reserve Bank of New York are
open for business in New York City; provided, however, that
when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are
not open for dealings in Dollar deposits in the London
Interbank Market.
"Calendar Quarter" means a calendar quarter ending
on the last day of any March, June, September or December.
"Capital Adequacy Change" has the meaning assigned
to that term in Section 2.07(b) hereof.
"Capital Adequacy Rule" has the meaning assigned
to that term in Section 2.07(b) hereof.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time and in effect.
"Company" has the meaning assigned to that term in
the introduction to this Agreement.
7
"Competitive Bid" means an offer by a Competitive
Bid Bank to make a Competitive Loan pursuant to Section 2.02
hereof.
"Competitive Bid Banks" means those Banks from
time to time designated by the Company, by written notice to
the Administrative Agent, as Competitive Bid Banks entitled
to submit Competitive Bids pursuant to Section 2.02(c)
hereof.
"Competitive Bid Rate" means, as to any
Competitive Bid made by a Bank pursuant to Section 2.02(c)
hereof, (a) in the case of a Eurodollar Loan, the Margin,
and (b) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Bank making such Competitive Bid.
"Competitive Bid Request" means a request made
pursuant to Section 2.02(a) hereof substantially in the form
of Exhibit A hereto.
"Competitive Borrowing" means, as the case may be,
(a) a Borrowing consisting of a Competitive Loan from a
Competitive Bid Bank whose Competitive Bid, accepted by the
Company, is equal to the entire amount of such Borrowing, or
(b) a Borrowing consisting of concurrent Competitive Loans
from each of the Competitive Bid Banks whose Competitive Bid
as a part of such Borrowing has been accepted by the
Company, in each case pursuant to the bidding procedure
described in Section 2.02 hereof.
"Competitive Loan" means a Loan from a Competitive
Bid Bank to the Company pursuant to the bidding procedure
described in Section 2.02 hereof.
"Confidential Information" has the meaning
assigned to that term in Section 10.02 hereof.
"Consolidated Adjusted Tangible Net Worth" means
the total of the Tangible Net Worth of the Company and its
Specified Subsidiaries, determined on a consolidated basis
in accordance with generally accepted accounting principles,
after eliminating all inter-company items.
"Consolidated Debt" means the sum of, without
duplication (i) Consolidated Funded Debt, including that
portion of Consolidated Funded Debt maturing within one year
from the date of such determination, (ii) Consolidated Short-
Term Borrowings and (iii) obligations reflected for
financial reporting purposes as deferred credits for revenue
from sales of future production of the Company and its
Specified Subsidiaries.
"Consolidated Funded Debt" means the total of all
Funded Debt of the Company and its Specified Subsidiaries,
determined on a consolidated basis in accordance with
generally accepted accounting principles, after eliminating
all inter-company items.
"Consolidated Secured Debt" means the total of all
Secured Debt of the Company and its Specified Subsidiaries
other than any such Secured Debt which is owed by a
Specified Subsidiary to the Company or which is owed by one
Specified Subsidiary to another Specified Subsidiary.
8
"Consolidated Short-Term Borrowings" means the
total of all Short-Term Borrowings of the Company and its
Specified Subsidiaries, determined on a consolidated basis
in accordance with generally accepted accounting principles,
after eliminating all inter-company items.
"Consolidated Subsidiary" means any Subsidiary of
the Company included in the financial statements of the
Company and its Subsidiaries prepared on a consolidated
basis in accordance with generally accepted accounting
principles.
"Continuing Bank" has the meaning assigned to that
term in Section 4.01(c)(ii) hereof.
"Documentation Agent" has the meaning assigned to
that term in the introduction to this Agreement.
"Dollars" and the symbol "$" mean the lawful
currency of the United States of America.
"Domestic Loans" and "Domestic Loan" mean,
respectively, (a) any Loans during any period in which such
Loans bear Interest Rates determined with reference to the
Alternate Base Rate and (b) a single such Loan during any
such period.
"Effective Date" means the date upon which the
conditions of Section 7.01 shall have been satisfied. The
Effective Date is December 18, 1997.
"Eligible Assignee" means a commercial bank having
total assets in excess of $8,000,000,000 or any other
financial institution mutually acceptable to the Company and
the Administrative Agent.
"Elk Hills Acquisition" means the acquisition by
the Company from the United States Department of Energy of
the U.S. Government's ownership interest in the Elk Hills
Field, on the terms set forth in the Company's Current
Report to the Securities and Exchange Commission on Form 8-K
dated October 6, 1997.
"Employee Benefit Plan" has the meaning assigned
to the term "employee benefit plan" in Section 3(3) of
ERISA.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time and in
effect.
"Eurodollar Loan" means any Loan with respect to
which the Company shall have selected an Interest Rate based
on the Eurodollar Rate in accordance with the provisions of
Article II hereof.
"Eurodollar Rate" means, for any Interest Period
with respect to any Eurodollar Loan, the rate per annum
which is equal to the arithmetic average (as determined by
the Administrative Agent (subject to Section 10.08 hereof)
on the basis of quotations, if any, received by the
Administrative Agent from the Reference Banks, with such
average expressed as a percentage and rounded, if necessary,
to the nearest 1/10,000 of one percent) of the average rate
per annum at which each Reference Bank is offered deposits
in Dollars by prime banks in the London Interbank Eurodollar
market as of 11:00 a.m., London time, on the day which is
two (2) Business Days prior to the
9
beginning of such Interest Period, for settlement on the
first day of such Interest Period and for the approximate
number of days comprised therein, in an amount comparable to
the amount of such Reference Bank's portion of the principal
amount of the Revolving Credit Borrowing of which such
Eurodollar Loan forms a part (or, in the case of a
Competitive Loan, a principal amount that would have been
such Reference Bank's portion of the Revolving Credit
Borrowing had such Competitive Borrowing been a Revolving
Credit Borrowing).
"Event of Default" has the meaning assigned to
that term in Section 8.01 hereof.
"Excepted Subsidiary" means (a) Occidental
Receivables, Inc., a California corporation, but only until
such time, if any, as it has been withdrawn from status as
an Excepted Subsidiary by an Officers' Certificate
hereinafter referred to, effective as of the date of such
Officers' Certificate, (b) effective as of the date of the
Officers' Certificate hereinafter referred to, any
Subsidiary of the Company which has been designated as an
Excepted Subsidiary after the Effective Date by an Officers'
Certificate and has not been withdrawn from status as an
Excepted Subsidiary by a subsequent Officers' Certificate
effective as of the date of such subsequent Officers'
Certificate; provided that no Subsidiary of the Company may
be designated as an Excepted Subsidiary unless, immediately
after giving effect to such designation, the Company could
become liable with respect to at least $1.00 of additional
Funded Debt in compliance with Section 6.02(c) hereof, and
(c) every Subsidiary of one or more Excepted Subsidiaries.
"Existing Credit Agreement" means the Credit
Agreement dated as of March 20, 1997, among the Company, the
banks party thereto, X. X. Xxxxxx Securities Inc. and
BancAmerica Securities, Inc., as Co-Syndication Agents, The
Chase Manhattan Bank, as Documentation Agent, and The Bank
of Nova Scotia, as Administrative Agent.
"Facility Agent" has the meaning assigned to that
term in the introduction to this Agreement.
"Facility Fee" has the meaning assigned to that
term in Section 2.06 hereof.
"Fixed Rate Loan" means any Competitive Loan made
by a Bank pursuant to Section 2.02 hereof based upon a fixed
rate per annum offered by such Bank (expressed as a
percentage to 1/10,000 of one percent) and accepted by the
Company.
"Funded Debt" means, with respect to any Person,
all Indebtedness of such Person (a) maturing one year or
more from the date of the creation thereof, (b) directly or
indirectly renewable or extendible, at the option of the
debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from
the date of the creation thereof, and (c) under a revolving
credit or similar agreement obligating the lender or lenders
to extend credit over a period of one year or more, even
though such Indebtedness may also conform to the definition
of Short-Term Borrowing.
"Increased Cost Change" has the meaning assigned
to that term in Section 2.07(a) hereof.
10
"Indebtedness" means, with respect to any Person,
as of the date on which Indebtedness is to be determined,
(a) all items (except items of capital stock or of surplus
or of deferred credits and other liabilities combined with
deferred credits for financial reporting purposes or
minority interests in Subsidiaries of such Person) which in
accordance with generally accepted accounting principles
applied in the preparation of the financial statements of
the Company and its Consolidated Subsidiaries would be
included in determining total liabilities as shown on the
liability side of a balance sheet of such Person, (b) all
indebtedness secured by any mortgage on, or other security
interest in, any property or asset owned or held by such
Person subject thereto, whether or not the indebtedness
secured thereby shall have been assumed by such Person and
(c) all indebtedness of others which such Person has
directly or indirectly guaranteed, endorsed (otherwise than
for collection or deposit in the ordinary course of
business), discounted with recourse, agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire,
or in respect of which such Person has otherwise become
directly or indirectly liable. For the purpose of computing
the Indebtedness of any Person, there shall be excluded any
particular Indebtedness which meets one or more of the
following categories:
(i) Indebtedness with respect to which sufficient
cash or cash equivalents or securities shall have been
deposited in trust to provide for the full payment,
redemption or satisfaction of the principal of,
premium, if any, and interest to accrue on, such
Indebtedness to the stated maturity thereof or to the
date of prepayment thereof, as the case may be, and as
a result of such deposit such particular Indebtedness,
in accordance with generally accepted accounting
principles, shall no longer be required to be reported
on a balance sheet of such Person as a liability, and
such cash or cash equivalents or securities shall not
be required to be reported as an asset;
(ii) Indebtedness which is not classified as
Indebtedness under clause (a) of the definition of
Indebtedness and (x) which arises from any commitment
of such Person relating to pipeline operations to pay
for property or services substantially without regard
to the non-delivery of such property or the non-
furnishing of such services or (y) which is
Indebtedness of a partnership, joint venture or similar
entity less than a majority of the equity interest of
which is at the time owned by such Person or by such
Person and one or more Subsidiaries of such Person or,
if such Person is a Subsidiary of the Company, by such
Person and either the Company or one or more other
Subsidiaries of the Company or by such Person and the
Company and one or more other Subsidiaries of the
Company and which is payable solely out of the property
or assets owned or held by such partnership, joint
venture or similar entity or is secured by a mortgage
on, or other security interest in, the property or
assets owned or held by such partnership, joint venture
or similar entity, in either case without any further
recourse to or liability of such Person; or
(iii) Indebtedness which is not classified as
Indebtedness under clause (a) of the definition of
Indebtedness and which is payable solely out of certain
property or assets of such Person, or is secured by a
mortgage on, or other security interest in, certain
property or assets owned or held by such Person, in
either case without any further recourse to or
liability of such Person, to the extent such
Indebtedness exceeds (x) if such Person records such
property or assets on its books, the value for such
property or assets recorded on such books or (y) if
such Person does not record such property or assets on
its books, (1) if such
11
Indebtedness is a general obligation of the entity
which does record such property or assets on its books,
the net investment in or advances to such entity as
recorded on the books of such Person or (2) if such
Indebtedness is payable solely out of certain property
or assets of such entity, the lesser of the value for
such property or assets recorded on the books of such
entity or the net investment in or advances to such
entity as recorded on the books of such Person, in each
case determined in accordance with generally accepted
accounting principles.
"Indemnified Liabilities" has the meaning assigned
to that term in Section 10.07 hereof.
"Indemnitees" and "Indemnitee" have the respective
meanings assigned to those terms in Section 10.07 hereof.
"Index Debt" means senior, unsecured, non-credit-
enhanced, publicly- held, long-term indebtedness for
borrowed money of the Company.
"Initial Termination Date" means December 17,
1998.
"Interest Payment Date" means (a) with respect to
Alternate Base Rate Loans, the last day of each Calendar
Quarter, commencing with the first of such dates to occur
after the date of this Agreement, and the Maturity Date, (b)
with respect to any Eurodollar Loan, the last day of the
Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of 6 months, also
the day that would have been the Interest Payment Date for
such Loan had an Interest Period of 3 months been applicable
to such Loan, and (c) in the case of a Fixed Rate Loan, the
last day of the Interest Period applicable thereto and in
the case of a Fixed Rate Loan with an Interest Period of
more than 90 days, each day within such Interest Period that
would have been an Interest Payment Date had such Loan been
a series of consecutive Fixed Rate Loans with 90-day
Interest Periods.
"Interest Period" means (a) as to any Eurodollar
Loan, the period commencing on the Borrowing Date of such
Loan and ending on the numerically corresponding day (or if
there is no such corresponding day, the last day) in the
calendar month that is 1, 2, 3 or 6 months later, as the
Company may elect, (b) as to any Alternate Base Rate Loan,
the period commencing on the Borrowing Date of such Loan and
ending 90 days later or, if earlier, on the date of
prepayment of such Loan and (c) as to any Fixed Rate Loan,
the period commencing on the Borrowing Date of such Loan and
ending on the date specified in the Competitive Bid accepted
by the Company with respect to such Fixed Rate Loan, which
period shall not be less than 8 days or more than 360 days;
provided, however, that (i) if any Interest Period would end
on a day which shall not be a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless, with respect to Eurodollar Loans only, such next
succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) no Interest Period may
be selected that ends later than the Maturity Date.
"Interest Rate" means the rate or rates of
interest to be determined as provided in Article III hereof.
"Lien" means and includes any mortgage, pledge,
lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
12
"Loans" and "Loan" mean, respectively, (a) all
loans made by the Banks or Competitive Bid Banks or a single
Bank or Competitive Bid Bank (as the context may indicate)
to the Company pursuant to this Agreement (including any
such loan made as a result of the operation of Section 2.05,
Section 2.07(e)(ii), Section 2.07(e)(iii), Section
2.11(c)(i), Section 2.12(i), Section 2.13(i), Section
4.03(b)(ii) or Section 4.03(b)(iii) hereof, as the case may
be), and (b) a single such loan made by any Bank or
Competitive Bid Bank.
"Managing Agents" has the meaning assigned to that
term in the introduction to this Agreement.
"Margin" means, as to any Competitive Bid relating
to a Eurodollar Loan, the margin (expressed as a percentage
rate per annum and rounded, if necessary, to the nearest
1/10,000 of one percent) to be added to or subtracted from
the Eurodollar Rate to determine the interest rate offered
by such Competitive Bid Bank with respect to such Eurodollar
Loan.
"Maturity Date" means the Termination Date;
provided, that if the Company shall so request in a notice
delivered to the Administrative Agent (which shall promptly
deliver a copy of such notice to each Bank) not later than
the 30th day prior to the Termination Date, the Maturity
Date will be extended to and will occur on December 18,
2000.
"Moody's" means Xxxxx'x Investors Service, Inc. or
any successor thereto.
"Multiemployer Plan" has the meaning assigned to
the term "multiemployer plan" in Section 3(37) of ERISA.
"Net Proceeds" means, as to any Specified Asset
Disposition, cash proceeds as and when received by the
Company or any Subsidiary, net of (a) the direct costs
relating to such Specified Asset Disposition excluding
amounts payable of such direct costs to the Company or any
Subsidiary, (b) sales, use or other transaction taxes, (c)
an assumed 37.6% federal and state income tax, paid or
payable as a direct result thereof, (d) amounts required to
be applied to repay principal, interest and prepayment
premiums and penalties on purchase money Indebtedness
secured by a Lien on the asset which is the subject of the
Specified Asset Disposition, (e) amounts required to pay all
foreign income taxes and (f) any withholding taxes
associated with repatriation of such amounts to the United
States.
"Non-Continuing Bank" has the meaning assigned to
that term in Section 4.01(c)(ii) hereof.
"Officers' Certificate" means a certificate
executed on behalf of the Company by its President or one of
its Vice Presidents and by one of its other Vice Presidents
or its Treasurer or one of its Assistant Treasurers or its
Controller or one of its Assistant Controllers.
"Participants" and "Participant" mean,
respectively, (a) the banks and other entities referred to
in Section 10.06(b) hereof, and (b) any one of such banks or
other entities.
13
"PBGC" means the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV
of ERISA.
"Person" means a corporation, an association, a
partnership, an organization, a business, an individual, a
government or a political subdivision thereof or a
governmental agency.
"Plan" means (a) with respect to the Company, any
plan described in Section 4021(a) of ERISA and not excluded
pursuant to Section 4021(b) thereof, under which the Company
or any Related Person to the Company has contributed, and
(b) with respect to any other Person, any employee benefit
plan or other plan established or maintained by such Person
for the benefit of such Person's employees and to which
Title IV of ERISA applies.
"Plan Administrator" has the meaning assigned to
the term "administrator" in Section 3(16)(A) of ERISA.
"Plan Sponsor" has the meaning assigned to the
term "plan sponsor" in Section 3(16)(B) of ERISA.
"Principal Subsidiaries" and "Principal
Subsidiary" mean, respectively, (a) the following Persons
(or any other Person which is, directly or indirectly, the
survivor or successor in interest in any merger or
consolidation involving, or the transferee with respect to
all or substantially all of the assets of, the following
Persons): MidCon Corp., a Delaware corporation, Natural Gas
Pipeline Company of America, a Delaware corporation,
Occidental Chemical Corporation, a New York corporation,
Occidental Chemical Holding Corporation, a California
corporation, Occidental International Exploration and
Production Company, a California corporation, Occidental Oil
and Gas Corporation, a California corporation, Occidental
Petroleum Investment Co., a California corporation, Oxy CH
Corporation, a California corporation, Oxy Chemical
Corporation, a California corporation, Oxy Petrochemicals
Inc., a Delaware corporation, OXY USA Inc., a Delaware
corporation, and any other Person which shall have become a
Subsidiary of the Company after September 30, 1997, and
shall have, according to its most recent audited year-end
financial statements (or, if there are no audited financial
statements for its most recent fiscal year, its most recent
unaudited year-end financial statements) available at the
date it became a Subsidiary, total assets in excess of 5% of
the consolidated assets of the Company and its Consolidated
Subsidiaries shown on the Company's most recent audited year-
end financial statements available at such time, and (b) any
one of such Persons (or any other Person which is, directly
or indirectly, the survivor or successor in interest in any
merger or consolidation involving, or the transferee with
respect to all or substantially all of the assets of, any
one of such Persons); provided that, notwithstanding the
foregoing, no Excepted Subsidiary and no Person which is not
a Consolidated Subsidiary shall be a Principal Subsidiary.
"Prohibited Transaction" has the respective
meanings assigned to that term in Section 4975 of the Code
and in Section 406 of ERISA.
"Proportional Share" means, at the time any
determination thereof is to be made and when used with
reference to any Bank and any described aggregate or total
amount, an amount equal to the result obtained by
multiplying such described aggregate or total amount by a
fraction, the numerator of which shall be such Bank's
Revolving Credit Commitment at such time and the denominator
of which shall be the Total
14
Commitment at such time; provided, however, that if prior to
the time of such determination the Revolving Credit
Commitments shall have been terminated pursuant to Section
8.01 hereof, any determination of Proportional Share shall
be based upon the amounts of Revolving Credit Commitments
and Total Commitment in effect immediately prior to such
termination.
"Reference Banks" and "Reference Bank" mean,
respectively, (a) the following Persons: ABN AMRO Bank
N.V., The Bank of Nova Scotia, and The Chase Manhattan Bank,
or any other Person hereafter appointed as a Reference Bank
pursuant to Section 10.08 hereof, and (b) any one of such
Persons.
"Refinancing Loan" means (A) any Revolving Credit
Loan (i) which is made on the date of repayment of any other
Revolving Credit Loan and (ii) all of the proceeds of which
are applied, in accordance with Section 2.05 hereof, to the
repayment of such other Revolving Credit Loan and (B) any
Revolving Credit Loan (i) which is made on the date of
prepayment of any other Revolving Credit Loan and (ii) all
of the proceeds of which are applied, in accordance with
Section 4.02 hereof, to the prepayment of such other
Revolving Credit Loan. A Refinancing Loan may be a
Eurodollar Loan, an Alternate Base Rate Loan, or a
combination thereof, irrespective of whether the Loan or
Loans being refinanced with the proceeds of such Refinancing
Loan were bearing interest based upon the same or a
different interest rate basis as such Refinancing Loan.
"Register" has the meaning assigned to that term
in Section 10.06(e) hereof.
"Regulation D" means Regulation D of the Board, as
the same may at any time be amended or modified and in
effect.
"Regulation G" means Regulation G of the Board, as
the same may at any time be amended or modified and in
effect.
"Regulation U" means Regulation U of the Board, as
the same may at any time be amended or modified and in
effect.
"Regulation X" means Regulation X of the Board, as
the same may at any time be amended or modified and in
effect.
"Related Person" means, with respect to any
Person, any trade or business (whether or not incorporated)
which, together with such Person, is under common control as
described in Section 414(c) of the Code.
"Replacement Lender" means a lending institution
designated by the Company pursuant to Section 2.07(e)(iv),
Section 2.11(c)(ii), Section 2.12(ii), Section 2.13(ii), or
Section 4.03(b)(iv) hereof, which, at the time of such
designation, is not a Bank.
"Reportable Event" means a "reportable event"
described in Section 4043(b) of ERISA.
"Required Banks" means, at the time any
determination thereof is to be made, (i) Banks whose
Revolving Credit Commitments aggregate at least 51% of the
Total Commitment, or (ii) if the Revolving Credit
Commitments shall have been
15
terminated pursuant to Section 8.01 hereof at the time when
no Loans are outstanding, Banks whose Revolving Credit
Commitments immediately prior to such termination aggregated
at least 51% of the Total Commitment immediately prior to
such termination, or (iii) if the Revolving Credit
Commitments shall have been terminated other than as
provided in clause (ii) above, Banks with Revolving Credit
Loans which aggregate at least 51% of the total aggregate
Revolving Credit Loans.
"Revolving Credit Borrowing" means a Borrowing (a)
pursuant to Section 2.01(a) or Section 2.05 hereof
consisting of simultaneous Revolving Credit Loans from each
of the Banks in accordance with their respective
Proportional Share of such Borrowing, or (b) made as a
result of the operation of Section 2.07(e)(ii), Section
2.07(e)(iii), Section 2.11(c)(i), Section 2.12(i), Section
2.13(i), Section 4.03(b)(ii), or Section 4.03(b)(iii)
hereof.
"Revolving Credit Borrowing Request" means a
request made pursuant to Section 2.01(b) hereof
substantially in the form of Exhibit D hereto.
"Revolving Credit Commitment" means, when used
with reference to any Bank at the time any determination
thereof is to be made, the amount of such Bank's commitment
hereunder to extend credit to the Company as set forth in
Section 2.01(a) hereof, which Revolving Credit Commitment,
subject to Section 8.01 hereof, shall be the amount set
forth opposite the name of such Bank on Schedule I hereto or
the amount set forth in an Addendum of such Bank delivered
in accordance with Section 10.15 hereof, as such commitment
may from time to time be adjusted under Section 2.07(e)(ii),
Section 2.11(c)(i), Section 2.12(i), Section 2.13(i) or
Section 4.03(b)(ii) hereof, reduced by the amount of any
permanent reduction(s) in such amount made pursuant to
Section 4.01 or Section 4.03 hereof.
"Revolving Credit Commitments" means each
Revolving Credit Commitment, collectively.
"Revolving Credit Loan" shall have the meaning
assigned to that term in Section 2.01(a) hereof.
"Secured Debt" means any Funded Debt of the
Company or any Specified Subsidiary secured by a Lien on
assets of the Company or any Specified Subsidiary, plus
(without duplication) obligations of the Company or any
Specified Subsidiary reflected for financial reporting
purposes as deferred credits for revenue from sales of
future production secured by a Lien on any property of the
Company or any Specified Subsidiary. For the purpose of
computing Secured Debt, the portion of any secured
obligation which exceeds the book value (as reflected on the
Company's consolidated balance sheet) of the assets of the
Company and its Specified Subsidiaries securing such
obligation shall be excluded.
"Short-Term Borrowing" means, with respect to any
Person, all Indebtedness of such Person in respect of
borrowed money maturing on demand or within one year from
the date of the creation thereof and not directly or
indirectly renewable or extendible, at the option of the
debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from
the date of the creation thereof; provided that Indebtedness
of such Person in respect of borrowed money arising under a
revolving credit or similar agreement which obligates the
lender or lenders to extend credit over a period of one year
or more shall constitute Funded Debt and not a
16
Short-Term Borrowing even though the same matures on demand
or within one year from the date as of which such Short-Term
Borrowing is to be determined.
"Specified Asset Disposition" means a divestiture
of MidCon Corp., a Delaware corporation, or any substantial
portion of the assets of MidCon Corp., a Delaware
corporation, or any sale of other assets determined by the
Company in its sole discretion to be non-strategic assets
(other than individual transactions having aggregate Net
Proceeds not exceeding $10,000,000 for each such
transaction).
"Specified Subsidiary" means, at any time, any
Consolidated Subsidiary, a majority (by number of votes) of
the Voting Securities of which is at such time owned
directly by the Company or by one or more of its Specified
Subsidiaries, or by the Company and one or more of its
Specified Subsidiaries, and which is not at such time
designated as an Excepted Subsidiary; provided that (i) at
the time any Subsidiary of the Company is withdrawn from
status as an Excepted Subsidiary, such Subsidiary shall not
be liable with respect to any Indebtedness which it could
not become liable with respect to hereunder on the date of
such withdrawal if it were then a Specified Subsidiary, and
(ii) immediately after giving effect to such withdrawal, no
Event of Default or Unmatured Event of Default shall have
occurred and be continuing.
"S&P" means Standard & Poor's Corporation or any
successor thereto.
"Subsidiary" means, with respect to any Person,
any corporation, association, partnership or other business
entity, a majority (by number of votes) of the Voting
Securities of which is at the time owned by such Person or
by one or more of its Subsidiaries or by such Person and one
or more of its Subsidiaries.
"Syndication Agent" has the meaning assigned to
that term in the introduction to this Agreement.
"Tangible Net Worth" of any Person means the sum
of the amounts set forth on the balance sheet of such Person
as (a) the par or stated value of all outstanding capital
stock and (b) capital surplus, earned surplus and premium on
capital stock less (i) the par or stated value of all
redeemable preferred stock, (ii) that portion of the book
value of all assets which would be treated as intangibles
under generally accepted accounting principles, including
without limitation, all such items as goodwill, trademarks,
trade names, brands, copyrights, patents, licenses and
rights with respect to the foregoing and unamortized debt
discount and expenses, and (iii) all investments in or
advances to Excepted Subsidiaries appearing on the asset
side of such balance sheet.
"Taxes" has the meaning assigned to that term in
Section 2.11(a) hereof.
"Termination Date" means the earlier of December
17, 1998 (subject to extension as provided in Section
4.01(c) hereof), or the date on which the Revolving Credit
Commitments shall terminate in accordance with the terms of
this Agreement.
"Total Commitment" means at any time the
determination thereof is to be made, the aggregate amount of
the Revolving Credit Commitments of the Banks, as in effect
at such time.
"Transferee" has the meaning assigned to that term
in Section 10.06(g) hereof.
17
"Unmatured Event of Default" means an event, act
or occurrence which with the giving of notice or the lapse
of time (or both) would become an Event of Default.
"Voting Securities" means stock or partnership
interests of any class or classes (however designated), the
holders of which are at the time entitled, as such holders,
to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation,
association, partnership or other business entity in
question, other than stock or partnership interests having
the right so to vote solely by reason of the happening of a
contingency.
SECTION 1.02. Accounting Terms. All accounting
terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles as
in effect from time to time, including, without limitation,
applicable statements, bulletins and interpretations issued
by the Financial Accounting Standards Board and bulletins,
opinions, interpretations and statements issued by the
American Institute of Certified Public Accountants or its
committees. In the event that an actual or anticipated
change (which term for all purposes of this Agreement
includes, without limitation, the adoption of a new
statement of financial accounting standards) in generally
accepted accounting principles would affect the computation
of any dollar amounts or ratios referred to in the financial
covenants herein, the parties to the Agreement will,
promptly upon request, enter into negotiations in good faith
in an effort to agree upon amendments which will most nearly
preserve the original intent of such financial covenants.
Pending agreement on such amendments, such financial
covenants will remain in effect but will be measured by
reference to generally accepted accounting principles as in
effect immediately prior to such change. When used herein,
the term "financial statements" shall include the notes and
schedules thereto, but need not include such notes or
schedules when used with reference to such statements of any
Person as of any date other than the end of a fiscal year of
such Person.
ARTICLE II
LOAN PROVISIONS
SECTION 2.01. Revolving Credit Commitments;
Procedure for Requests. (a) Subject to the terms and
conditions of this Agreement, each Bank, severally and not
jointly, agrees to make revolving credit loans ("Revolving
Credit Loans") to the Company at any time and from time to
time on or after the Effective Date and until the
Termination Date (and, to the extent provided in Section
2.05(b), on or after the Termination Date); provided,
however, that (i) at no time shall the outstanding aggregate
principal amount of all Revolving Credit Loans made by a
Bank exceed its Proportional Share of the outstanding
aggregate principal amount of all Revolving Credit Loans
made by all Banks (notwithstanding the fact that the
aggregate principal amount outstanding at any time of all
Revolving Credit Loans and Competitive Loans, or, except as
set forth in clause (ii) below, any combination thereof,
made by a Bank may exceed the Revolving Credit Commitment of
such Bank then in effect), (ii) at no time prior to the
Termination Date shall the sum of the aggregate principal
amount outstanding of all Revolving Credit Loans of any Bank
exceed the Revolving Credit Commitment of such Bank, and
(iii) at no time prior to the Termination Date shall the sum
of the outstanding aggregate principal amount of all
Revolving Credit Loans and Competitive Loans exceed the
Total Commitment; provided further that nothing contained
herein shall be deemed to prohibit the making of, or to
relieve any Bank of its obligation to make, Revolving Credit
Loans
18
the proceeds of which are to be applied solely to the
repayment of principal of any Loan pursuant to Section 2.05
hereof. The Company may borrow, repay, prepay and reborrow
Revolving Credit Loans on or after the Effective Date and
prior to the Termination Date (and, to the extent provided
in Section 2.05(b), on or after the Termination Date). The
Revolving Credit Commitments shall automatically and
permanently terminate on the Termination Date, subject to
the right of the Company to refinance Revolving Credit Loans
to the extent provided in Section 2.05(b).
(b) To effect a Revolving Credit Borrowing, the
Company shall give the Administrative Agent notice (by
telephone (confirmed promptly in writing) or telecopier),
substantially in the form of Exhibit D hereto, (i) in the
case of a Revolving Credit Borrowing consisting of
Eurodollar Loans, not later than 12:00 noon, New York City
time, three Business Days before such Revolving Credit
Borrowing, and (ii) in the case of a Revolving Credit
Borrowing consisting of Alternate Base Rate Loans, not later
than 10:00 a.m., New York City time, on the proposed
Borrowing Date of such Revolving Credit Borrowing. Such
notice shall be irrevocable (except as provided in Section
2.07(e)(i), Section 2.11(c)(iii), Section 3.03(b) or Section
4.03(b)(i) hereof) and shall in each case refer to this
Agreement and specify (x) whether the Loans then being
requested are to be Eurodollar Loans or Alternate Base Rate
Loans, or a combination thereof, (y) the Borrowing Date with
respect to such Loans (which shall be a Business Day) and
the aggregate principal amount thereof, and (z) in the case
of Eurodollar Loans, the Interest Period with respect
thereto. If no Interest Period with respect to any
Eurodollar Loan is specified in any such notice, then the
Company shall be deemed to have selected an Interest Period
of one month's duration. The Administrative Agent shall
promptly advise the other Banks by telecopier of any notice
given pursuant to this Section 2.01(b) and of each Bank's
portion of the requested Revolving Credit Borrowing.
SECTION 2.02. Competitive Loans; Procedure for
Requests. (a) Subject to the terms and conditions of this
Agreement, the Company may from time to time request
Competitive Bid Banks to submit Competitive Bids, and the
Competitive Bid Banks may submit such Competitive Bids and,
from time to time on and after the Effective Date and prior
to the Termination Date, may make Competitive Loans in
accordance with the procedures set forth in this Section
2.02. At no time shall (i) the outstanding aggregate
principal amount of all Competitive Loans made by a
Competitive Bid Bank or (ii) the outstanding aggregate
principal amount of all Revolving Credit Loans and
Competitive Loans made by all Banks exceed the Total
Commitment, notwithstanding the fact that the aggregate
principal amount outstanding at any time of all Competitive
Loans made by a Competitive Bid Bank may exceed the
Revolving Credit Commitment of such Bank.
(b) To request Competitive Bids, the Company
shall give the Administrative Agent (by telephone (confirmed
in writing no later than 5:00 p.m., New York City time, on
the same day) or telecopier) a duly completed Competitive
Bid Request substantially in the form of Exhibit A hereto,
to be received by the Administrative Agent (i) in the case
of Eurodollar Loans, not later than 12:00 noon, New York
City time, five Business Days before a proposed Competitive
Borrowing, and (ii) in the case of Fixed Rate Loans, not
later than 11:00 a.m., New York City time, one Business Day
before a proposed Competitive Borrowing. No Alternate Base
Rate Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that
does not conform substantially to the format of Exhibit A
hereto may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly
notify the Company of such rejection by telephone (confirmed
promptly in
19
writing) or telecopier. A Competitive Bid Request shall in
each case refer to this Agreement and specify (x) whether
the Loans then being requested are to be Eurodollar Loans or
Fixed Rate Loans, (y) the Borrowing Date with respect to
such Loans (which shall be a Business Day) and the aggregate
principal amount thereof (which shall be in amounts such
that the aggregate principal amount of all Loans outstanding
immediately following the Borrowing of the Loans pursuant to
such Competitive Bid Request shall not exceed the Total
Commitment), and (z) the Interest Period with respect
thereto (which shall not end after the Termination Date).
The aggregate principal amount of the Competitive Borrowing
requested pursuant to any Competitive Bid Request shall not
be less than $50,000,000. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid,
the Administrative Agent shall invite by telecopier (in the
form set forth in Exhibit B hereto) the Competitive Bid
Banks to bid, on the terms and conditions of this Agreement,
to make Competitive Loans pursuant to the Competitive Bid
Request.
(c) Each Competitive Bid Bank may, in its sole
discretion, make one or more Competitive Bids to the Company
responsive to the Competitive Bid Request. Each Competitive
Bid by a Competitive Bid Bank must be in the form of Exhibit
C hereto and must be received by the Administrative Agent by
telecopier, (i) in the case of Eurodollar Loans, not later
than 2:00 p.m., New York City time, four Business Days
before a proposed Competitive Borrowing, and (ii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York
City time, on the Borrowing Date of the proposed Competitive
Borrowing. Competitive Bids that do not conform
substantially to the format of Exhibit C hereto may be
rejected by the Administrative Agent after conferring with,
and upon the instruction of, the Company, and the
Administrative Agent shall notify the Competitive Bid Bank
that submitted such Competitive Bid of such rejection as
soon as practicable. Each Competitive Bid shall refer to
this Agreement and specify (x) the principal amount (which
shall be in a minimum principal amount of $5,000,000 and in
an integral multiple of $1,000,000 and which may equal the
entire aggregate principal amount of the Competitive
Borrowing requested by the Company) of the Competitive Loan
that the Competitive Bid Bank is willing to make to the
Company, (y) the Competitive Bid Rate at which the
Competitive Bid Bank is prepared to make the Competitive
Loan, and (z) the Interest Period with respect thereto.
Except as provided in Section 2.07(e)(i), Section
2.11(c)(iii), Section 3.03(a), and Section 4.03(b)(i)
hereof, a Competitive Bid submitted by a Competitive Bid
Bank pursuant to this Section 2.02(c) shall be irrevocable.
If any Competitive Bid Bank shall elect not to make a
Competitive Bid with respect to a proposed Competitive
Borrowing, such Competitive Bid Bank shall so notify the
Administrative Agent by telecopier (i) in the case of
Eurodollar Loans, not later than 2:00 p.m., New York City
time, four Business Days before such proposed Competitive
Borrowing, and (ii) in the case of Fixed Rate Loans, not
later than 9:30 a.m., New York City time, on the Borrowing
Date of such proposed Competitive Borrowing; provided,
however, that the failure of any Competitive Bid Bank to
give such notice shall not cause such Bank to be obligated
to make any Competitive Loan as part of such Competitive
Borrowing.
(d) The Administrative Agent shall notify the
Company of all the Competitive Bids made, the Competitive
Bid Rate and the principal amount of each Competitive Loan
in respect of which a Competitive Bid was made and the
identity of the Competitive Bid Bank that made each bid;
such notice shall be given to the Company by telephone
(confirmed immediately by telecopier) not later than (i) 45
minutes (in the case of Competitive Bids for Fixed Rate
Loans) and (ii) 2 hours (in the case of other Competitive
Bids) after the latest time by which such Competitive Bids
were required to be received by the Administrative Agent
pursuant to Section 2.02(c) hereof. The
20
Administrative Agent shall send a copy of all Competitive
Bids to the Company for its records as soon as practicable
after completion of the bidding process set forth in this
Section 2.02.
(e) The Company may in its sole and absolute
discretion, subject only to the provisions of this Section
2.02(e), accept or reject any Competitive Bid referred to in
Section 2.02(d) hereof. The Company shall notify the
Administrative Agent (by telephone or telecopier) whether
and to what extent it has decided to accept or reject any or
all of the Competitive Bids referred to in Section 2.02(d)
hereof, (i) in the case of Eurodollar Loans, not later than
12:00 noon, New York City time, three Business Days before a
proposed Competitive Borrowing, and (ii) in the case of
Fixed Rate Loans, not later than 10:30 a.m., New York City
time, on the Borrowing Date of the proposed Competitive
Borrowing; provided, however, that (v) the failure by the
Company to give such notice shall be deemed to be a
rejection of all the Competitive Bids referred to in Section
2.02(d) hereof, (w) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if
the Company has rejected a Competitive Bid made at a lower
Competitive Bid Rate, (x) the aggregate principal amount of
the Competitive Borrowing to be made may not exceed the
principal amount of Competitive Loans requested by the
Company pursuant to the related Competitive Bid Request, (y)
if the Company shall accept Competitive Bids made at a
particular Competitive Bid Rate but shall be restricted by
other conditions hereof from borrowing the aggregate
principal amount of Competitive Loans in respect of which
Competitive Bids at such Competitive Bid Rate have been
made, then, to the extent of the aggregate principal amount
of the Competitive Borrowing to be made, the Company shall
accept a pro rata portion of each Competitive Bid made at
such Competitive Bid Rate based as nearly as possible on the
respective principal amounts of Competitive Loans for which
such Competitive Bids were made (provided that if the
available principal amount of Competitive Loans to be so
allocated is not sufficient to enable Competitive Loans to
be so allocated to each such Competitive Bid Bank in a
minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000, the Company shall select the
Competitive Bid Banks to be allocated such Competitive Loans
and shall round allocations up or down to the next higher or
lower multiple of $1,000,000 as it shall deem appropriate),
and (z) no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $5,000,000 and an integral
multiple of $1,000,000. If telephonic notice of acceptance
or rejection of a Competitive Bid is given by the Company to
the Administrative Agent pursuant to the immediately
preceding sentence, such notice shall be confirmed in
writing no later than (A) in the case of Eurodollar Loans
5:00 p.m., New York City time, on the day such notice is
given, or (B) in the case of Fixed Rate Loans, 1:00 p.m.,
New York City time, on the day such notice is given. Except
as provided in Section 2.07(e)(i), Section 2.11(c)(iii),
Section 3.03(a), and Section 4.03(b)(i) hereof, a notice
given by the Company pursuant to this Section 2.02(e) shall
be irrevocable.
(f) The Administrative Agent shall promptly
notify by telecopier each of the Competitive Bid Banks which
has submitted a Competitive Bid whether or not their
Competitive Bids have been accepted (and if so, in what
amount and at what Competitive Bid Rate), and each
successful Competitive Bid Bank shall thereupon become bound
to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(g) A Competitive Borrowing shall not be made
within five Business Days of the Borrowing Date of any other
Competitive Borrowing, unless the Company and the
Administrative Agent shall mutually agree otherwise.
21
(h) If the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Competitive
Bid Bank, it shall submit such bid to the Company one
quarter of an hour earlier than the latest time at which the
other Competitive Bid Banks are required to submit their
bids to the Administrative Agent pursuant to Section 2.02(c)
hereof.
SECTION 2.03. General Terms Relating to the
Loans. (a) Each Borrowing made by the Company on any
Borrowing Date shall be (i) in the case of Competitive
Loans, in an integral multiple of $1,000,000 and in a
minimum aggregate principal amount of $5,000,000 and (ii) in
the case of Revolving Credit Loans, in an integral multiple
of $10,000,000 and in a minimum aggregate principal amount
of $50,000,000. Competitive Loans shall be made by the
Competitive Bid Banks in accordance with Section 2.02(e)
hereof and Revolving Credit Loans shall be made by the Banks
ratably in accordance with their respective Revolving Credit
Commitments on the Borrowing Date of the Revolving Credit
Borrowing; provided, however, that the failure of any Bank
to make any Loan shall not in itself relieve any other Bank
of its obligation to lend hereunder.
(b) Each Competitive Loan shall be a Eurodollar
Loan or a Fixed Rate Loan, and each Revolving Credit Loan
shall be a Eurodollar Loan or an Alternate Base Rate Loan,
as the Company may request subject to and in accordance with
Section 2.01 or Section 2.02 hereof, as applicable. Each
Bank may at its option make any Eurodollar Loan by causing a
foreign branch or affiliate of such Bank to make such Loan;
provided, however, that (i) any exercise of such option
shall not affect the obligation of the Company to repay such
Loan to such Bank in accordance with the terms of this
Agreement, (ii) such Bank shall promptly advise the Company
of the exercise of such option, the name and address of such
foreign branch or affiliate and such other information with
respect to such branch or affiliate as the Company may
reasonably request, and (iii) the exercise of such option,
as of the time of such exercise, shall not materially
increase the amounts which would have been payable by the
Company to such Bank under this Agreement. Revolving Credit
Loans of more than one interest rate option may be
outstanding at the same time; provided, however, that,
unless the Administrative Agent and the Company shall
otherwise agree, the Company shall not be entitled to
request any Revolving Credit Loan or Competitive Loan which,
if made, would result in an aggregate of more than ten
separate Revolving Credit Loans of any Bank and ten separate
Competitive Loans being outstanding hereunder at any one
time. For purposes of the foregoing, Revolving Credit Loans
having different Interest Periods, regardless of whether
they commence on the same date, and Revolving Credit Loans
having different interest rate options, shall be considered
separate Loans.
(c) Subject to Section 2.05 hereof, each Bank
shall make available its portion, as appropriate, of each
Competitive Borrowing and Revolving Credit Borrowing on the
proposed Borrowing Date thereof by paying the amount
required to the Administrative Agent in New York, New York,
in Dollars, in immediately available funds not later than
11:00 a.m. (or 12:00 noon in the case of Alternate Base Rate
Loans or Fixed Rate Loans), New York City time, and the
Administrative Agent shall by 1:00 p.m., New York City time,
credit the amounts so received (or, subject to Section
2.03(d) hereof, its own funds but, in either case, in
Dollars in immediately available funds) to such account of
the Company as it shall designate in writing to the
Administrative Agent or, if Loans are not made on such date
because any condition precedent to a Borrowing herein
specified shall not have been met, promptly return the
amounts so received to the respective Banks.
22
(d) Unless the Administrative Agent shall have
been notified by a Bank prior to the Borrowing Date of any
Loan that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of the Loan to be
made on such Borrowing Date, the Administrative Agent may
assume that such Bank has made such proceeds available to
the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption
(but shall not be required to) make available to the Company
a corresponding amount. If, and only if, such notice is not
given and such corresponding amount is not in fact made
available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such
amount on demand from such Bank (or, if such Bank fails to
pay such amount forthwith upon such demand, from the
Company) together with interest thereon in respect of each
day during the period commencing on the date such amount was
made available to the Company and ending on (but excluding)
the date the Administrative Agent recovers such amount at a
rate per annum equal to (i) in the case of such Bank, the
Federal Funds Effective Rate and (ii) in the case of the
Company, the applicable Interest Rate in respect of such
Loan.
SECTION 2.04. Repayment of Loans; Evidence of
Debt. (a) The Company hereby unconditionally promises to
pay to the Administrative Agent for the account of each Bank
the then unpaid principal amount of each Revolving Credit
Loan and each Competitive Loan on the last day of the
Interest Period applicable to such Loan or on any earlier
date that shall be specified herein. Notwithstanding the
foregoing, the unpaid principal amount of each Revolving
Credit Loan and each Competitive Loan shall be due and
payable in full on the Maturity Date.
(b) Each Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness of the Company to such Bank resulting from each
Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time
hereunder.
(c) The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each
Loan made hereunder, (ii) whether each such Loan is a
Revolving Credit Loan or a Competitive Loan, (iii) the
Interest Rate applicable to each such Loan, (iv) the
Interest Period applicable to each such Loan, (v) the amount
of any principal or interest due and payable or to become
due and payable from the Company to each Bank hereunder and
(vi) the amount of any sum received by the Administrative
Agent hereunder for the account of the Banks and each Bank's
share thereof.
(d) The failure of any Bank or the Administrative
Agent to maintain the accounts referred to in Section
2.04(b) or Section 2.04(c) hereof or any error therein shall
not in any manner affect the obligation of the Company to
repay the Loans or to pay interest thereon in accordance
with the terms of this Agreement.
(e) Any Bank may request that Loans made by it be
evidenced by a promissory note. In such event, the Company
shall prepare, execute and deliver to such Bank a promissory
note payable to the order of such Bank (or, if requested by
such Bank, to such Bank and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon
shall at all times be represented by one or more promissory
notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note,
to such payee and its registered assigns). Any assignment
of such promissory note shall be made in accordance with the
provisions of Section 10.06 hereof.
23
SECTION 2.05. Refinancings. (a) Prior to the
Termination Date, the Company may refinance all or any part
of any Loan with a Loan or Loans of the same or a different
type made pursuant to Section 2.01 or Section 2.02 hereof;
provided, however, that the aggregate principal amount of
the new Borrowing shall not exceed the aggregate principal
amount of the Loans being refinanced on the date of such
Borrowing. Any Loan or part thereof so refinanced shall be
deemed to be repaid in accordance with Section 2.04 hereof
with the proceeds of a new Borrowing hereunder; provided,
however, that with respect to any new Borrowing which
results in any Bank extending a Loan in a different
principal amount than such Bank extended in the Loan being
refinanced (e.g., the refinancing of a Revolving Credit Loan
with a Competitive Loan), (i) if the principal amount
extended by a Bank in a refinancing is greater than the
principal amount extended by such Bank in the Borrowing
being refinanced, such Bank shall pay such difference to the
Administrative Agent for distribution to the Banks described
in (ii) below, and (ii) if the principal amount extended by
a Bank in the Borrowing being refinanced is greater than the
principal amount being extended by such Bank in the
refinancing, the Administrative Agent shall return the
difference to such Bank out of amounts received pursuant to
(i) above. If the Company shall not have repaid any
Revolving Credit Loan on the last day of the Interest Period
with respect thereto and shall not have given notice with
respect to the refinancing of such Loan in accordance with
the applicable provisions of Section 2.01 or Section 2.02
hereof, as appropriate, it shall be deemed to have elected
to refinance such Loan with a Revolving Credit Loan which is
an Alternate Base Rate Loan to be made on the last day of
the Interest Period of the Loan so refinanced.
(b) On or after the Termination Date and prior to
the Maturity Date, the Company may refinance all or any part
of any Revolving Credit Loan with a Revolving Credit Loan or
Loans of the same or a different type made pursuant to
Section 2.01 hereof; provided, however, that the aggregate
principal amount of the new Borrowing shall not exceed the
aggregate principal amount of the Loans being refinanced on
the date of such Borrowing. Any Loan or part thereof so
refinanced shall be deemed to be repaid in accordance with
Section 2.04 hereof with the proceeds of a new Borrowing
hereunder. If the Company shall not have repaid any
Revolving Credit Loan on the last day of the Interest Period
with respect thereto and shall not have given notice with
respect to the refinancing of such Loan in accordance with
the applicable provisions of Section 2.01 hereof, it shall
be deemed to have elected to refinance such Loan with a
Revolving Credit Loan which is an Alternate Base Rate Loan
to be made on the last day of the Interest Period of the
Loan so refinanced.
SECTION 2.06. Facility Fee. The Company agrees
to pay to each Bank, through the Administrative Agent, on
each March 31, June 30, September 30 and December 31 (the
first such payment to be made on December 31, 1997) and on
the Maturity Date, in immediately available funds, a
facility fee (a "Facility Fee") at a rate per annum equal to
the Applicable Facility Fee Percentage from time to time in
effect on the average daily amount of (a) prior to the
Termination Date, the Revolving Credit Commitment of such
Bank, whether used or unused, and (b) on and after the
Termination Date, the outstanding Loans of such Bank, in
each case during the Calendar Quarter (or shorter period
beginning on the Effective Date or ending on the Maturity
Date, as the case may be) then ended; provided, however,
that the amount payable by the Company under this paragraph
shall be reduced by any amounts paid on account of the
Facility Fees pursuant to Section 4.01 hereof. All Facility
Fees shall be computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may
be, and shall commence to accrue on the Effective Date.
24
SECTION 2.07. Reserve Requirements; Change in
Circumstances. (a) If after the date of this Agreement any
change in applicable law or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law but with
respect to which similarly situated banks generally comply)
(any such change, an "Increased Cost Change") (i) shall
change the basis of taxation of payments to any Bank of the
principal of or interest on any Eurodollar Loan or Fixed
Rate Loan made by such Bank or any other fees or amounts
payable hereunder (other than (x) taxes imposed on the
overall net income of such Bank by the jurisdiction in which
such Bank has its principal or lending office or by any
political subdivision or taxing authority therein (or any
tax which is enacted or adopted by such jurisdiction,
political subdivision or taxing authority as a direct
substitute for any such taxes) or (y) any tax, assessment,
or other governmental charge that would not have been
imposed but for the failure of any Bank to comply with any
certification, information, documentation, or other
reporting requirement), or (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, such Bank or (iii) shall
impose on such Bank or on the London Interbank Market any
other condition affecting this Agreement or any Eurodollar
Loan made by such Bank, and the result of any of the
foregoing shall be to increase the cost to such Bank of
making or maintaining any Eurodollar Loan or to reduce the
amount of any sum received or receivable by such Bank
hereunder (whether of principal, interest or otherwise) in
respect thereof by an amount deemed in good faith by such
Bank to be material, then, subject to Section 2.07(d)
hereof, such additional amount or amounts as will compensate
such Bank for such increase or reduction will be paid by the
Company to such Bank as provided in Section 2.07(c) hereof.
Any such amount determined pursuant to this Section 2.07(a)
shall be computed on the basis of the net effect of any
Increased Cost Changes incurred by such Bank from time to
time after the Effective Date of this Agreement.
(b) If any Bank shall have determined in good
faith that the adoption or issuance, after the date of this
Agreement, of any applicable law, rule, regulation,
guideline, request or directive regarding capital adequacy
(whether or not having the force of law but with respect to
which similarly situated banks generally comply) (a "Capital
Adequacy Rule"), or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof (any such
adoption, issuance or change of a Capital Adequacy Rule
being called a "Capital Adequacy Change"), or compliance
therewith by any Bank (or any lending office of such Bank),
has the net effect of reducing the rate of return on such
Bank's capital as a consequence of its commitment to make,
or the making or maintaining of, any Loans hereunder to a
level below that which such Bank would have achieved but for
such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital
adequacy and any Capital Adequacy Rule in effect as of the
date of this Agreement) by an amount deemed by such Bank to
be material, then from time to time the Company shall,
subject to Section 2.07(d) hereof, pay to such Bank such
additional amount or amounts as will compensate such Bank
for such reduction as provided in Section 2.07(c) hereof;
provided, however, that to the extent (i) a Bank shall
increase its level of capital above the level maintained by
such Bank on the date of this Agreement and there has not
been a Capital Adequacy Change, or (ii) there has been a
Capital Adequacy Change and a Bank shall increase its level
of capital by an amount greater than the increase
attributable (taking into consideration the same variables
taken into consideration in determining the level of capital
maintained by such Bank on the date of this Agreement) to
such Capital Adequacy Change, the Company shall not be
required to pay any amount or amounts
25
under this Agreement with respect to any such increase in
capital. Thus, for example, a Bank which is "adequately
capitalized" (as such term or any similar term is used by
any applicable bank regulatory agency having authority with
respect to such Bank) may not require the Company to make
payments in respect of increases in such Bank's level of
capital made under the circumstances described in clause (i)
or (ii) above which improve its capital position from
"adequately capitalized" to "well capitalized" (as such term
or any similar term is used by any applicable bank
regulatory agency having authority with respect to such
Bank).
(c) A certificate of each Bank setting forth such
amount or amounts as shall be necessary to compensate such
Bank (or Participant pursuant to Section 10.06(b) hereof) as
specified in paragraph (a) or (b) of this Section 2.07, as
the case may be, shall be delivered to the Company at the
end of each Calendar Quarter during which such Bank is an
Affected Bank and upon the taking by the Company in respect
of such Bank of one of the actions described in paragraph
(e)(ii) or (e)(iv) of this Section 2.07 and shall, if
submitted in good faith, be conclusive absent manifest
error; provided that any certificate delivered by a Bank
pursuant to this Section 2.07(c) shall (i) in the case of a
certificate in respect of amounts payable pursuant to
paragraph (a) of this Section 2.07, set forth in reasonable
detail the basis for and the calculation of such amounts,
and (ii) in the case of a certificate in respect of amounts
payable pursuant to paragraph (b) of this Section 2.07, (A)
set forth at least the same amount of detail in respect of
the calculation of such amount as such Bank provides in
similar circumstances to other similarly situated borrowers
from such Bank, and (B) include a statement by such Bank
that it has allocated to its Revolving Credit Commitment or
outstanding Loans a proportionately equal amount of any
reduction of the rate of return on such Bank's capital due
to a Capital Adequacy Rule as it has allocated to each of
its other commitments to lend or to each of its other
outstanding loans that are affected similarly by such
Capital Adequacy Rule. The Company shall pay each Bank the
amount shown as due on any such certificate upon the earlier
of (i) the date on which the Company takes one of the
actions in respect of any such Bank described in paragraph
(e)(ii) or (e)(iv) of this Section 2.07 and (ii) 30 days
after receipt by the Company of such certificate.
(d) Subject to the following provisions of this
Section 2.07(d), failure on the part of any Bank to demand
compensation for any amounts payable pursuant to paragraphs
(a) or (b) of this Section 2.07 with respect to any Interest
Period shall not constitute a waiver of such Bank's rights
to demand compensation for any such amounts with respect to
any other Interest Period. In the case of any Increased
Cost Change which is given retroactive effect to a date
prior to the adoption thereof, a Bank shall be entitled to
seek compensation in respect thereof pursuant to paragraph
(a) of this Section 2.07 for the period commencing on such
retroactive effective date and ending on the date on which
the Company takes one of the actions in respect of such Bank
described in paragraph (e)(ii) or (e)(iv) of this Section
2.07; provided, however, that (i) if such Bank shall fail to
notify the Company within 30 days after the date of official
promulgation of such Increased Cost Change that it will
demand such compensation, the period for which such Bank
shall be entitled to seek compensation in respect thereof
shall commence on the date which is 30 days prior to such
Bank's notice that it will demand compensation, and (ii) if
any Increased Cost Change is given retroactive effect to a
date which is more than three months prior to the date of
adoption thereof, the Company's liability to pay
compensation to such Bank in respect thereof for any period
prior to the date which is three months prior to the
adoption thereof shall, subject to the foregoing clause (i)
of this proviso, be equal to 50% of the amount required to
compensate such Bank in respect of such Increased Cost
Change with respect to such period. In the case of any
Increased
26
Cost Change which is given only prospective effect, a Bank
shall be entitled to seek compensation in respect thereof
pursuant to paragraph (a) of this Section 2.07 for the
period commencing on the later of (A) the date on which such
Increased Cost Change becomes effective and (B) the date 30
days prior to the notice by such Bank that it will demand
such compensation, and ending on the date on which the
Company takes one of the actions in respect of such Bank
described in paragraph (e)(ii) or (e)(iv) of this Section
2.07. In the case of any Capital Adequacy Change, a Bank
shall be entitled to seek compensation in respect thereof
pursuant to paragraph (b) of this Section 2.07 only with
respect to costs or reductions commencing on the later of
(A) the date on which such Capital Adequacy Rule becomes
effective and (B) the date 45 days prior to the notice by
such Bank that it will demand such compensation, and ending
on the date on which the Company takes one of the actions in
respect of such Bank described in paragraph (e)(ii) or
(e)(iv) of this Section 2.07.
(e) In the event that any Affected Bank shall
have given notice that it is entitled to claim compensation
pursuant to this Section 2.07, the Company may exercise any
one or more of the following options:
(i) If any such claim for compensation relates to
Loans then being requested by the Company pursuant to a
notice of Borrowing as provided in this Article II (or,
in the case of claims for compensation pursuant to
paragraph (g) of this Section 2.07, any such claim
relates to Loans outstanding during the Interest Period
most recently ended and the Company has requested
Eurodollar Loans pursuant to such a notice of
Borrowing), the Company may, not later than 12:00 noon,
New York City time, on the day which is three (3)
Business Days prior to the date on which the requested
Loans were to have been made, in the case of Eurodollar
Loans, or not later than 9:00 a.m., New York City time,
on the date on which the requested Loans were to have
been made, in the case of Fixed Rate Loans or Alternate
Base Rate Loans, by giving notice (by telephone
(confirmed in writing promptly thereafter) or
telecopier) to the Administrative Agent (which notice
the Administrative Agent shall transmit to each of the
Banks otherwise required to participate in the
requested Loans as soon as practicable thereafter)
irrevocably withdraw such notice of Borrowing.
(ii) The Company may request one or more of the
non-Affected Banks to take over all (but not part) of
each or any Affected Bank's then outstanding Loan(s)
and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and
obligations hereunder. If one or more Banks shall so
agree in writing (in this Section 2.07(e)(ii), in
Section 2.11(c)(i) hereof, in Section 2.12(i) hereof,
in Section 2.13(i) hereof and in Section 4.03(b)(ii)
hereof, collectively called the "Assenting Banks" and
individually called an "Assenting Bank") with respect
to an Affected Bank, (x) the Revolving Credit
Commitment of each Assenting Bank and the obligations
of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the
Revolving Credit Commitment and of the obligations of
such Affected Bank under this Agreement, and (y) each
Assenting Bank shall make Loans to the Company,
according to such Assenting Bank's respective Allocable
Share, in an aggregate principal amount equal to the
outstanding principal amount of the Loan(s) of such
Affected Bank, on a date mutually acceptable to the
Assenting Banks and the Company. The proceeds of such
Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank,
together with all interest accrued thereon and all
other amounts owing to such Affected Bank
27
hereunder (including any amounts payable pursuant to
Section 3.04 hereof in connection with such
prepayment), and, upon such assumption by the Assenting
Bank and prepayment by the Company, such Affected Bank
shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.11(b),
Section 10.02 and Section 10.07 hereof).
(iii) Upon notice (by telephone (confirmed in
writing promptly thereafter) or telecopier) to the
Administrative Agent (which shall advise each Bank
thereof as soon as practicable thereafter), the Company
may terminate the obligations of the Banks to make or
maintain Loans which result in the Affected Banks
making a demand for compensation pursuant to this
Section 2.07 and, in such event, the Company shall
refinance all such Loans with Loans which, at the time
of such refinancing, would not result in such Banks
making such demand for compensation, such refinancing
to be conducted in the manner contemplated by and
pursuant to Section 2.05 or Section 4.02 hereof.
(iv) (A) The Company may designate one or more
Replacement Lenders mutually acceptable to the Company
and the Administrative Agent (whose consent shall not
be unreasonably withheld) to assume the Revolving
Credit Commitment and the obligations of any such
Affected Bank hereunder, and to purchase the
outstanding Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank, for a purchase price
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank plus all interest accrued
and unpaid thereon and all other amounts owing to such
Affected Bank hereunder (including the amount which
would be payable to such Affected Bank pursuant to
Section 3.04 hereof if the purchase of its Loans
constituted a prepayment thereof contemplated by clause
(ii) of the first sentence of Section 3.04 hereof), and
upon such assumption and purchase by the Replacement
Lenders, each such Replacement Lender shall be deemed
to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate
one or more Replacement Lenders mutually acceptable to
the Company and the Administrative Agent (whose consent
shall not be unreasonably withheld) which shall upon a
date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit
Commitment and the obligations of such Affected Bank
under this Agreement and shall upon such date make
Loans to the Company in an aggregate principal amount
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such
Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank,
together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon
such Replacement Lenders making such Loans and such
prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this
Agreement and such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as
provided in Section 2.11(b), Section 10.02 and Section
10.07 hereof). Each such
28
Replacement Lender shall execute and deliver to the
Administrative Agent such documentation to evidence its
status as a "Bank" hereunder as shall be mutually
acceptable to the Company and the Administrative Agent.
The effectiveness of each Replacement Lender's
Revolving Credit Commitment, the making of such Loans
by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be
deemed to have occurred simultaneously for all purposes
hereof.
(f) If in respect of any Interest Period for a
Eurodollar Loan made by a Bank under Section 2.01 hereof
such Bank shall be required to maintain reserves against
"Eurocurrency liabilities" under Regulation D, the Company
shall pay to such Bank in accordance with this Section
2.07(f) an additional amount representing such Bank's actual
costs, if any, incurred during such Interest Period as a
result of the applicability of the foregoing reserves to
such Eurodollar Loan, which amount (i) shall be based on the
effective rate at which such reserve requirements are
imposed on such Bank for such Interest Period, (ii) shall be
allocated to the Company in no proportionately greater
amount than such Bank would allocate such costs to its other
borrowers of Eurodollars to which such costs are applicable
if the provisions of this Section 2.07(f) applied to all
such borrowers, and (iii) in any event shall not exceed the
product of the following for each day of such Interest
Period:
(A) the principal amount of the Eurodollar Loan
outstanding on such day made by such Bank to which such
Interest Period relates; and
(B) a percentage equal to (x) the result obtained
by dividing the Eurodollar Rate applicable to such
Eurodollar Loan by the number one minus the maximum
rate (expressed as a decimal) at which such reserve
requirements are imposed by the Board on such date,
minus (y) the Eurodollar Rate applicable to such
Eurodollar Loan; and
(C) a fraction the numerator of which is one and
the denominator of which is 360.
To be entitled to compensation pursuant to this Section
2.07(f) in respect of any Interest Period, such Bank must
notify the Company of its demand for such compensation
within 30 days after the end of such Interest Period. A
certificate of such Bank setting forth in reasonable detail
the basis for and the calculation of such amount necessary
to compensate such Bank pursuant to this Section 2.07(f)
shall be delivered to the Company with such notice and shall
be conclusive absent manifest error. In no event shall the
Company be obligated to make any payment to any Bank
pursuant to this Section 2.07(f) if such payment would
result in a duplication of payments pursuant to this Section
2.07(f) and any other provision of this Section 2.07.
(g) In the event that any Affected Bank shall
have given notice that it is entitled to claim compensation
pursuant to paragraph (f) of this Section 2.07, the Company
may exercise any one or more of the options set forth in
Section 2.07(e) hereof.
(h) In the event that the Company shall take any
of the actions contemplated by Section 2.07(e)(ii) or
Section 2.07(e)(iv) hereof, Schedule I and Schedule II
hereto shall be deemed amended to reflect the addition of
any Replacement Lender and any increases or decreases in the
Revolving Credit Commitments of the Affected Banks and the
Assenting Banks, as the case may be.
29
SECTION 2.08. Pro Rata Treatment. Except as
permitted under Section 2.05, Section 2.07, Section 2.11,
Section 2.12 and Section 4.03 hereof, (i) each payment by
the Company on account of any fees pursuant to Section 2.06
hereof shall be made pro rata in accordance with the
respective amounts due and owing, (ii) each payment by the
Company on account of principal of and interest on the Loans
shall be made pro rata according to the respective amounts
due and owing, and (iii) each prepayment on account of
principal of the Loans shall be applied to the Revolving
Credit Loans and the Competitive Loans, as directed by the
Company, pro rata according to the respective amounts
outstanding.
SECTION 2.09. Payments. Except for payments made
directly to a Bank or Banks under other provisions of this
Agreement, the Company shall make each payment hereunder and
under any instrument delivered hereunder not later than
12:00 noon (New York City time) on the day when due, in
Dollars, to the Administrative Agent at its offices at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the account of
the Banks, in immediately available funds. The
Administrative Agent shall promptly distribute to each Bank
its proper share of each payment so received.
SECTION 2.10. Payments on Business Days.
Whenever any payment to be made hereunder shall be due on a
day which is not a Business Day, then such payment shall be
made on the next succeeding Business Day (unless, with
respect to a payment relating to a Eurodollar Loan, such day
would fall in another calendar month, in which event payment
shall be made on the next preceding Business Day).
SECTION 2.11. Net Payments. (a) All payments
under this Agreement shall be made without setoff or
counterclaim and in such amounts as may be necessary in
order that all such payments (after deduction or withholding
for or on account of any present or future taxes, levies,
imposts, duties or other charges of whatsoever nature
imposed by any government or any political subdivision or
taxing authority thereof (herein collectively called the
"Taxes") other than any Taxes on or measured by the net
income, net worth or shareholders' capital of a Bank or a
Participant pursuant to the income tax laws of the
jurisdiction where such Bank's principal or lending office
is located or where such Participant's principal or
participating office is located) shall not be less than the
amounts otherwise specified to be paid under this Agreement;
provided that if any Bank or any Participant fails to comply
with the applicable provisions of Section 10.06(g) hereof or
paragraph (b) of this Section 2.11, as the case may be,
then, all such payments to such Bank or to any Bank which
has sold a participation pursuant to Section 10.06(b) hereof
shall be net of any amounts the Company is required to
withhold under applicable law. For a Bank to be entitled to
compensation pursuant to this Section 2.11 (i) in the case
of compensation for United States Federal income or
withholding Taxes in respect of any Interest Period, such
Bank must notify the Company within 30 days after the end of
such Interest Period and (ii) in the case of compensation
for any United States Tax other than a United States Federal
income or withholding Tax in respect of any Interest Period,
such Bank must notify the Company within 30 days after such
Bank receives a written claim for such Tax from any
government, political subdivision or taxing authority with
respect to such Interest Period. A certificate as to any
additional amounts payable to any Bank under this Section
2.11 submitted to the Company by such Bank shall show in
reasonable detail the amount payable and the calculations
used to determine such amount and shall be conclusive and
binding upon the parties hereto, in the absence of manifest
error. With respect to each deduction or withholding for or
on account of any Taxes, the Company shall promptly (and in
any event not later than 45 days thereafter) furnish to each
Bank such certificates, receipts and
30
other documents as may be required (in the reasonable
judgment of such Bank) to establish any tax credit to which
such Bank may be entitled.
(b) Each Bank that is not incorporated under the
laws of the United States or any State thereof agrees to
file with the Administrative Agent and the Company, in
duplicate, (i) on or before the later of (A) the Effective
Date and (B) the date such Bank becomes a Bank under this
Agreement and (ii) thereafter, for each taxable year of such
Bank (in the case of a Form 4224) or for each third taxable
year of such Bank (in the case of any other form) during
which interest or fees arising under this Agreement are
received, unless not legally able to do so as a result of a
change in United States income tax law enacted, or treaty
promulgated, after the date specified in the preceding
clause (i), on or prior to the immediately following due
date of any payment by the Company hereunder (or at any
other time as required under United States income tax law),
a properly completed and executed copy of either Internal
Revenue Service Form 4224 or Internal Revenue Service Form
1001 and Internal Revenue Service Form W-8 or Internal
Revenue Service Form W-9 and any additional form necessary
for claiming complete exemption from United States
withholding taxes (or such other form as is required to
claim complete exemption from United States withholding
taxes), if and as provided by the Code, regulations or other
pronouncements of the United States Internal Revenue
Service, and the Bank warrants to the Company that the form
so filed will be true and complete; provided that such
Bank's failure to complete and execute such Form 4224 or
Form 1001, or Form W-8 or Form W-9, as the case may be, and
any such additional form (or any successor form or forms)
shall not relieve the Company of any of its obligations
under this Agreement, except as otherwise provided in this
Section 2.11. In the event that the Company is required, or
has been notified by the relevant taxing authority that it
will be required, to either withhold or make payment of
Taxes with respect to any payments to be made by the Company
under this Agreement to any transferor Bank and such
requirement or notice arises as a result of the sale of a
participation by such transferor Bank pursuant to Section
10.06(b) hereof, such transferor Bank shall, upon request by
the Company, accompanied by a certificate setting forth in
reasonable detail the basis for such request, provide to the
Company copies of all tax forms required to be provided to
such transferor Bank pursuant to Section 10.06(g) hereof by
the Participant which purchased such participation. The
obligation of each transferor Bank to provide to the Company
such tax forms shall survive the termination of this
Agreement or, if earlier, the termination of the Revolving
Credit Commitment of such transferor Bank.
(c) In the event that any Affected Bank shall
have given notice that it is entitled to claim compensation
pursuant to this Section 2.11, the Company may at any time
thereafter exercise any one or more of the following
options:
(i) The Company may request one or more of the
non-Affected Banks to take over all (but not part) of
each or any Affected Bank's then outstanding Loan(s)
and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and
obligations hereunder. If one or more Banks shall so
agree in writing with respect to an Affected Bank, (x)
the Revolving Credit Commitment of each Assenting Bank
and the obligations of such Assenting Bank under this
Agreement shall be increased by its respective
Allocable Share of the Revolving Credit Commitment and
of the obligations of such Affected Bank under this
Agreement, and (y) each Assenting Bank shall make Loans
to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal
amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank, on a date mutually
acceptable to the Assenting
31
Banks and the Company. The proceeds of such Loans,
together with funds of the Company, shall be used to
prepay the Loan(s) of such Affected Bank, together with
all interest accrued thereon, and all other amounts
owing to such Affected Bank hereunder (including any
amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment), and, upon such
assumption by the Assenting Banks and prepayment by the
Company, such Affected Bank shall cease to be a "Bank"
for purposes of this Agreement and shall no longer have
any obligations hereunder (except as provided in
Section 2.11(b), Section 10.02 and Section 10.07
hereof).
(ii) (A) The Company may designate one or more
Replacement Lenders mutually acceptable to the Company
and the Administrative Agent (whose consent shall not
be unreasonably withheld) to assume the Revolving
Credit Commitment and the obligations of any such
Affected Bank hereunder, and to purchase the
outstanding Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank, for a purchase price
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank plus all interest accrued
thereon and all other amounts owing to such Affected
Bank hereunder (including the amount which would be
payable to such Affected Bank pursuant to Section 3.04
hereof if the purchase of its Loans constituted a
prepayment thereof contemplated by clause (ii) of the
first sentence of Section 3.04 hereof), and upon such
assumption and purchase by the Replacement Lenders,
each such Replacement Lender shall be declared to be a
"Bank" for purposes of this Agreement and such Affected
Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.11(b),
Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate
one or more Replacement Lenders mutually acceptable to
the Company and the Administrative Agent (whose consent
shall not be unreasonably withheld) which shall upon a
date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit
Commitment and the obligations of such Affected Bank
under this Agreement and shall upon such date make
Loans to the Company in an aggregate principal amount
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such
Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank,
together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon
such Replacement Lenders making such Loans and such
prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this
Agreement and such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as
provided in Section 2.11(b), Section 10.02 and Section
10.07 hereof). Each such Replacement Lender shall
execute and deliver to the Administrative Agent such
documentation to evidence its status as a "Bank"
hereunder as shall be mutually acceptable to the
Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving
Credit Commitment, the making of such Loans by such
Replacement Lenders and the prepayment by the Company
of the Loan(s) of such Affected Bank shall be deemed to
have occurred simultaneously for all purposes hereof.
32
(iii) If any such claim for compensation relates
to Loans then being requested by the Company pursuant
to a notice of Borrowing as provided in Article II
hereof, the Company may, not later than 12:00 noon, New
York City time, on the day which is three (3) Business
Days prior to the date on which the requested Loans
were to have been made, in the case of Eurodollar
Loans, or not later than 9:00 a.m., New York City time,
on the date on which the requested Loans were to have
been made, in the case of Fixed Rate Loans or Alternate
Base Rate Loans, by giving notice (by telephone
(confirmed in writing promptly thereafter) or
telecopier) to the Administrative Agent (which notice
the Administrative Agent shall transmit to each of the
Banks otherwise required to participate in the
requested Loans as soon as practicable thereafter)
irrevocably withdraw such notice of Borrowing.
(d) In the event the Company shall take any of
the actions contemplated by Section 2.11(c)(i) or Section
2.11(c)(ii) hereof, Schedule I and Schedule II hereto shall
be deemed amended to reflect the addition of any Replacement
Lender and any increases or decreases in the Revolving
Credit Commitments of the Affected Banks and the Assenting
Banks, as the case may be.
SECTION 2.12. Failed and Credit-Impaired Banks.
If (a) a Bank shall be adjudged bankrupt or insolvent, or if
a receiver of a Bank or of its property shall be appointed,
or if any public officer shall take charge or control of a
Bank or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if a Bank
shall default in respect of its obligation to make Loans
hereunder, (b) any of Xxxxx'x, S&P or Thomson BankWatch,
Inc. shall assign a rating to a Bank or its senior,
unsecured, non-credit-enhanced, long-term indebtedness for
borrowed money which shall be classified by such rating
agency as below investment grade, or, in the case of Thomson
BankWatch, Inc., such rating shall be below C/D, or (c) the
Company shall deliver to the Administrative Agent a notice
stating that, as to any Bank which has senior, unsecured,
non-credit-enhanced, long-term indebtedness for borrowed
money which is not rated by any of the rating agencies
referred to in the preceding clause (b), that it reasonably
believes such Bank will become subject to any of the events
referred to in clause (a) above or become unable to perform
its obligations as a Bank hereunder, then the Company may at
any time thereafter, subject to applicable law, exercise any
one or more of the following options:
(i) The Company may request one or more of the
non-Affected Banks to take over all (but not part) of
each or any Affected Bank's then outstanding Loan(s)
and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and
obligations hereunder. If one or more Banks shall so
agree in writing with respect to an Affected Bank, (x)
the Revolving Credit Commitment of each Assenting Bank
and the obligations of such Assenting Bank under this
Agreement shall be increased by its respective
Allocable Share of the Revolving Credit Commitment and
of the obligations of such Affected Bank under this
Agreement, and (y) each Assenting Bank shall make Loans
to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal
amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank, on a date mutually
acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the
Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued
thereon and all other amounts owing to such Affected
Bank hereunder (excluding, in the case of an event
referred to in clause (a) of
33
Section 2.12, any amounts payable pursuant to Section
3.04 hereof in connection with such prepayment), and,
upon such assumption by the Assenting Bank and
prepayment by the Company, such Affected Bank shall
cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except
as provided in Section 2.11(b), Section 10.02 and
Section 10.07 hereof).
(ii) (A) The Company may designate one or more
Replacement Lenders mutually acceptable to the Company
and the Administrative Agent (whose consent shall not
be unreasonably withheld) to assume the Revolving
Credit Commitment and the obligations of any such
Affected Bank hereunder, and to purchase the
outstanding Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank, for a purchase price
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank plus all interest accrued
and unpaid thereon and all other amounts owing to such
Affected Bank hereunder (including the amount which
would be payable to such Affected Bank pursuant to
Section 3.04 hereof if the purchase of its Loans
constituted a prepayment thereof contemplated by clause
(ii) of the first sentence of Section 3.04 hereof), and
upon such assumption and purchase by the Replacement
Lenders, each such Replacement Lender shall be deemed
to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate
one or more Replacement Lenders mutually acceptable to
the Company and the Administrative Agent (whose consent
shall not be unreasonably withheld) which shall upon a
date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit
Commitment and the obligations of such Affected Bank
under this Agreement and shall upon such date make
Loans to the Company in an aggregate principal amount
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such
Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank,
together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon
such Replacement Lenders making such Loans and such
prepayment by the Company, such Replacement Lenders
shall be deemed to be "Banks" for purposes of this
Agreement and such Affected Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as
provided in Section 2.11(b), Section 10.02 and Section
10.07 hereof). Each such Replacement Lender shall
execute and deliver to the Administrative Agent such
documentation to evidence its status as a "Bank"
hereunder as shall be mutually acceptable to the
Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving
Credit Commitment, the making of such Loans by such
Replacement Lenders and the prepayment by the Company
of the Loan(s) of such Affected Bank shall be deemed to
have occurred simultaneously for all purposes hereof.
In the event the Company shall take any of the
actions contemplated by Section 2.12(i) or Section 2.12(ii)
hereof, Schedule I and Schedule II hereto shall be deemed
amended to reflect the addition of any Replacement Lender
and any increases or
34
decreases in the Revolving Credit Commitments of the
Affected Banks and the Assenting Banks, as the case may be.
SECTION 2.13. Replacement of Non-Continuing
Banks. If a Bank shall withhold consent to an extension of
the Termination Date requested in accordance with Section
4.01(c)(ii) hereof, then the Company may at any time
thereafter, subject to applicable law, exercise any one or
more of the following options:
(i) The Company may request one or more of the
non-Affected Banks to take over all (but not part) of
each or any Affected Bank's then outstanding Loan(s)
and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and
obligations hereunder. If one or more Banks shall so
agree in writing with respect to an Affected Bank, (x)
the Revolving Credit Commitment of each Assenting Bank
and the obligations of such Assenting Bank under this
Agreement shall be increased by its respective
Allocable Share of the Revolving Credit Commitment and
of the obligations of such Affected Bank under this
Agreement, and (y) each Assenting Bank shall make Loans
to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal
amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank, on a date mutually
acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the
Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued
thereon and all other amounts owing to such Affected
Bank hereunder and, upon such assumption by the
Assenting Bank and prepayment by the Company, such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof).
(ii) (A) The Company may designate one or more
Replacement Lenders mutually acceptable to the Company
and the Administrative Agent (whose consent shall not
be unreasonably withheld) to assume the Revolving
Credit Commitment and the obligations of any such
Affected Bank hereunder, and to purchase the
outstanding Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank, for a purchase price
equal to the outstanding principal amount of the
Loan(s) of such Affected Bank plus all interest accrued
and unpaid thereon and all other amounts owing to such
Affected Bank hereunder (including the amount which
would be payable to such Affected Bank pursuant to
Section 3.04 hereof if the purchase of its Loans
constituted a prepayment thereof contemplated by clause
(ii) of the first sentence of Section 3.04 hereof), and
upon such assumption and purchase by the Replacement
Lenders, each such Replacement Lender shall be deemed
to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate
one or more Replacement Lenders mutually acceptable to
the Company and the Administrative Agent (whose consent
shall not be unreasonably withheld) which shall upon a
date mutually agreed upon by the Company and such
Replacement Lenders assume the Revolving Credit
Commitment and the obligations of such Affected Bank
under this Agreement and shall upon such date make
Loans to the Company
35
in an aggregate principal amount equal to the
outstanding principal amount of the Loan(s) of such
Affected Bank. The proceeds of such Loans, together
with funds of the Company, shall be used to prepay the
Loan(s) of such Affected Bank, together with all
interest accrued thereon and all other amounts owing to
such Affected Bank hereunder (including any amounts
payable pursuant to Section 3.04 hereof in connection
with such prepayment), and, upon such Replacement
Lenders making such Loans and such prepayment by the
Company, such Replacement Lenders shall be deemed to be
"Banks" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof). Each
such Replacement Lender shall execute and deliver to
the Administrative Agent such documentation to evidence
its status as a "Bank" hereunder as shall be mutually
acceptable to the Company and the Administrative Agent.
The effectiveness of each Replacement Lender's
Revolving Credit Commitment, the making of such Loans
by such Replacement Lenders and the prepayment by the
Company of the Loan(s) of such Affected Bank shall be
deemed to have occurred simultaneously for all purposes
hereof.
In the event the Company shall take any of the
actions contemplated by Section 2.13(i) or Section 2.13(ii)
hereof, Schedule I and Schedule II hereto shall be deemed
amended to reflect the addition of any Replacement Lender
and any increases or decreases in the Revolving Credit
Commitments of the Affected Banks and the Assenting Banks,
as the case may be.
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. Interest on Loans. (a) Subject to
the provisions of Section 3.02 hereof, each Eurodollar Loan
shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of
360 days) equal to the Eurodollar Rate for the Interest
Period in effect for such Loan plus (i) in the case of each
Competitive Loan, the Margin specified by a Bank with
respect to such Loan in its Competitive Bid submitted
pursuant to Section 2.02(c) hereof, and (ii) in the case of
each Revolving Credit Loan, the Applicable Margin. Interest
on each Eurodollar Loan shall be payable on each Interest
Payment Date applicable thereto.
(b) Subject to the provisions of Section 3.02
hereof, each Alternate Base Rate Loan shall bear interest at
a rate per annum (computed on the basis of the actual number
of days elapsed (i) over a year of 365 or 366 days, as the
case may be, if the Alternate Base Rate is based on the
Prime Rate, and (ii) over a year of 360 days if the
Alternate Base Rate is based on the Federal Funds Effective
Rate) equal to the Alternate Base Rate. Interest on each
Alternate Base Rate Loan shall be payable on each Interest
Payment Date applicable thereto.
(c) Subject to the provisions of Section 3.02
hereof, each Fixed Rate Loan shall bear interest at a rate
per annum (computed on the basis of the actual number of
days elapsed over a year of 360 days) equal to the fixed
rate of interest offered by the Competitive Bid Bank making
such Loan and accepted by the Company pursuant to
36
Section 2.02 hereof. Interest on each Fixed Rate Loan shall
be payable on each Interest Payment Date applicable thereto.
(d) Interest on each Loan shall accrue from and
including the first day of the Interest Period with respect
to such Loan to but excluding the last day of such Interest
Period.
SECTION 3.02. Interest on Overdue Amounts. If
the Company shall default in the payment when due of the
principal of any Loan or of any other amount due hereunder
(other than any amount not paid as a result of a Bank
Funding Default for the period from which such Bank Funding
Default commences to the date on which the failure to pay
such amount due would become an Event of Default), the
Company shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount from
the date such amount shall have become due up to (but not
including) the date of actual payment thereof (x) for other
than Eurodollar Loans, accruing on a daily basis, at a rate
per annum (computed on the basis of a year of 365 or 366
days, as the case may be, if the Alternate Base Rate is
based on the Prime Rate or on the basis of a year of 360
days if the Alternate Base Rate is based on the Federal
Funds Effective Rate) which is equal to the sum of (i) the
Alternate Base Rate from time to time in effect, plus (ii)
two percent (2%) per annum, or (y) for Eurodollar Loans,
accruing on a daily basis at a rate per annum (computed on
the basis of a year of 360 days) which is two and one-half
percent (2-1/2%) per annum in excess of the rate determined
by the Administrative Agent two (2) Business Days prior to
the beginning of periods of one day, one week, one month,
two months or three months (as the Administrative Agent
shall select in its sole discretion from time to time during
the continuation of such default), the first of which
periods shall commence on the date such amount shall have
become due, as the rate at which the Administrative Agent is
offered deposits in Dollars as of 11:00 a.m., London time,
by prime banks in the London Interbank Eurodollar market for
delivery on the first day of any such period and for the
approximate number of days comprised therein, in an amount
comparable to the aggregate amount due. If the Company
shall default in the payment when due of the principal of
any Loan or of any other amount due hereunder as a result of
a Bank Funding Default, for the period from which such Bank
Funding Default commences to the date on which the failure
to pay such amount due would become an Event of Default or,
if earlier, to (but not including) the date of actual
payment thereof, the Company shall on demand from time to
time pay interest, to the extent permitted by law, on such
defaulted amount at a rate per annum equal to (x) for other
than Eurodollar Loans, the Alternate Base Rate (computed on
the basis of a year of 365 or 366 days, as the case may be,
if the Alternate Base Rate is based on the Prime Rate or on
the basis of a year of 360 days if the Alternate Base Rate
is based on the Federal Funds Effective Rate), or (y) for
any Eurodollar Loan, until the last day of the Interest
Period therefor, at the Interest Rate applicable to such
Eurodollar Loan determined in accordance with the provisions
of Section 3.01(a) hereof, and thereafter, in accordance
with clause (x) above; provided, however, that interest
payable by the Company for the period set forth above on
defaulted amounts not paid to a Bank as a result of such
Bank's Bank Funding Default shall be payable at a rate per
annum equal to the lesser of (i) the Interest Rate that
would have been applicable to the Loan or Loans that were
the subject of such Bank's Bank Funding Default, and (ii)
the applicable Interest Rate set forth in clause (x) or (y)
above, as the case may be.
SECTION 3.03. Inability to Determine Eurodollar
Rate. (a) In the event, and on each occasion, that the
Company has accepted a Competitive Bid with respect to a
Eurodollar Loan and, on or before the date on which the
Eurodollar Rate for the Interest
37
Period relating to such Loan is to be determined, the
Administrative Agent shall have determined that by reason of
circumstances affecting the London Interbank Eurodollar
market or affecting the position of any Reference Bank in
such market, adequate and fair means do not exist for
ascertaining the Interest Rate applicable to such Loan
during such Interest Period, then, and in any such event,
the Competitive Bid Request submitted by the Company with
respect to such Loan and the Competitive Bid submitted by
the Competitive Bid Bank and accepted by the Company with
respect to such Loan shall both be deemed to be rescinded
and of no force and effect whatsoever. The Administrative
Agent shall immediately give notice of such determination by
telephone (confirmed by telecopier) to the Company and to
such Competitive Bid Bank. Each such determination by the
Administrative Agent shall be conclusive and binding upon
the parties hereto in the absence of manifest error.
(b) In the event, and on each occasion, that the
Company has submitted a Revolving Credit Borrowing Request
for a Eurodollar Loan and, on or before the date on which
the Eurodollar Rate for the Interest Period relating to such
Loan is to be determined, the Administrative Agent shall
have determined that by reason of circumstances affecting
the London Interbank Eurodollar market or affecting the
position of any Reference Bank in such market, adequate and
fair means do not exist for ascertaining the Interest Rate
applicable to such Loan during such Interest Period, then,
and in any such event, such Revolving Credit Borrowing
Request shall be deemed to be rescinded and of no force and
effect whatsoever. The Administrative Agent shall
immediately give notice of such determination by telephone
(confirmed by telecopier) to the Company and the Banks.
Each such determination by the Administrative Agent shall be
conclusive and binding upon the parties hereto in the
absence of manifest error.
SECTION 3.04. Indemnity. The Company shall
compensate each Bank, upon written request by such Bank
(which request shall set forth the basis for requesting such
amounts), for all reasonable losses and expenses in respect
of any interest paid by such Bank (or its lending branch or
affiliate) to lenders of funds borrowed by it or deposited
with it to make or maintain its Loans (other than Alternate
Base Rate Loans) which such Bank (or its lending branch or
affiliate) may sustain, to the extent not otherwise
compensated for hereunder and not mitigated by the
reemployment of such funds: (i) if for any reason (other
than a default by such Bank) a Borrowing of any Loan does
not occur on a date specified therefor in a notice of
Borrowing given pursuant to Article II hereof, (ii) if any
prepayment (other than a prepayment under Section 2.12(i)
resulting from an event referred to in clause (a) of Section
2.12 hereof) or repayment of its Loans (other than Alternate
Base Rate Loans) occurs on a date which is not the
expiration date of the relevant Interest Period, (iii) if
any prepayment of its Loans (other than Alternate Base Rate
Loans) is not made on any date specified in a notice of
prepayment given by the Company, or (iv) as a consequence of
any default by the Company under this Agreement. Without
prejudice to the foregoing, the Company shall indemnify each
Bank against any loss or expense which such Bank (or its
lending branch or affiliate) may sustain or incur as a
consequence of the default by the Company in payment of
principal of or interest on any Loan (other than any
Alternate Base Rate Loan), or any part thereof, or of any
amount due under this Agreement, including, but not limited
to, any premium or penalty incurred by such Bank (or its
lending branch or affiliate), in respect of funds borrowed
by it or deposited with it for the purpose of making or
maintaining such Loan (other than any Alternate Base Rate
Loan), as determined by such Bank in the exercise of its
sole discretion. A certificate as to any such loss or
expense (including calculations, in reasonable detail,
showing how such Bank computed such loss or expense) shall
be promptly submitted by such Bank to the
38
Company (with a copy to the Administrative Agent) and shall,
in the absence of manifest error, be conclusive and binding
as to the amount thereof.
SECTION 3.05. Rate Determination Conclusive. The
applicable Interest Rate for each Interest Period with
respect to each Loan (other than any Fixed Rate Loan) shall
be determined by the Administrative Agent and shall be
conclusive and, subject to Section 3.03 and Section 4.03
hereof, binding upon the parties hereto, in the absence of
manifest error. The Administrative Agent shall, at the
request in writing of the Company or any Bank, deliver to
the Company or such Bank a statement showing the
computations used by the Administrative Agent in determining
any Interest Rate in respect of the Loans payable by the
Company.
ARTICLE IV
REDUCTION, TERMINATION OR EXTENSION OF THE
REVOLVING CREDIT COMMITMENTS AND PREPAYMENTS
SECTION 4.01. Reduction, Termination or Extension
of the Total Commitment. (a) The Company may, from time to
time on at least five (5) Business Days' prior notice (by
telephone (confirmed in writing promptly thereafter) or
telecopier) received by the Administrative Agent (which
shall advise each Bank thereof as soon as practicable
thereafter), permanently reduce the Total Commitment (such
reduction shall reduce each Bank's Revolving Credit
Commitment ratably according to its respective Proportional
Share of the amount of such reduction and Schedule I hereto
shall be deemed amended to reflect the reduction in such
Revolving Credit Commitments) but only upon (i) repayment of
that portion of the aggregate unpaid principal amount of all
Revolving Credit Loans which exceeds the amount of the Total
Commitment as so reduced (such repayment to be applied to
each Bank's Revolving Credit Loans in the same proportion as
its Revolving Credit Commitment is reduced), and (ii)
payment to the Administrative Agent, for the ratable account
of the Banks, of the Facility Fees on the portion of the
Total Commitment so reduced which have accrued through the
date of such reduction; provided, however, the Company may
not so reduce the Total Commitment at any time to an amount
less than the aggregate principal amount of all Competitive
Loans then outstanding. Any such reduction shall be in an
aggregate amount of $50,000,000 or an integral multiple of
$10,000,000 in excess of $50,000,000. The Company may at
any time, on like notice, terminate the Total Commitment
(and each Bank's Revolving Credit Commitment) upon payment
in full of all Loans and the accrued interest thereon and
the Facility Fees accrued through the date of such
termination; provided, however, that the Company may not
terminate the Total Commitment at any time that Competitive
Loans are then outstanding.
(b) The Company shall reduce the Total Commitment
pursuant to Section 4.01(a) hereof (or, after the
Termination Date, repay Loans without refinancing such Loans
pursuant to Section 2.05(b) hereof) by the end of the
calendar quarter next succeeding the calendar quarter in
which Net Proceeds of any Specified Asset Disposition shall
have been received (such reduction or prepayment shall
reduce each Bank's Revolving Credit Commitment or
outstanding Loans ratably according to its respective
Proportional Share of the amount of such reduction or
prepayment and Schedule I hereto shall be deemed amended to
reflect the reduction in such Revolving Credit Commitments)
by the amount (if any) by which the Net Proceeds of
Specified Asset
39
Dispositions after the Effective Date and prior to the last
day of the calendar quarter in which the Net Proceeds are
received exceed the sum of (i) the aggregate amount of all
reductions of the Total Commitment made pursuant to Section
4.01(a) hereof prior to the end of such succeeding calendar
quarter and (ii) the aggregate amount of the Revolving
Credit Loans repaid after the Termination Date and not
refinanced pursuant to Section 2.05(b) hereof prior to the
end of such succeeding calendar quarter. On the date of any
such reduction of the Revolving Credit Commitments, (i) the
Company shall repay that portion of the aggregate unpaid
principal amount of all Revolving Credit Loans which exceeds
the amount of the Total Commitment as so reduced (such
repayment to be applied to each Bank's Revolving Credit
Loans in the same proportion as its Revolving Credit
Commitment is reduced), and (ii) the Company shall pay to
the Administrative Agent, for the ratable account of the
Banks, the Facility Fees on the portion of the Total
Commitment so reduced which have accrued through the date of
such reduction.
(c)(i) The Company may, upon notice (by telephone
(confirmed in writing promptly thereafter) or telecopier)
received by the Administrative Agent (which shall advise
each Bank thereof as soon as practicable thereafter) not
earlier than sixty (60) days and not later than fifty (50)
days prior to the Initial Termination Date, request that the
Banks extend the Termination Date for an additional 364 days
from the Initial Termination Date. Each Bank shall, by
notice to the Company and the Administrative Agent given not
later than the fifteenth (15th) day after the date of the
Company's notice, advise the Company and the Administrative
Agent whether or not such Bank agrees to such extension (and
any Bank that does not so advise the Company on or before
such day shall be deemed to have advised the Company that it
will not agree to such extension).
(ii) If (and only if) Banks holding Revolving
Credit Commitments that represent at least 66 2/3% of the
Revolving Credit Commitments shall have agreed to extend the
Initial Termination Date (such Banks being called the
"Continuing Banks" and the Banks that shall not have agreed
to extend the Initial Termination Date being called the "Non-
Continuing Banks"), then (A) the Termination Date shall be
extended by 364 days (provided, that if such date is not a
Business Day, then the Termination Date as so extended shall
be the next preceding Business Day), and (B) the Revolving
Credit Commitment of each Non-Continuing Bank shall
terminate (with the result that the total Revolving Credit
Commitments will decrease by the amount of such Revolving
Credit Commitment), and all Loans of each such Non-
Continuing Bank shall become due and payable, together with
all interest accrued thereon and all other amounts owed to
such Non-Continuing Bank hereunder, on the Initial
Termination Date. In the event that the Initial Termination
Date is extended pursuant to the immediately preceding
sentence, the Company may replace Non-Continuing Banks
pursuant to Section 2.13 hereof.
Notwithstanding the foregoing, no extension of the
Initial Termination Date shall be effective with respect to
any Bank unless, on and as of the Initial Termination Date,
the conditions set forth in Section 7.02 shall be satisfied
(with all references to a Loan being deemed to be references
to such extension) and the Administrative Agent shall have
received a certificate to that effect dated the Initial
Termination Date and executed by a financial officer of the
Company.
SECTION 4.02. Prepayments. (a) The Company may
from time to time, upon at least (i) two (2) Business Days'
prior notice (in the event such notice pertains to Domestic
Loans) or (ii) three (3) Business Days' prior notice (in the
event such notice pertains to Eurodollar Loans) (by
telephone (confirmed in writing promptly thereafter) or
telecopier) received by the Administrative Agent (prior to
12:00 noon, New York City
40
time, in the event such notice pertains to Domestic Loans)
(which shall advise each Bank thereof as soon as practicable
thereafter), prepay any Revolving Credit Borrowing in whole
or in part, without, except as provided in Section 3.04
hereof, premium or penalty (such prepayment to be pro rata
to the Banks according to the respective unpaid principal
amounts of the Revolving Credit Loans owing to them);
provided, however, that each such prepayment shall be in an
aggregate amount of $50,000,000 or an integral multiple of
$10,000,000 in excess of $50,000,000. Except as provided in
Section 2.07(e)(ii), Section 2.07(e)(iii), Section
2.11(c)(i), Section 2.12(i), Section 2.13(i), Section
4.03(a), Section 4.03(b)(ii) or Section 4.03(b)(iii) hereof,
the Company shall not have the right to prepay any
Competitive Borrowing.
(b) Each notice of prepayment shall specify the
Borrowing to be prepaid, the prepayment date and the
aggregate principal to be prepaid, and shall be irrevocable.
All prepayments under this Section 4.02 shall be accompanied
by accrued interest on the principal amount being prepaid to
the date of prepayment.
SECTION 4.03. Required Termination of the
Revolving Credit Commitments and Prepayment. (a) In the
event that at any time any Affected Bank shall have
reasonably determined in good faith (which determination
shall be conclusive and binding upon the parties hereto, in
the absence of manifest error) that the making or
continuation of its Revolving Credit Commitment to make
Eurodollar Loans or its Eurodollar Loans have become
unlawful under any applicable law, governmental rule,
requirement, regulation, guideline or order, then, and in
any such event, such Affected Bank shall as soon as
practicable give notice (by telephone (confirmed in writing
promptly thereafter) or telecopier) to the Company and to
the Administrative Agent (which shall transmit such notice
to each of the Banks as soon as practicable thereafter), of
such determination. Thereupon, the Revolving Credit
Commitment of such Affected Bank and the obligation of such
Affected Bank to make or maintain its Loan(s) shall be
terminated and the Company shall forthwith, and in any event
no later than the earlier of (x) the next succeeding
Interest Payment Date with respect to such Loan(s) or (y)
ten (10) days after receipt of notice from such Affected
Bank under this Section 4.03(a), prepay the outstanding
Loan(s) of such Affected Bank without premium or penalty,
together with all interest accrued thereon and all other
amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to Section 3.04 hereof in
connection with such prepayment).
(b) In lieu of prepaying the Loan(s) of the
Affected Bank as required by Section 4.03(a) hereof, the
Company may exercise any one or more of the following
options:
(i) If such determination by an Affected Bank
relates to Eurodollar Loans then being requested by the
Company pursuant to a notice of Borrowing as provided
in Sections 2.01, 2.02 or 2.05 hereof, the Company may,
not later than 9:00 a.m., New York City time, on the
day which is three (3) Business Days prior to the date
on which such Loans were to have been made by giving
notice (by telephone (confirmed in writing promptly
thereafter) or telecopier) to the Administrative Agent
(which shall transmit such notice to each of the Banks
otherwise required to participate in such Loans as soon
as practicable thereafter) irrevocably withdraw such
notice of Borrowing.
(ii) The Company may request one or more of the
non-Affected Banks to take over all (but not part) of
each Affected Bank's then outstanding Loan(s) and
41
to assume all (but not part) of each Affected Bank's
Revolving Credit Commitment and obligations hereunder.
If one or more Banks shall so agree in writing with
respect to an Affected Bank, (x) the Revolving Credit
Commitment of each Assenting Bank and the obligations
of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the
Revolving Credit Commitment and of the obligations of
such Affected Bank under this Agreement, and (y) each
Assenting Bank shall make Loans to the Company,
according to such Assenting Bank's respective Allocable
Share, in an aggregate principal amount equal to the
outstanding principal amount of the Loan(s) of such
Affected Bank, on a date mutually acceptable to the
Assenting Banks, such Affected Bank and the Company.
The proceeds of such Loans, together with funds of the
Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued
thereon, and all other amounts owing to such Affected
Bank hereunder (including any amounts payable pursuant
to Section 3.04 hereof in connection with such
prepayment), and, upon such assumption by the Assenting
Banks and prepayment by the Company, such Affected Bank
shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.11(b),
Section 10.02 and Section 10.07 hereof). Any such
prepayment shall occur prior to the time any prepayment
pursuant to Section 4.03(a) hereof is required to be
made.
(iii) Upon notice (by telephone (confirmed in
writing promptly thereafter) or telecopier) to the
Administrative Agent (which shall advise each Bank
thereof as soon as practicable thereafter), the Company
may terminate the obligations of the Banks to make or
maintain Loans as Eurodollar Loans and, in such event,
the Company shall, prior to the time any prepayment
pursuant to Section 4.03(a) hereof is required to be
made, refinance all of the Eurodollar Loans with
Domestic Loans, or prepay such Eurodollar Loans, in the
manner contemplated by and pursuant to Section 2.05 or
Section 4.02 hereof, respectively.
(iv) (A) The Company may designate one or more
Replacement Lenders mutually acceptable to the Company
and the Administrative Agent (whose consent shall not
be unreasonably withheld) to assume the Revolving
Credit Commitment and the obligations of each such
Affected Bank hereunder, and to purchase, prior to the
time any prepayment pursuant to Section 4.03(a) hereof
is required to be made, the outstanding Loans of such
Affected Bank and such Affected Bank's rights hereunder
and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank, for a
purchase price equal to the outstanding principal
amount of the Loan(s) of such Affected Bank plus all
interest accrued thereon and all other amounts owing to
such Affected Bank hereunder (including the amount
which would be payable to such Affected Bank pursuant
to Section 3.04 hereof if the purchase of its Loans
constituted a prepayment thereof contemplated by clause
(ii) of the first sentence of Section 3.04 hereof), and
upon such assumption and purchase by the Replacement
Lenders, each such Replacement Lender shall be deemed
to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes
of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 hereof).
(B) As an alternative, the Company may designate
one or more Replacement Lenders mutually acceptable to
the Company and the Administrative
42
Agent (whose consent shall not be unreasonably
withheld) which shall upon a date mutually agreed upon
by the Company and such Replacement Lenders assume the
Revolving Credit Commitment and the obligations of such
Affected Bank under this Agreement and shall upon such
date make Loans to the Company in an aggregate
principal amount equal to the outstanding principal
amount of the Loan(s) of such Affected Bank. The
proceeds of such Loans, together with funds of the
Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued
thereon and all other amounts owing to such Affected
Bank hereunder (including any amounts payable pursuant
to Section 3.04 hereof in connection with such
prepayment), and, upon such Replacement Lenders making
such Loans and such prepayment by the Company, such
Replacement Lenders shall be deemed to be "Banks" for
purposes of this Agreement and such Affected Bank shall
cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except
as provided in Section 2.11(b), Section 10.02 and
Section 10.07 hereof). Each such Replacement Lender
shall execute and deliver to the Administrative Agent
such documentation to evidence its status as a "Bank"
hereunder as shall be mutually acceptable to the
Company and the Administrative Agent. The
effectiveness of each Replacement Lender's Revolving
Credit Commitment, the making of such Loans by such
Replacement Lenders and the prepayment by the Company
of the Loan(s) of such Affected Bank shall be deemed to
have occurred simultaneously for all purposes hereof.
In the event the Company shall take any of the
actions contemplated by Section 4.03(b)(ii) or Section
4.03(b)(iv) hereof, Schedule I and Schedule II hereto shall
be deemed amended to reflect the addition of any Replacement
Lender and any increases or decreases in the Revolving
Credit Commitments of the Affected Banks and the Assenting
Banks, as the case may be.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of
the Company. The Company represents and warrants to the
Banks, the Agents and the Managing Agents as follows:
(a) Company's Organization; Corporate Power. The
Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the
State of Delaware; the Company is duly qualified or
licensed and in good standing as a foreign corporation
authorized to do business in each other jurisdiction
where, because of the nature of its activities or
properties, such qualification or licensing is
required, except for such jurisdictions where the
failure to be so qualified or licensed will not
materially adversely affect the financial condition,
business or operations of the Company and its
Consolidated Subsidiaries, taken as a whole, or prevent
the enforcement of contracts to which the Company is a
party; and the Company has all requisite corporate
power and authority (i) to own its assets and to carry
on the business in which it is engaged, (ii) to
execute, deliver and perform its obligations under this
Agreement, (iii) to borrow in the manner and for the
purpose contemplated by this Agreement, and (iv) to
execute, deliver and perform its obligations under all
other agreements and
43
instruments executed and delivered by the Company
pursuant to or in connection with this Agreement.
(b) Domestic Specified Subsidiaries;
Organization; Corporate Power. As of the Effective
Date, each domestic Specified Subsidiary is a
corporation or other entity (as the case may be) duly
incorporated or formed, validly existing and in good
standing under the laws of the state or jurisdiction of
its incorporation or formation; and, as of the
Effective Date, each domestic Specified Subsidiary has
all requisite corporate power and authority to own its
assets and to carry on the business in which it is
engaged.
(c) Company's Corporate Authority; No Conflict.
The execution and delivery by the Company of this
Agreement, the performance by the Company of its
obligations under this Agreement, the Borrowings by the
Company in the manner and for the purpose contemplated
by this Agreement, the execution and delivery by the
Company of all other agreements and instruments which
shall have been executed and delivered by the Company
pursuant hereto or in connection herewith, and the
performance by the Company of its obligations under all
other agreements and instruments which shall have been
executed and delivered by the Company pursuant hereto
or in connection herewith, have been duly authorized by
all necessary corporate action (including any necessary
stockholder action) on the part of the Company, and do
not and will not (i) violate any provision of any law,
rule or regulation (including, without limitation,
Regulation U and Regulation X) presently in effect
having applicability to the Company (or any Specified
Subsidiary), or of any order, writ, judgment, decree,
determination or award (which is, individually or in
the aggregate, material to the consolidated financial
condition, business or operations of the Company and
its Consolidated Subsidiaries) presently in effect
having applicability to the Company (or any Specified
Subsidiary) or of the charter or by-laws of the Company
(or any Specified Subsidiary), or (ii) subject to the
Company's compliance with any applicable covenants
pertaining to its incurrence of unsecured indebtedness,
result in a breach of or constitute a default under any
indenture or loan or credit agreement, or result in a
breach of or constitute a default under any other
agreement or instrument (which is, individually or in
the aggregate, material to the consolidated financial
condition, business or operations of the Company and
its Consolidated Subsidiaries), to which the Company or
any Specified Subsidiary is a party or by which the
Company or any Specified Subsidiary or its respective
properties may be bound or affected, or (iii) result
in, or require, the creation or imposition of any Lien
of any nature upon or with respect to any of the
properties now owned or hereafter acquired by the
Company (other than any right of setoff or banker's
lien or attachment that any Bank or other holder of a
Loan may have under applicable law), and the Company is
not in default under or in violation of its charter or
by-laws.
(d) Valid and Binding Obligations of the Company.
This Agreement constitutes, and each other agreement or
instrument executed and delivered by the Company
pursuant hereto or in connection herewith will each
constitute, the legal, valid and binding obligation of
the Company, enforceable against the Company in
accordance with its respective terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights
generally and by general principles of equity,
including, without limitation, concepts of materiality,
reasonableness,
44
good faith and fair dealing and the possible
unavailability of specific performance or injunctive
relief (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(e) Company's Financial Condition. The Company's
audited consolidated financial statements as at
December 31, 1996, copies of which have been furnished
to each Bank, have been prepared in conformity with
generally accepted accounting principles applied on a
basis consistent with that of the preceding fiscal year
and fairly present the consolidated financial condition
of the Company and its Consolidated Subsidiaries as at
such date and the results of their operations for the
period then ended; since December 31, 1996 to and
including the Effective Date, there has been no
material adverse change in their consolidated financial
condition, business or operations, except as set forth
in the Company's annual report on Form 10-K for the
year ended December 31, 1996, and its quarterly reports
on Form 10-Q for the quarters ended March 31, 1997,
June 30, 1997, and September 30, 1997, in each case to
the Securities and Exchange Commission, (copies of each
of which have been furnished to each Bank) or as
disclosed in writing to the Banks prior to the
Effective Date; and, since the Effective Date, there
has been no material adverse change in their
consolidated financial condition from the most recent
consolidated financial statements of the Company and
its Consolidated Subsidiaries which have been furnished
to the Banks pursuant to this Agreement, except as
disclosed in writing to the Banks.
(f) Litigation with Respect to the Company or Its
Subsidiaries. As of the Effective Date, no litigation
(including, without limitation, derivative actions),
arbitration proceedings or governmental proceedings are
pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary of the Company
which are likely (to the extent not covered by
insurance) materially and adversely to affect the
consolidated financial condition of the Company and its
Consolidated Subsidiaries or materially to impair the
Company's ability to perform its obligations under this
Agreement, except as set forth in the Company's annual
report on Form 10-K for the year ended December 31,
1996, or its quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997, and
September 30, 1997, to the Securities and Exchange
Commission, or as disclosed in writing to the Banks
prior to the Effective Date.
(g) Regulatory Approvals with Respect to This
Agreement. No authorization, consent, approval,
license or formal exemption from, nor any filing,
declaration or registration with, any court,
governmental agency or regulatory authority (Federal,
state, local or foreign), including, without
limitation, the Securities and Exchange Commission, or
with any securities exchange, is or will be required in
connection with the execution and delivery by the
Company of this Agreement, the performance by the
Company of its obligations under this Agreement, or the
Borrowings by the Company in the manner and for the
purpose contemplated by this Agreement (except for such
authorizations, consents, approvals, licenses,
exemptions, filings, declarations or registrations, if
any, which may be required to be obtained or made
subsequent to the Effective Date, all of which, if then
required, will have been duly obtained or made on or
before each date on which the foregoing representation
and warranty shall be made, deemed made or reaffirmed,
as the case may be, will be sufficient for all purposes
thereof and will be in full force and effect on each
such date).
45
(h) ERISA. As of the Effective Date, no material
liability to the PBGC has been, or is expected by the
Company or any Related Person to the Company to be,
incurred by the Company or any Related Person to the
Company. No Reportable Event which presents a material
risk of termination of any Plan maintained by the
Company or a Related Person to the Company has occurred
and is continuing at the Effective Date. No Plan
maintained by the Company or a Related Person to the
Company had an Accumulated Funding Deficiency, whether
or not waived, as of the last day of the most recent
fiscal year of such Plan ending prior to the Effective
Date. Neither the Company nor any Related Person to
the Company has engaged in a Prohibited Transaction
prior to the Effective Date.
(i) Investment Company Act. The Company is not
an "investment company" or a company "controlled" by an
"investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(j) Public Utility Holding Company Act. The
Company is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a
"holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(k) Regulation U; Regulation G; Regulation X.
The Company is not engaged principally, or as one of
its important activities, in the business of extending,
or arranging for the extension of, credit for the
purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or Regulation G, and
no part of the proceeds of any Loan will be used for
any purpose which would be in violation of such
regulations or in violation of Regulation X.
(l) Company's Tax Returns and Tax Liability. The
Company and its Subsidiaries, except for any Subsidiary
(x) incorporated under the laws of any jurisdiction
other than the United States of America or any State
thereof or the District of Columbia or (y) having
substantially all of its properties and assets or
conducting substantially all of its business outside
the United States of America and having assets
immaterial in comparison to the assets of the Company
and its Consolidated Subsidiaries, have filed all tax
returns required to be filed by them and have paid or
provided adequate reserves or obtained adequate
indemnity for the payment of all taxes and assessments
payable by them which have become due, other than (i)
those not yet delinquent, (ii) those the nonpayment of
which would not be reasonably likely to result in a
material adverse effect on the consolidated financial
condition of the Company and its Consolidated
Subsidiaries, (iii) those being contested in good faith
and (iv) those involving foreign taxes and assessments
which are involved in a good faith dispute.
(m) Environmental and Public and Employee Health
and Safety Matters. As of the Effective Date, the
Company and each Subsidiary has complied with all
applicable Federal, state, and other laws, rules and
regulations relating to environmental pollution or to
environmental regulation or control or to public or
employee health or safety, except (i) to the extent
that the failure to so comply would not be reasonably
likely to result in a material and adverse effect on
the consolidated financial condition of the Company and
its Consolidated
46
Subsidiaries or (ii) as set forth in the Company's
annual report on Form 10-K for the year ended December
31, 1996, or its quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997, and
September 30, 1997, to the Securities and Exchange
Commission, or as disclosed in writing to the Banks
prior to the Effective Date. As of the Effective Date,
the Company's and the Subsidiaries' facilities do not
manage any hazardous wastes, hazardous substances,
hazardous materials, toxic substances or toxic
pollutants regulated under the Resource Conservation
and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, the Hazardous
Materials Transportation Act, the Toxic Substance
Control Act, the Clean Air Act, the Clean Water Act or
any other applicable law relating to environmental
pollution or public or employee health and safety, in
violation of any such law, or any rules or regulations
promulgated pursuant thereto, except (A) for violations
that would not be reasonably likely to result in a
material and adverse effect on the consolidated
financial condition of the Company and its Consolidated
Subsidiaries or (B) as set forth in the Company's
annual report on Form 10-K for the year ended December
31, 1996, or its quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997, and
September 30, 1997, to the Securities and Exchange
Commission, or as disclosed in writing to the Banks
prior to the Effective Date. As of the Effective Date,
the Company is aware of no events, conditions or
circumstances involving environmental pollution or
contamination or public or employee health or safety,
in each case applicable to it or its Subsidiaries, that
would be reasonably likely to result in a material and
adverse effect on the consolidated financial condition
of the Company and its Consolidated Subsidiaries except
as set forth in the Company's annual report on Form 10-
K for the year ended December 31, 1996, or its
quarterly reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997,
to the Securities and Exchange Commission, or as
disclosed in writing to the Banks prior to the
Effective Date.
(n) True and Complete Disclosure. To the best of
the Company's knowledge and belief, all factual
information heretofore or contemporaneously furnished
by or on behalf of the Company or any Subsidiary of the
Company to any Bank, any Agent or any Managing Agent
for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all other
such factual information hereafter furnished by or on
behalf of the Company or any Subsidiary of the Company
to any Bank, any Agent or any Managing Agent will be,
true and accurate (taken as a whole) on the date as of
which such information is dated or certified and not
incomplete by omitting to state any material fact
necessary to make such information (taken as a whole)
not misleading at such time.
ARTICLE VI
COVENANTS
SECTION 6.01. Affirmative Covenants of the
Company. So long as any Loan shall remain unpaid or any
Bank shall have any Revolving Credit Commitment
47
hereunder, the Company will, unless the Required Banks shall
have otherwise consented in writing:
(a) Reports, Certificates and Other Information.
Furnish to each Bank:
(i) Interim Reports. Within 60 days after
the end of each of the first three quarterly
fiscal periods in each fiscal year of the Company,
a consolidated balance sheet of the Company as at
the end of such period (setting forth in
comparative form the consolidated figures as of
the end of the previous fiscal year), the related
consolidated statement of operations for such
period and (in the case of the second and third
quarterly periods) for the period from the
beginning of the current fiscal year to the end of
such quarterly period (setting forth in each case
in comparative form the consolidated figures for
the corresponding periods of the previous fiscal
year) and the related consolidated statement of
cash flows for the period from the beginning of
the current fiscal year to the end of such
quarterly period (setting forth in comparative
form the consolidated figures from the
corresponding period of the previous fiscal year),
all in reasonable detail and certified, subject to
changes resulting from year-end audit adjustments,
by a financial officer of the Company (it being
understood that the delivery of (A) the Company's
Form 10-Q setting forth such statements for each
such period and (B) a certification by a financial
officer of the Company to the effect that such
statements fairly present in all material respects
the financial condition and results of operations
of the Company on a consolidated basis (subject to
changes resulting from year-end audit adjustments)
shall satisfy the requirements of this Section
6.01(a)(i)).
(ii) Annual Reports. Within 120 days after
the end of each fiscal year of the Company, a
consolidated balance sheet of the Company as at
the end of such year, and the related consolidated
statements of operations and cash flows for such
year, setting forth in each case in comparative
form the consolidated figures for the previous
fiscal year, accompanied by the opinion thereon of
independent public accountants of recognized
national standing selected by the Company, which
opinion shall be prepared in accordance with
generally accepted auditing standards relating to
reporting and shall be based upon an audit by such
accountants of the relevant accounts (it being
understood that the delivery of the Company's Form
10-K setting forth such statements for such year
shall satisfy the requirements of this Section
6.01(a)(ii)).
(iii) Officers' Certificates. Together with
each delivery of financial statements pursuant to
Sections 6.01(a)(i) and 6.01(a)(ii) hereof, an
Officers' Certificate (A) stating that the signers
have reviewed the relevant terms of this Agreement
and have made, or caused to be made under their
supervision, a review of the transactions and
condition of the corporation or corporations
covered by such financial statements during the
accounting period in question, and that such
review has not disclosed the existence during such
accounting period, and that the signers do not
otherwise have knowledge of the existence as at
the date of such Officers' Certificate, of any
Event of Default or Unmatured Event of Default,
or, if any such Event of Default or Unmatured
Event of Default existed or
48
exists, specifying the nature and period of
existence thereof and what action the Company has
taken or is taking or proposes to take with
respect thereto and (B) demonstrating in
reasonable detail compliance during such
accounting period with Sections 6.01(h), 6.02(b)
and 6.02(c) hereof.
(iv) Accountants' Certificates. Together
with each delivery of financial statements
pursuant to Section 6.01(a)(ii) hereof, a
certificate signed by the independent public
accountants reporting thereon (A) briefly setting
forth the scope of their examination (which shall
include a review of this Section 6.01(a) and of
Sections 6.01(b), 6.01(e), 6.01(h) and 6.02 (other
than Section 6.02(e)) hereof), (B) stating whether
or not their examination has disclosed the
existence, during the fiscal year covered by such
financial statements, of any Event of Default or
Unmatured Event of Default and, if their
examination has disclosed such an Event of Default
or Unmatured Event of Default, specifying the
nature and period of existence thereof, and (C)
stating that they have examined the Officers'
Certificate delivered therewith pursuant to
Section 6.01(a)(iii) hereof.
(v) Reports to SEC and to Stockholders.
Promptly upon their becoming publicly available,
copies of all financial statements, reports,
notices and proxy statements sent by the Company
to its stockholders, and of all regular and
periodic reports filed by the Company or any of
its Specified Subsidiaries with the Securities and
Exchange Commission or any governmental authority
succeeding to any of its functions, which in each
case have not been delivered under paragraph
(a)(i) or (a)(ii) of this Section 6.01.
(vi) Officers' Certificates as to Status of
Excepted Subsidiaries. (A) Promptly after the
designation of a Subsidiary of the Company as an
Excepted Subsidiary or the withdrawal of such
designation, an Officers' Certificate setting
forth the name of the Subsidiary and whether it is
being designated as, or withdrawn from designation
as, an Excepted Subsidiary, and (B) as soon as
practicable after the designation of a Subsidiary
of the Company as an Excepted Subsidiary or the
withdrawal of such designation, or, at the option
of the Company, together with the next delivery of
any financial statements to the Banks pursuant to
Section 6.01(a)(i) or Section 6.01(a)(ii) hereof,
an Officers' Certificate setting forth in
reasonable detail, and certifying the correctness
of, all facts and computations required in order
to establish that such designation or withdrawal
of designation is permitted in accordance with
this Agreement, and listing all Subsidiaries of
the Company that are designated as Excepted
Subsidiaries at such time.
(vii) Officers' Certificates as to Status of
Principal Subsidiaries. As soon as practicable
after the determination that a Person which shall
have become a Subsidiary of the Company after
September 30, 1997, is a Principal Subsidiary or,
at the option of the Company, together with the
next delivery of any financial statements to the
Banks pursuant to Section 6.01(a)(i) or Section
6.01(a)(ii) hereof, an Officers' Certificate
confirming the same.
49
(viii) Notice of Default. Forthwith upon
any principal officer of the Company obtaining
knowledge of the occurrence of an Event of Default
or an Unmatured Event of Default, an Officers'
Certificate specifying the nature and period of
existence thereof and what action the Company has
taken or is taking or proposes to take with
respect thereto.
(ix) Other Information. With reasonable
promptness, such other information and data with
respect to the Company or any of its Specified
Subsidiaries as from time to time may be
reasonably requested by any Bank.
(b) Taxes. Pay or provide adequate reserves or
obtain adequate indemnity for the payment of, and cause
each Subsidiary to pay or provide adequate reserves or
obtain adequate indemnity for the payment of, all taxes
and assessments payable by it which become due, other
than (i) those not yet delinquent, (ii) those the
nonpayment of which would not be reasonably likely to
result in a material adverse effect on the consolidated
financial condition of the Company and its Consolidated
Subsidiaries, (iii) those being contested in good faith
and (iv) those involving foreign taxes and assessments
which are involved in a good faith dispute with respect
to tax or other matters.
(c) Preservation of Corporate Existence, etc.
Subject to Section 6.02(a) hereof, do or cause to be
done all things necessary to preserve and keep in full
force and effect the corporate existence and the rights
(charter and statutory) of the Company and each
Specified Subsidiary; provided, however, that the
Company shall not be required to preserve any such
right or franchise if the Company shall determine that
the preservation thereof is no longer desirable in the
conduct of the business of the Company or any Specified
Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Banks
under this Agreement.
(d) Inspections; Discussions. Permit any
authorized representatives designated by a Bank, at
such Bank's expense, to make reasonable inspections of
any of the properties of the Company or any of its
Specified Subsidiaries, including its and their books
of account, and to discuss its and their affairs,
finances and accounts with its and their officers, all
at such reasonable times and as often as may be
reasonably requested by such Bank; provided that if
required by the Company, any such Bank shall, as a
condition to being permitted to make any such
inspection, certify to the Company that the same is
being made solely in order to assist such Bank in
evaluating its extension of credit to the Company under
this Agreement.
(e) Books and Records. Maintain, and cause each
of its Consolidated Subsidiaries to maintain, a system
of accounting established and administered in
accordance with generally accepted accounting
principles applied on a consistent basis, and set
aside, and cause each of its Consolidated Subsidiaries
to set aside, on its books all such proper reserves as
shall be required by generally accepted accounting
principles.
(f) Maintenance of Properties. Cause all
properties used or useful in the conduct of its
business or the business of a Specified Subsidiary to
be maintained and kept in good condition, repair and
working order and supplied with all
50
necessary equipment, and cause to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the
Company may be necessary so that the business carried
on in connection therewith may be properly and
advantageously conducted at all times; provided,
however, that nothing in this Section 6.01(f) shall
prevent the Company from discontinuing the operation or
maintenance, or both the operation and maintenance, of
any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct
of its business or the business of any Specified
Subsidiary and not disadvantageous in any material
respect to the Banks under this Agreement.
(g) Maintenance of Insurance. Insure and keep
insured, and cause each Specified Subsidiary to insure
and keep insured, with reputable insurance companies,
so much of its respective properties, to such an extent
and against such risk (including fire), as companies
engaged in similar businesses and of similar size
customarily insure properties of a similar character;
or, in lieu thereof, in the case of itself or of any
one or more of its Specified Subsidiaries, maintain or
cause to be maintained a system or systems of self-
insurance which will accord with the approved practices
of companies owning or operating properties of a
similar character in maintaining such systems.
(h) Consolidated Adjusted Tangible Net Worth.
Maintain Consolidated Adjusted Tangible Net Worth at
least equal to $2,600,000,000 at all times.
(i) Compliance with Laws, etc. Not violate any
laws, rules, regulations, or governmental orders to
which it is subject (including any such laws, rules,
regulations or governmental orders relating to the
protection of the environment or to public or employee
health or safety), which violation would be reasonably
likely to result in a material adverse effect on the
consolidated financial condition of the Company and its
Consolidated Subsidiaries; and not permit any
Subsidiary of the Company to violate any laws, rules,
regulations, or governmental orders of Federal, state
or local governmental entities within the United States
to which it is subject (including any such laws, rules,
regulations or governmental orders relating to the
protection of the environment or to public or employee
health or safety), which violation would be reasonably
likely to result in a material adverse effect on the
consolidated financial condition of the Company and its
Consolidated Subsidiaries.
(j) Delivery of Certain Documentation with
Respect to Plans. (i) As soon as possible and in any
event within 30 days after it knows or has reason to
know that, regarding any Plan with respect to the
Company or a Related Person to the Company, a
Prohibited Transaction or a Reportable Event which
presents a material risk of termination of any Plan
maintained by the Company or a Related Person to the
Company has occurred (whether or not the requirement
for notice of such Reportable Event has been waived by
the PBGC), deliver to the Syndication Agent and each
Bank a certificate of a responsible officer of the
Company setting forth the details of such Prohibited
Transaction or Reportable Event, (ii) upon request of
the Syndication Agent or any Bank made from time to
time after the occurrence of any such Prohibited
Transaction or Reportable Event, deliver to the
Syndication Agent and each Bank a copy of the most
recent actuarial report and annual report completed
with respect to any Plan maintained by the Company or a
Related Person to the Company, and (iii) as soon as
possible, and in any event
51
within 10 days, after it knows or has reason to know
that any of the following have occurred with respect to
any Plan maintained by the Company or a Related Person
to the Company: (A) any such Plan has been terminated,
(B) the Plan Sponsor intends to terminate any such
Plan, (C) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate
any such Plan, or (D) the Company or any Related Person
to the Company withdraws from any such Plan, deliver to
the Syndication Agent and each Bank a written notice
thereof. For purposes of this Section 6.01(j), the
Company shall be deemed to have knowledge of all facts
known by the Plan Administrator of any Plan or Employee
Benefit Plan of which the Company or any Related Person
to the Company is the Plan Sponsor.
(k) Contributions to Plans. Pay, and use its
best efforts to cause each Related Person with respect
to the Company to pay, when due, all contributions
required to meet the minimum funding standards set
forth in Sections 302 through 308 of ERISA with respect
to each Plan maintained by the Company or a Related
Person to the Company.
(l) Use of Proceeds. Use the proceeds of the
Loans to finance the Elk Hills Acquisition and to pay
related costs and expenses, for general corporate
purposes, including the support of commercial paper
issuances, and not for any purpose which is in
violation of Regulation G, Regulation U, or Regulation
X.
SECTION 6.02. Negative Covenants of the Company.
So long as any Loan shall remain unpaid or any Bank shall
have any Revolving Credit Commitment hereunder, the Company
will not, without the prior written consent of the Required
Banks:
(a) Mergers, Consolidations, Sales. Consolidate
with or merge into any other corporation or convey or
transfer its properties substantially as an entirety to
any Person, unless:
(i) the corporation formed by such
consolidation or into which the Company is merged
or the Person which acquires by conveyance or
transfer the properties and assets of the Company
substantially as an entirety, shall be a
corporation organized and existing under the laws
of the United States or any state or the District
of Columbia, and shall expressly assume the due
and punctual payment of the principal of and
interest on all the Loans and the performance of
every covenant of this Agreement on the part of
the Company to be performed or observed; and
(ii) immediately after giving effect to such
transaction, no Event of Default or Unmatured
Event of Default shall have occurred and be
continuing.
Upon any consolidation or merger by the Company with or
into any other corporation, or any conveyance or
transfer by the Company of its properties and assets
substantially as an entirety to any Person which is
permitted by this Section 6.02(a), the successor
corporation formed by such consolidation or into which
the Company is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the
Company under this Agreement with the same effect as if
such successor
52
corporation had been named as the Company herein; and,
in the event of such conveyance or transfer, the
Company (which term shall for this purpose mean the
Person named as the "Company" in the introduction to
this Agreement or any successor corporation which shall
theretofore become such in the manner described in this
Section 6.02(a)) shall be discharged from all
obligations and covenants under this Agreement and may
be dissolved and liquidated.
(b) Restriction on Secured Debt. Incur, create,
assume, guarantee or otherwise become liable with
respect to, or permit any Specified Subsidiary to
incur, create, assume, guarantee or otherwise become
liable with respect to, any Secured Debt, which would
cause Consolidated Secured Debt to exceed 15% of the
sum of (x) the principal amount of the additional
Funded Debt permitted at the time of calculation under
Section 6.02(c) hereof and (y) Consolidated Debt at the
time of calculation.
(c) Restriction on Funded Debt. Create, incur,
assume, guarantee or in any other way become liable
for, or permit any Specified Subsidiary to create,
incur, assume, guarantee or in any other way become
liable for, any Indebtedness included in Consolidated
Debt (other than in connection with any renewal,
extension or refunding of such Indebtedness which does
not increase the net amount of the Consolidated Debt
outstanding), unless immediately thereafter, and after
giving effect thereto, the ratio of Consolidated Debt
to Consolidated Adjusted Tangible Net Worth would not
exceed 2.6 to 1.0.
(d) Restriction on Dividends from Principal
Subsidiaries. Enter into any agreement, or permit any
Principal Subsidiary to enter into any agreement,
containing any provision which would limit or restrict
the declaration or payment of dividends by such
Principal Subsidiary (i) if such agreement is an
agreement for borrowed money, to an amount which is
less than 75% of such Principal Subsidiary's cumulative
net income, as determined in accordance with generally
accepted accounting principles and computed on a
consolidated basis for such Principal Subsidiary and
its Subsidiaries, from the first day of the fiscal year
of such Principal Subsidiary in which such agreement is
executed, and (ii) if such agreement is not for
borrowed money, to an amount which would materially
adversely affect the Company's ability to perform its
obligations under this Agreement.
(e) Change in Control. Permit any Person or
group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on the
date hereof) beneficially to own more than 50% (by
number of votes) of the Voting Securities of the
Company unless such Voting Securities shall have been
acquired in a transaction or series of transactions
approved prior to such acquisition by the Board of
Directors of the Company, and the directors so
approving shall include directors who constitute a
majority of the Board of Directors and who are persons
either (i) who are directors on the date hereof or (ii)
who were nominated or elected by a majority of the
directors who (A) are directors on the date hereof or
(B) shall have been nominated or elected as described
in this clause (ii).
53
ARTICLE VII
CONDITIONS OF CREDIT
The obligations of the Banks to make Loans
hereunder are subject to (a) the Revolving Credit
Commitments having become effective as provided in Section
7.01 below and (b) the satisfaction of the conditions set
forth in Section 7.02 below.
SECTION 7.01. Conditions to Effectiveness of
Commitments. The Revolving Credit Commitments shall become
effective at such time as the following conditions shall
have been satisfied:
(a) State Certificates as to the Company:
(i) The Syndication Agent shall have
received (with a photocopy for each Bank) a copy
of the Restated Certificate of Incorporation of
the Company and each amendment, if any, thereto
(but not the certificates of designation of
preferences of preferred stock), certified by the
Secretary of State of the State of Delaware (as of
a date shortly before the Effective Date) as being
true and correct copies of such documents on file
in the office of such Secretary of State.
(ii) The Syndication Agent shall have
received (with a photocopy for each Bank) the
signed Certificate or Certificates of the
Secretary of State of the State of Delaware, in
regular form (as of a date shortly before the
Effective Date), listing the Restated Certificate
of Incorporation of the Company and each
amendment, if any, thereto, together with the
certificates of designation of preferences of
preferred stock and the certificates of merger or
ownership, on file in the office of such Secretary
of State and stating that such documents are the
only charter documents of the Company on file in
such office filed on the date the Restated
Certificate of Incorporation was filed or
thereafter and that the Company is duly
incorporated and in good standing in the State of
Delaware and as to the franchise tax status of the
Company.
(b) The Syndication Agent and the Administrative
Agent shall have received (with a photocopy for each
Bank) the signed certificate of the President or a Vice
President and the Secretary or an Assistant Secretary
of the Company, dated the Effective Date and in the
form of Exhibit E hereto (appropriately completed),
certifying, among other things, (i) a true and correct
copy of resolutions adopted by the Board of Directors
or Executive Committee of the Board of Directors of the
Company authorizing the execution, delivery and
performance by the Company of this Agreement, (ii) a
true and correct copy of the By-laws of the Company as
in effect on the Effective Date, and (iii) the
incumbency and specimen signatures of officers of the
Company executing (x) the documents specified in clause
(i) above, and (y) any other documents delivered to the
Syndication Agent or the Administrative Agent on the
Effective Date.
(c) The Syndication Agent and the Administrative
Agent shall have received (with a photocopy for each
Bank) the signed opinion of Xxxxxx X. Xxxxxx, Esq.,
Associate General Counsel of the Company and counsel to
the
54
Company, dated the Effective Date and given upon the
express instructions of the Company, in the form of
Exhibit G hereto, with such changes (if any) therein as
shall be acceptable to the Syndication Agent and
special counsel to the Agents, and as to such other
matters as the Syndication Agent may reasonably
request.
(d) The Syndication Agent and the Administrative
Agent shall have received (with a photocopy for each
Bank) the signed opinion of Cravath, Swaine & Xxxxx,
special counsel to the Agents, dated the Effective
Date, in the form of Exhibit H hereto, with such
changes (if any) therein as shall be acceptable to the
Syndication Agent.
(e) The Syndication Agent and the Administrative
Agent shall have received (with a photocopy for each
Bank) such other instruments and documents as the
Syndication Agent and the Administrative Agent may have
reasonably requested.
(f) Each of the Agents, the Managing Agents and
the Company shall have executed one or more
counterparts of this Agreement.
SECTION 7.02. Conditions Precedent to All
Loans. The obligation of each Bank to make each Loan
shall be subject to the fulfillment at or prior to the
time of the making of such Loan of each of the
following further conditions:
(a) The representations and warranties on the
part of the Company contained in this Agreement shall
be true and correct in all material respects at and as
of the Borrowing Date for each Loan (other than any
Refinancing Loan), as though made on and as of such
date (except to the extent that such representations
and warranties expressly relate solely to an earlier
date).
(b) Both before and after giving effect to such
Loan (other than any Refinancing Loan), the Company
shall be in compliance with the requirements of any
applicable covenants pertaining to its incurrence of
unsecured indebtedness.
(c) No Event of Default and no Unmatured Event of
Default (other than any Unmatured Event of Default
which occurs as a result of a Bank Funding Default)
shall have occurred and be continuing on the Borrowing
Date for such Loan (other than any Refinancing Loan),
or would result from the making of such Loan.
(d) Either (i) the Elk Hills Acquisition shall
have been (or shall simultaneously be) completed or
(ii) the Company shall have (A) advised the Syndication
Agent and the Administrative Agent that the Elk Hills
Acquisition will be completed on a date not later than
the fifth Business Day following the date on which such
Loan is to be, or is available to be, made, (B)
furnished to the Syndication Agent and the
Administrative Agent a letter from the United States
Department of Energy confirming that the Department of
Energy is prepared, subject to the satisfaction of
applicable closing conditions, to complete the Elk
Hills Acquisition on such date and (C) implemented
arrangements satisfactory to the Syndication Agent and
the Administrative Agent for the deposit of all
proceeds of Loans made hereunder and all proceeds of
commercial paper issued by the Company to provide funds
for the Elk Hills Acquisition in an account with
55
the Administrative Agent pursuant to an escrow
agreement permitting the withdrawal of such funds at
the direction of the Administrative Agent to (w) pay
amounts to the Department of Energy for the completion
of the Elk Hills Acquisition (and, if the Elk Hills
Acquisition shall have been completed, the escrow
agreement shall terminate and any funds remaining in
the escrow account upon such termination shall be paid
to the Company), (x) repay such Loans, (y) repay Loans,
if any, made to repay commercial paper issued by the
Company as contemplated by this Section 7.02 which have
not been repaid by the Company at the maturity date of
such commercial paper or (z) if no amounts are or will
become due under (x) and (y) above, to the Company,
whereupon the escrow agreement shall terminate.
Each Borrowing by the Company shall be deemed to be a
representation and warranty by the Company on the date of
such Borrowing that each of the conditions contained in this
Section 7.02 has been satisfied.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. If any of the
following events, acts or occurrences (herein called an
"Event of Default") shall occur and be continuing:
(a) default, and continuance thereof for three (3)
Business Days or, in the case of any default which
results from a Bank Funding Default, five (5) Business
Days after the Company shall have been advised by the
Administrative Agent of such Bank Funding Default, in
the payment when due of any amount owing by the Company
hereunder in respect of the principal of, or interest
on, any Loan or in respect of the Facility Fee; or
(b) any representation or warranty on the part of
the Company contained in this Agreement or in any
certificate, letter or other writing or instrument
furnished or delivered to any Bank or the Syndication
Agent or the Administrative Agent pursuant hereto or in
connection herewith, shall at any time prove to have
been incorrect in any material respect when made,
deemed made or reaffirmed, as the case may be; or
(c) the Company shall default in the performance
or observance of any term, covenant, condition or
agreement on its part to be performed or observed under
Section 6.01(h), 6.02(b), 6.02(c) or 6.02(d) hereof
(other than a default which would not have occurred or
would not be continuing if the calculations pursuant to
the aforesaid Sections were made without giving effect
to changes in generally accepted accounting principles
which require implementation after the Effective Date);
or
(d) the Company shall default in any material
respect in the performance or observance of any other
term, covenant, condition or agreement on its part to
be performed or observed hereunder (and not
constituting an Event of Default under any other clause
of this Section 8.01), and such default shall continue
unremedied for thirty (30) days after written notice
thereof shall have been given to the Company by the
Facility Agent or any Bank; or
56
(e) either (i) the Company or any Specified
Subsidiary shall generally fail to pay, or admit in
writing its inability to pay, its debts as they become
due, or shall voluntarily commence any case or
proceeding or file any petition under any bankruptcy,
insolvency or similar law or seeking dissolution,
liquidation or reorganization or the appointment of a
receiver, trustee, custodian or liquidator for itself
or a substantial portion of its property, assets or
business or to effect a plan or other arrangement with
its creditors (except the voluntary dissolution, not
under any bankruptcy or insolvency law, of a Specified
Subsidiary), or shall file any answer admitting the
jurisdiction of the court and the material allegations
of any involuntary petition filed against it in any
bankruptcy, insolvency or similar case or proceeding,
or shall be adjudicated bankrupt, or shall make a
general assignment for the benefit of creditors, or
shall consent to, or acquiesce in the appointment of, a
receiver, trustee, custodian or liquidator for itself
or a substantial portion of its property, assets or
business, or (ii) corporate action shall be taken by
the Company or any Specified Subsidiary for the purpose
of effectuating any of the foregoing; or
(f) involuntary proceedings or an involuntary
petition shall be commenced or filed against the
Company or any Specified Subsidiary under any
bankruptcy, insolvency or similar law or seeking the
dissolution, liquidation or reorganization of the
Company or such Specified Subsidiary (as the case may
be) or the appointment of a receiver, trustee,
custodian or liquidator for the Company or such
Specified Subsidiary (as the case may be) or of a
substantial part of the property, assets or business of
the Company or such Specified Subsidiary (as the case
may be), or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied
against a substantial part of the property, assets or
business of the Company or any Specified Subsidiary,
and such proceedings or petition shall not be
dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be
released, vacated or fully bonded, within sixty (60)
days after commencement, filing or levy, as the case
may be; or
(g) (i) the Company or any Specified Subsidiary
shall default (as principal or guarantor or other
surety) in the payment when due (subject to any
applicable notice or grace period), whether at stated
maturity or otherwise, of any principal of or interest
on (howsoever designated) any indebtedness for borrowed
money, whether such indebtedness now exists or shall
hereafter be created, or (ii) an event of default (with
respect to the Company or any Specified Subsidiary) as
defined in any mortgage, indenture or instrument under
which there may be issued, or by which there may be
secured or evidenced, any indebtedness for borrowed
money of, or guaranteed by, the Company or any
Specified Subsidiary, whether such indebtedness now
exists or shall hereafter be created, shall occur and
shall permit such indebtedness to become due and
payable prior to its stated maturity or due date;
provided that no default under this subsection (g)
shall be deemed to exist as a result of a default or
event of default (as described in clause (i) or clause
(ii) above) in respect of any such indebtedness (1)
which is payable solely out of the property or assets
of a partnership, joint venture or similar entity of
which the Company or any Specified Subsidiary is a
participant, or is secured by a mortgage on, or other
security interest in, the property or assets owned or
held by such entity, in either case without any further
recourse to or liability of the Company or any
Specified Subsidiary as a participant in such entity,
or (2) if the principal of and interest on such
indebtedness, when added to the principal of and
interest on
57
all other such indebtedness then in default (exclusive
of indebtedness under clause (1) above), does not
exceed $50,000,000; or
(h) with respect to any Plan (other than a
Multiemployer Plan) as to which the Company or any
Related Person to the Company may have any liability,
there shall exist an unfunded current liability under
the Code which is material to the consolidated
financial condition of the Company and its Consolidated
Subsidiaries, and (x) steps are undertaken to terminate
such Plan or (y) such Plan is terminated or (z) any
Reportable Event which presents a material risk of
termination with respect to such Plan shall occur;
then, and in any such event (x) if such event relates to the
Company and is described in clause (e) or clause (f) of this
Section 8.01, (i) the Revolving Credit Commitments shall
immediately terminate, and (ii) all sums then owing by the
Company hereunder (and, in the event payment is to be made
on a day which is not the expiration date of the relevant
Interest Period, together with such amounts as will
compensate each Bank in such Bank's sole discretion for any
losses incurred by it (or its lending branch or affiliate)
in respect of funds borrowed by it or deposited with it for
the purpose of making or maintaining its Loans hereunder)
shall become and be immediately due and payable, without
presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Company, and (y) in
the case of any other such event, the Facility Agent shall,
at the direction of the Required Banks, at the same or
different times, take one or more of the following actions:
(i) declare the Revolving Credit Commitments to be
terminated, whereupon the Revolving Credit Commitments shall
forthwith terminate, or (ii) declare all sums then owing by
the Company hereunder to be forthwith due and payable,
whereupon all such sums (and, in the event payment is to be
made on a day which is not the expiration date of the
relevant Interest Period, together with such amounts as will
compensate each Bank in such Bank's sole discretion for any
losses incurred by it (or its lending branch or affiliate)
in respect of funds borrowed by it or deposited with it for
the purpose of making or maintaining its Loans hereunder)
shall become and be immediately due and payable without
presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Company. Promptly
following the making of any such declaration, the Facility
Agent shall give notice thereof to the Company and each
Bank, but failure to do so or any delay in so doing shall
not impair the effect of such declaration.
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS AND THE BANKS
SECTION 9.01. Appointment and Powers of the
Administrative Agent and the Facility Agent. Each Bank
hereby irrevocably designates and appoints each of the
Administrative Agent and the Facility Agent its agent
hereunder and hereby authorizes each such Agent to take such
action on its behalf and to exercise such rights, remedies,
powers and privileges hereunder as are specifically
authorized to be exercised by such Agent by the terms
hereof, together with such rights, remedies, powers and
privileges as are reasonably incidental thereto. Each of
the Administrative Agent and the Facility Agent may execute
any of its respective duties as such Agent hereunder by or
through agents or attorneys-in-fact and shall be entitled to
retain counsel and to act in reliance upon the advice of
such counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder, and shall not be
liable for the negligence or
58
misconduct of any agents or attorneys-in-fact selected by it
with reasonable care. The Agents and the Managing Agents
shall have no duties or responsibilities to any Bank, except
those expressly set forth in this Agreement, or any
fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or
otherwise exist against any Agent or any Managing Agent.
SECTION 9.02. Exculpatory Provisions. No Bank,
Agent or Managing Agent, nor any of their respective
directors, officers or employees shall be liable for any
action taken or omitted to be taken by them hereunder or in
connection herewith, except for their own gross negligence
or wilful misconduct; nor shall any Bank, Agent or Managing
Agent be responsible in any manner to any Person for the
representations, warranties or other statements made by any
other Person or for the due execution or delivery, validity,
effectiveness, genuineness, value, sufficiency or
enforceability against the Company or any other obligor of
this Agreement or any other document furnished pursuant
thereto or in connection herewith. Neither the Agents, the
Managing Agents nor any of their respective officers shall
be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement,
or to inspect the properties, books or records of the
Company or any of its Subsidiaries.
SECTION 9.03. Reliance by the Administrative
Agent and the Facility Agent. Each of the Administrative
Agent and the Facility Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without
limitation, counsel to the Company), independent accountants
and other experts selected by any such Agent. Each of the
Administrative Agent and the Facility Agent shall be fully
justified in failing or refusing to take any action under
this Agreement or any other documents executed and delivered
in connection herewith unless it shall first receive such
advice or concurrence of the Required Banks as it deems
appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Neither the
Administrative Agent nor the Facility Agent shall be liable
to any Bank for acting, or refraining from acting, under
this Agreement or any other documents executed and delivered
in connection herewith in accordance with a request of the
Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all
the Banks and their respective successors and assigns.
SECTION 9.04. Notice of Default. Neither the
Administrative Agent nor the Facility Agent shall be deemed
to have knowledge or notice of the occurrence of any Event
of Default or Unmatured Event of Default hereunder unless it
has received notice from a Bank or the Company referring to
this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a
"notice of default". In the event that the Administrative
Agent or the Facility Agent receives such a notice, it shall
give notice thereof to the Banks and to such other Agent.
The Facility Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as shall
be reasonably directed by the Required Banks; provided,
however, that unless and until the Facility Agent shall have
received such direction, the Facility Agent may (but shall
not be obligated to) take such action, or refrain from
taking such action,
59
with respect to such Event of Default or Unmatured Event of
Default as it shall deem advisable in the best interests of
the Banks; provided further that the Facility Agent shall
have the right, power and authority to take the affirmative
action specified in Section 8.01 hereof only upon the
direction of the Required Banks.
SECTION 9.05. Indemnification. Each Bank hereby
agrees, in the ratio that such Bank's Revolving Credit
Commitment from time to time bears to the Total Commitment
from time to time, to indemnify and hold harmless each Agent
and each Managing Agent, as agents hereunder, from and
against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
demands, damages, costs and expenses (including, without
limitation, attorneys' fees and expenses) incurred or
suffered by such Agent or Managing Agent in such capacity as
a result of any action taken or omitted to be taken by such
Agent or Managing Agent in such capacity or otherwise
incurred or suffered by, made upon, or assessed against such
Agent or Managing Agent in such capacity; provided that no
Bank shall be liable for any portion of any such losses,
liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs or expenses
resulting from or attributable to gross negligence or wilful
misconduct on the part of such Agent or Managing Agent or
its officers, employees or agents. Without limiting the
generality of the foregoing, each Bank hereby agrees, in the
ratio aforesaid, to reimburse each Agent and Managing Agent
promptly following its demand for any out-of-pocket expenses
(including, without limitation, attorneys' fees and
expenses) incurred by such Agent or Managing Agent hereunder
and not reimbursed to such Agent or Managing Agent by the
Company. Each Bank's obligations under this paragraph shall
survive the termination of this Agreement or, if earlier,
the termination of the Revolving Credit Commitment of such
Bank, and the discharge of the Company's obligations
hereunder.
SECTION 9.06. Nonreliance on the Agents, the
Managing Agents and Other Banks. Each Bank expressly
acknowledges that neither any Agent, any Managing Agent nor
any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by any
such Agent or Managing Agent hereafter taken, including any
review of the affairs of the Company, shall be deemed to
constitute any representation or warranty by such Agent or
Managing Agent to any Bank. Each Bank represents to each
Agent and Managing Agent that it has, independently and
without reliance upon any Agent or Managing Agent or any
other Bank, and based on such documents and information as
it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property,
financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance
upon any Agent or Managing Agent or any other Bank, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and
creditworthiness of the Company.
SECTION 9.07. The Agents and the Managing Agents
in Their Individual Capacities. Each Agent and each
Managing Agent and their affiliates may make loans to,
accept deposits from and generally engage in any kind of
business with the Company as though such Agent or Managing
Agent were not an Agent or Managing Agent hereunder. With
respect to its Loans made or renewed by it, each Agent and
Managing Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the
60
same as though it were not an Agent or Managing Agent, and
the terms "Bank" and "Banks" shall include each Agent and
Managing Agent in its individual capacity.
SECTION 9.08. Excess Payments. Except for
payments made pursuant to Section 2.07, Section 2.11,
Section 2.12, Section 2.13 or Section 4.03 hereof, if any
Bank shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or
otherwise) on account of principal of or interest on any
Revolving Credit Loan in excess of its pro rata share of
payments and other recoveries obtained by all Banks or
holders on account of principal of and interest on Revolving
Credit Loans then owing to them, such Bank or other holder
shall purchase from the other Banks or holders such
participation in the Revolving Credit Loans owing to them as
shall be necessary to cause such purchasing Bank or holder
to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion
of the excess payment or other recovery is thereafter
recovered from such purchasing Bank or holder, the purchase
shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. The Company
agrees that any Bank or holder so purchasing a participation
from another Bank or holder pursuant to this Section 9.08
may, to the fullest extent permitted by law, exercise all
its rights of payment (including offset) with respect to
such participation as fully as if such Bank or holder were
the direct creditor of the Company in the amount of such
participation.
SECTION 9.09. Obligations Several. The
obligations of the Banks hereunder are several, and neither
any Bank nor the Agents nor the Managing Agents shall be
responsible for the obligations of any other Person
hereunder, nor will the failure of any Bank to perform any
of its obligations hereunder relieve the Agents, Managing
Agents or any Bank from the performance of their respective
obligations hereunder. Nothing contained in this Agreement,
and no action taken by the Banks or any Agent or Managing
Agent pursuant hereto or in connection herewith, shall be
deemed to constitute the Banks, together or with the Agents
and the Managing Agents, a partnership, association, joint
venture or other entity.
SECTION 9.10. Resignation by any Agent or
Managing Agent. Any Agent and any Managing Agent may resign
as such at any time upon at least 30 days' prior notice to
the Company and the Banks. In the event of such resignation
by the Administrative Agent or the Facility Agent, the
Required Banks (with the consent of the Company (which shall
not be unreasonably withheld) in the event that there then
does not exist an Event of Default or Unmatured Event of
Default), shall as promptly as practicable appoint a
successor Administrative Agent or Facility Agent, as the
case may be.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. No Waiver; Modifications in
Writing. No failure or delay on the part of the
Administrative Agent or the Facility Agent or any Bank in
exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies
that may be available to the Administrative Agent or the
Facility Agent or any Bank at law, in
61
equity or otherwise. Each request by the Company for any
amendment, modification, supplement, termination or waiver
of or to any provision of this Agreement shall be directed
to the Facility Agent, and no such amendment, modification,
supplement, termination or waiver of or to any provision of
this Agreement, nor consent to any departure by the Company
therefrom, shall be effective unless the same shall be in
writing and signed by the Company and by or on behalf of the
Facility Agent and the Required Banks; provided, however,
that no such amendment, modification, supplement,
termination, waiver or consent, as the case may be, which
has the effect of (x) reducing the rate or amount, or
extending the stated maturity or due date, of any sum
payable by the Company to any Bank hereunder, or (y) except
as provided in Section 2.07(e)(ii), Section 2.11(c)(i),
Section 2.12(i), Section 2.13(i), Section 4.03(b)(ii) and
Section 10.06(c) hereof, increasing the amount, or extending
the stated expiration or termination date, of any Bank's
Revolving Credit Commitment hereunder, or (z) changing this
Section 10.01, Section 10.06 or Section 10.07 hereof or the
definitions of the terms "Allocable Share", "Applicable
Facility Fee Percentage", "Applicable Margin", "Event of
Default", "Proportional Share", "Reference Bank", "Reference
Banks", "Required Banks", "Revolving Credit Commitment",
"Total Commitment" and "Unmatured Event of Default", or
changing the designation of the "Required Banks" as the
Banks entitled to direct the Facility Agent pursuant to
Section 8.01 hereof shall be effective unless the same shall
be signed by or on behalf of each Bank; provided further
that no such amendment, modification, supplement,
termination, waiver or consent, as the case may be, which
has the effect of (x) increasing the duties or obligations
of any Agent or any Managing Agent hereunder, or (y)
increasing the standard of care or performance required on
the part of any Agent or any Managing Agent hereunder, or
(z) reducing or eliminating the indemnities or immunities to
which any Agent or Managing Agent is entitled hereunder
(including, without limitation, any amendment or
modification of this Section 10.01) shall be effective
unless the same shall be signed by or on behalf of the Agent
or Managing Agent affected thereby. Any waiver of any
provision of this Agreement, and any consent to any
departure by the Company from the terms of any provision of
this Agreement, shall be effective only in the specific
instance and for the specific purpose for which given. No
notice to or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in
similar or other circumstances.
SECTION 10.02. Confidentiality. Each Agent,
Managing Agent and Bank shall maintain in confidence and not
publish, disseminate or disclose in any manner or to any
Person and shall not use (x) any material, nonpublic
information relating to the Company and its Subsidiaries or
(y) any technical, nonfinancial information, data or know-
how which is identified in writing as confidential by the
Company, in either case which may be furnished pursuant to
this Agreement, including any such information which may be
furnished pursuant to Article VI hereof (hereinafter
collectively called "Confidential Information"), subject to
each Agent, Managing Agent and Bank's (a) obligation to
disclose any such Confidential Information pursuant to a
request or order under applicable laws and regulations or
pursuant to a subpoena or other legal process, (b) right to
disclose any such nontechnical or financial Confidential
Information to bank examiners, its affiliates, auditors,
counsel, other professional advisors, other Banks, and other
banks or other entities in connection with an offer by such
Bank to sell a Participation to such other bank or other
entity or to make an assignment pursuant to Section 10.06(c)
hereof, (c) right to use any such Confidential Information
in connection with the transactions set forth herein, and
(d) right to disclose any such Confidential Information in
connection with the transactions set forth herein or in
connection with any litigation or dispute involving the
Agents, Managing Agents and Banks and the Company
62
or any of its Subsidiaries or any transfer or other
disposition by such Bank of any of its loans or other
extensions of credit to the Company or any of the Company's
Subsidiaries; provided, however, that Confidential
Information disclosed pursuant to clause (b) or (d) of this
sentence shall be so disclosed subject to such procedures as
are reasonably calculated to maintain the confidentiality
thereof; and provided further that Confidential Information
disclosed pursuant to applicable laws, regulations,
subpoenas or other legal process shall be so disclosed
subject to such confidentiality provisions, if any, as may
be provided under applicable law. The Agents, Managing
Agents and Banks agree, to the extent permitted by
applicable law, to use their best efforts promptly to notify
the Company in writing of each order, subpoena or other
legal process providing for the disclosure and/or production
of Confidential Information and shall, to the extent
permitted by applicable law, use their best efforts promptly
to supply the Company with a copy of such order, subpoena or
other legal process, in order that the Company may intervene
in the relevant administrative or legal proceeding or take
other appropriate legal action to protect the
confidentiality of such Confidential Information.
Notwithstanding the foregoing provisions of this Section
10.02, (i) the foregoing obligation of confidentiality shall
not apply to any such Confidential Information that was
known to such Bank or any of its affiliates prior to the
time it received such Confidential Information from the
Company or its Subsidiaries pursuant to this Agreement,
other than as a result of the disclosure thereof by a Person
who, to the knowledge or reasonable belief of such Agent,
Managing Agent or Bank, was prohibited from disclosing it by
any duty of confidentiality arising (under this Agreement or
otherwise) by contract or law, and (ii) the foregoing
obligation of confidentiality shall not apply to any such
Confidential Information that becomes part of the public
domain independently of any act of such Agent, Managing
Agent or Bank not permitted hereunder (through publication,
the issuance of a patent disclosing such information or
otherwise) or when identical or substantially similar
information is received by such Agent, Managing Agent or
Bank without restriction as to its disclosure or use, from a
Person who, to the knowledge or reasonable belief of such
Agent, Managing Agent or Bank, was not prohibited from
disclosing it by any duty of confidentiality arising (under
this Agreement or otherwise) by contract or law. The
obligations of each Agent, Managing Agent or Bank under this
Section 10.02 shall survive the termination of this
Agreement or, if earlier, the termination of the Revolving
Credit Commitment of such Bank.
SECTION 10.03. Notices, etc. Except where
telephonic instructions or notices are authorized herein to
be given, all notices, demands, instructions and other
communications required or permitted to be given to or made
upon any party hereto shall be in writing and (except for
financial statements and other documents to be furnished
pursuant to Article VI hereof (with the exception of notices
of the occurrence of an Event of Default or an Unmatured
Event of Default which is continuing), which may be sent by
first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by telecopier, and
shall be deemed to be given for purposes of this Agreement
on the day that such writing is delivered or sent to the
intended recipient thereof in accordance with the provisions
of this Section 10.03. Unless otherwise specified in a
notice sent or delivered in accordance with the foregoing
provisions of this Section 10.03, notices, demands,
instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their
respective addresses (or to their respective telecopier
numbers) indicated on Schedule II hereto, and, in the case
of telephonic instructions or notices, by calling the
telephone number or numbers indicated for such party on such
Schedule.
63
Anything herein to the contrary notwithstanding,
notices from the Company pursuant to Sections 2.01, 2.02,
2.05, 2.07, 2.11, 2.12, 2.13, 4.01, 4.02 and 4.03 hereof
shall be effective, for the purposes of this Agreement, only
when actually received by all Persons to whom such notices
are required to be sent or given.
SECTION 10.04. Costs, Expenses and Taxes. The
Company agrees to pay all costs and expenses of the Agents
in connection with the arrangement of the credit facilities
provided for herein and the negotiation, preparation,
printing, reproduction, execution and delivery of this
Agreement, any amendments or modifications of (or
supplements to) any of the foregoing and any and all other
documents furnished in connection with the execution and
delivery of this Agreement, including the reasonable fees
and out-of-pocket expenses of outside counsel to the Agents
relative thereto (limited, however, to such fees and
expenses of only one outside counsel who shall represent the
Agents), and all costs and expenses (whether of the Agents
or any Bank or otherwise and including, without limitation,
attorneys' fees and expenses), if any, in connection with
the enforcement of this Agreement or any other agreement
furnished pursuant hereto or in connection herewith. In
addition, the Company shall pay all stamp, transfer and
other transaction taxes payable or determined to be payable
in connection with the execution and delivery of this
Agreement, and the Company shall pay all such transaction
taxes payable or determined to be payable in connection with
the making of any Loan by any Bank, and the Company agrees
to save and hold each Agent, each Managing Agent and each
Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission
to pay such transaction taxes. If any action, suit or
proceeding arising from any of the foregoing is brought
against any Agent or any Managing Agent, any Bank, or any
other Person indemnified or intended to be indemnified
pursuant to this Section 10.04, the Company, to the extent
and in the manner directed by the Person or Persons
indemnified or intended to be indemnified, will resist and
defend such action, suit or proceeding or cause the same to
be resisted and defended by counsel designated by the
Company (which counsel shall be satisfactory to the Person
or Persons indemnified or intended to be indemnified). If
the Company shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of the Company contained herein shall be
breached, the Facility Agent may (but shall not be obligated
to) do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose. Any and
all amounts so expended by the Facility Agent shall be
repayable to it by the Company immediately upon the Facility
Agent's demand therefor, with interest at a rate per annum
(computed on the basis of a year consisting of 365 or, when
appropriate, 366 days) equal to the sum of (i) the Alternate
Base Rate in effect from time to time during the period from
and including the date so expended by such Agent to the date
of repayment, plus (ii) two percent (2%) per annum. The
obligations of the Company under this Section 10.04 shall
survive the termination of this Agreement and the discharge
of the Company's other obligations hereunder.
SECTION 10.05. Confirmations. The Company and
each Bank agree from time to time, upon written request
received by one from the other, to confirm to the other in
writing the aggregate unpaid principal amount of the Loans
of such Bank then outstanding.
SECTION 10.06. Successors and Assigns;
Participations. (a) This Agreement shall be binding upon
and inure to the benefit of the Company, the Banks, the
Agents, the Managing Agents, and their respective successors
and permitted assigns; provided, however, that any
assignment or transfer by a Bank of any or all of its rights
64
hereunder shall not materially increase the amount which
would have been payable to the Bank making such assignment
or transfer by the Company under this Agreement in the
absence of such assignment or transfer; and provided further
that except in accordance with the provisions of Section
6.02(a) hereof, the Company may not assign its rights
hereunder or in connection herewith or any interest herein
without the prior written consent of all of the Banks. This
Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the parties to this
Agreement and each of their respective successors and
permitted assigns.
(b) Any Bank may without the consent of the
Company sell participations to one or more banks or other
entities that, in the ordinary course of their business,
regularly extend credit of the types and in the amounts
extended by Banks under this Agreement (such banks and other
entities hereinafter referred to, collectively, as
"Participants") in all or a portion of its rights and
obligations under this Agreement (including, without
limitation, all or a portion of its Revolving Credit
Commitment and the Loan or Loans owing to it); provided,
however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the Participants
shall be entitled to the cost protection provisions
contained in Section 2.07, Section 2.11, and Section 3.04
hereof (provided that no Participant shall be entitled to
receive any greater amount pursuant to such provisions than
the transferor Bank would have been entitled to receive in
respect of the amount of the participation transferred by
such transferor Bank to such Participant had no such
transfer occurred and provided further that such Participant
shall have fully complied with the provisions of Section
10.06(g) hereof) and the cost protection provisions of
Section 2.11 hereof shall be applied by assuming that such
Bank did not sell any participation to any Participant, (iv)
the Company, the Agents, the Managing Agents and the other
Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations
under this Agreement and in connection with the cost
protection provisions of this Agreement to which any
Participant is entitled pursuant to this Section 10.06(b),
(v) such Bank shall retain the sole right and responsibility
to enforce the obligations of the Company relating to the
Loans, (vi) such Bank shall not, except with respect only to
changes in the amount of the Revolving Credit Commitment of
such Bank, or the principal amount of its Loans outstanding
or the Interest Rate or Interest Period with respect
thereto, or the amount of any fees payable to it hereunder
or extension of the Initial Termination Date or the Maturity
Date, enter into any agreement with any Participant that
would require the consent of such Participant with respect
to the exercise by such Bank of its voting rights under this
Agreement, and (vii) each such sale shall be made in the
ordinary course of such Bank's commercial banking business
and in compliance with all applicable laws.
(c) Any Bank may assign, with the prior written
consent of the Company and the Administrative Agent, to one
or more Eligible Assignees, or without the consent of the
Company or the Administrative Agent to one or more Banks,
all or a portion of its interests, rights and obligations
under this Agreement (including, without limitation, all or
a portion of its Revolving Credit Commitment and the same
portion of the applicable Loan or Loans at the time owing to
it, other than any Competitive Loans owing to it, which may,
but need not, be assigned); provided, however, that (i) each
such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and
obligations under this Agreement, the Loan or Loans at the
time owing to such assigning Bank, other than any
Competitive Loans owing to it, which may, but need not, be
assigned, (ii) except in the case of an assignment of a
Bank's entire interest hereunder, the amount of the
Revolving Credit Commitment of the assigning Bank which it
retains shall
65
be in a principal amount of not less than $50,000,000 and
the amount of such Revolving Credit Commitment which it
assigns (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall be an integral multiple of
$5,000,000; provided, however, that no assignment may be
made that, taken together with any simultaneous assignments,
would result in any Bank having a Revolving Credit
Commitment which is less than $50,000,000, (iii) the parties
to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance with respect to
such assignment and a processing and recordation fee of (A)
$1,000 in the case of an assignment to any Bank and (B)
$2,500 in all other cases (except that such fee shall not be
payable if the Eligible Assignee is an affiliate of the
assignor Bank), (iv) each such assignment shall be made in
the ordinary course of the assigning Bank's commercial
banking business and in compliance with all applicable laws,
(v) no such assignment shall be effective unless the
Eligible Assignee to which such assignment is made has fully
complied with the provisions of Section 10.06(g) hereof and
(vi) the Company shall have received a copy of the
Assignment and Acceptance signed by the parties thereto.
Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (x)
the Eligible Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank
hereunder, (y) the assignor Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be
released (except as provided in Section 2.11(b), Section
10.02 and Section 10.07 hereof) from its obligations under
this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto), and
(z) Schedule I and Schedule II hereto shall be deemed
amended to reflect the addition of such Eligible Assignee
and the decrease in the Revolving Credit Commitment of the
assignor Bank. Each assignee of an interest under this
Agreement shall take such interest subject to any request
made, waiver or consent given or other action taken
hereunder prior to the effective date of the Assignment and
Acceptance related to such assignment, and, until the
effective date of such Assignment and Acceptance, the
Administrative Agent and the Company shall be entitled
conclusively to assume that no assignment of any interest
under this Agreement has been made by any Bank or any
assignee. Notwithstanding any other provision of this
Section 10.06, any Bank may at any time assign all or any
portion of its rights under this Agreement held by it to a
Federal Reserve Bank; provided that no such assignment shall
release a Bank from any of its obligations hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assignor Bank and the Eligible Assignee
thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) the assignor Bank
represents and warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear
of any adverse claim, (ii) such assignor Bank makes no
representation or warranty, and assumes no responsibility
with respect to any statements, warranties or
representations made by the Company, in or in connection
with this Agreement or with the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document
furnished pursuant hereto, (iii) such assignor Bank makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or
the performance or observance by the Company of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto, (iv) such Eligible
Assignee confirms that it has received a copy of this
Agreement together with copies of the financial statements
and other documents referred
66
to in Section 5.01(e), Section 6.01(a) (i), Section
6.01(a)(ii) and Section 6.01(a)(v) hereof and such other
documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance, (v) such Eligible Assignee will,
independently and without reliance upon any Agent or any
Managing Agent, such assignor Bank or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement, (vi) such Eligible Assignee appoints and
authorizes each of the Administrative Agent and Facility
Agent to take such action as such Agent on its behalf and to
exercise such powers under this Agreement as are delegated
to such Agent by the terms hereof, together with such powers
as are reasonably incidental thereto, (vii) such Eligible
Assignee agrees that it will perform all of the obligations,
in accordance with the terms thereof, of the assignor Bank
under this Agreement which are assumed by such Eligible
Assignee under such Assignment and Acceptance, and (viii)
such Eligible Assignee confirms that it is an Eligible
Assignee.
(e) The Administrative Agent shall maintain at
its address listed on Schedule II hereto a copy of each
Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Banks and
the Revolving Credit Commitment of, and principal amount of
the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the
Company, the Agents, the Managing Agents and the Banks may
treat each person whose name is recorded in the Register as
a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company or
any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of an Assignment and
Acceptance executed by an assigning Bank and an Eligible
Assignee, together with the written consent of the Company
to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is
precisely in the form of Exhibit F hereto (or as agreed upon
by the Company and the Administrative Agent), (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register, (iii) give prompt notice
thereof to the Company, and (iv) deliver a copy of such
Assignment and Acceptance to the Company.
(g) If, pursuant to this Section 10.06, any
interest in this Agreement or any Loan is transferred to any
Participant (a "Transferee") which is organized under the
laws of any jurisdiction other than the United States or any
state thereof, the transferor Bank shall cause such
Transferee, concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Administrative Agent and
the Company) that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent,
the Company or the transferor Bank with respect to any
payments to be made to such Transferee in respect of the
Loans, (ii) to furnish to the transferor Bank in duplicate,
for each taxable year of such Transferee during which
interest arising under or in connection with this Agreement
is received, and before payment by the Company of any such
interest during such year (or at any other time as required
under United States income tax law), a properly completed
and executed copy of either Internal Revenue Service Form
4224 or Internal Revenue Service Form 1001 and Internal
Revenue Service Form W-8 or Internal Revenue Service Form W-
9 and any additional form (or such other form) as is
necessary to claim complete exemption from United States
withholding taxes (wherein such Transferee claims
67
entitlement to complete exemption from United States
withholding taxes on all payments hereunder), (iii) to agree
(for the benefit of the transferor Bank, the Administrative
Agent and the Company) to provide to the transferor Bank a
new Internal Revenue Service Form 4224 or Internal Revenue
Service Form 1001 and Internal Revenue Service Form W-8 or
Internal Revenue Service Form W-9 and any such additional
form (or any successor form or forms) upon the expiration or
obsolescence of any previously delivered form and comparable
statements in accordance with applicable United States laws
and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all
applicable United States laws and regulations with regard to
such withholding tax exemption, and (iv) to represent to the
transferor Bank (for the benefit of the transferor Bank, the
Administrative Agent and the Company) that the form or forms
so filed will be true and complete.
SECTION 10.07. Indemnification. In consideration
of the execution and delivery of this Agreement by the Banks
and the agreement to extend and maintain the credit provided
hereunder, the Company hereby agrees to indemnify, exonerate
and hold each of the Banks, the Agents, the Managing Agents,
and each of the officers, directors, employees and agents of
each of the Banks, the Agents and the Managing Agents, and
each Person, if any, who controls any such Bank, such Agent
or any such Managing Agent, or any such officer, director,
employee or agent, within the meaning of the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934,
as amended (herein collectively called the "Indemnitees" and
individually called an "Indemnitee"), free and harmless from
and against any and all actions, claims, causes of action,
suits, losses, liabilities, damages and expenses, including
without limitation, reasonable attorneys' fees and
disbursements (herein collectively called the "Indemnified
Liabilities"), which may be incurred by or asserted against
the Indemnitees or any Indemnitee as a result of, or arising
out of, or relating to, or in connection with, any
investigation, litigation or proceeding related to (i) any
use made or proposed to be made by the Company of the
proceeds of any Loan, (ii) the consummation of the
transactions contemplated by any such use or proposed use,
(iii) any untrue statement or alleged untrue statement of
any material fact made by the Company in connection
therewith, or (iv) the omission or alleged omission by the
Company to state in connection therewith a material fact
required to be so stated or necessary to make the statements
made, in light of the circumstances under which they were
made, not misleading, whether or not any such Indemnitee is
a party thereto, and, to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law;
provided, however, that there shall be no right to
indemnification or contribution under this Section 10.07 for
Indemnified Liabilities based upon or arising out of actions
or omissions by any Bank in a capacity other than that of a
lender to the Company or by any Agent or any Managing Agent
in its capacity other than that as agent for the Banks
hereunder. Each Indemnitee will use its best efforts to
promptly notify the Company of each event of which it has
knowledge which may give rise to a claim under the
indemnification provisions of this Section 10.07. If any
action, suit or proceeding arising from any of the foregoing
is brought against any Agent or any Managing Agent, any Bank
or any other Person indemnified or intended to be
indemnified pursuant to this Section 10.07, the Company, to
the extent and in the manner directed by the Person or
Persons indemnified or intended to be indemnified, will
resist and defend such action, suit or proceeding or cause
the same to be resisted and defended by counsel designated
by the Company (which counsel shall be reasonably
satisfactory to the Person or Persons indemnified or
intended to be indemnified). Each Indemnitee will use its
best efforts to cooperate in the defense of any such action,
suit or proceeding. If
68
the Company shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty
on the part of the Company contained herein shall be
breached, the Facility Agent may (but shall not be obligated
to) do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose. Any and
all amounts so expended by the Facility Agent shall be
repayable to it by the Company immediately upon the Facility
Agent's demand therefor, with interest at a rate per annum
(computed on the basis of a year consisting of 365 or, when
appropriate, 366 days) equal to the sum of (i) the Alternate
Base Rate in effect from time to time during the period from
and including the date so expended by the Facility Agent to
the date of repayment, plus (ii) two percent (2%) per annum.
The Company shall have no obligation to any Indemnitee under
this Section 10.07 to the extent that Indemnified
Liabilities result from gross negligence or wilful
misconduct on the part of such Indemnitee. The obligations
of the Company under this Section 10.07 shall survive the
termination of this Agreement and the discharge of the
Company's other obligations hereunder. The obligations of
each Bank (and of each other Indemnitee with respect to such
Bank) under this Section 10.07 shall survive the termination
of this Agreement or, if earlier, the termination of the
Revolving Credit Commitment of such Bank.
SECTION 10.08. Reference Banks. Each Reference
Bank agrees to use its best efforts to furnish quotations to
the Administrative Agent as contemplated hereby by 10:30
a.m., New York City time, on the day such quotations are
required to be furnished hereunder. If any Reference Bank
does not furnish a timely quotation, the Administrative
Agent shall determine the relevant Eurodollar Rate on the
basis of the quotations, if any, furnished by the remaining
Reference Banks and, in the event that all Reference Banks
fail to so furnish a quotation, on the basis of such other
information as the Administrative Agent in its sole
discretion shall deem appropriate. If any Reference Bank
assigns its Loans to an unaffiliated institution, the
Administrative Agent shall, in consultation with the
Company, and with the consent of the Required Banks, appoint
another Bank to act as a Reference Bank hereunder. If the
Company is entitled to replace any Bank (which is also a
Reference Bank) as provided in Section 2.07(e), Section
2.11(c), Section 2.12, Section 2.13 or Section 4.03(b)
hereof, the Company may, in consultation with the
Administrative Agent, and with the consent of the Required
Banks, appoint a replacement Reference Bank.
SECTION 10.09. Headings. Article and Section
headings used in this Agreement are for convenience of
reference only and shall not affect the construction of this
Agreement.
SECTION 10.10. Circumstances Requiring
Consultation. In the event that (i) additional amounts have
become payable to an Affected Bank as a result of the
occurrence of circumstances referred to in Section 2.07
hereof, (ii) any Affected Bank shall have made a
determination pursuant to Section 4.03(a) hereof, or (iii)
additional amounts have become payable to any Bank or any
Participant pursuant to Section 2.11 hereof, then, and in
any such event, such Affected Bank, Bank or Participant, as
the case may be, shall promptly consult with the
Administrative Agent and the Company in order to endeavor,
and such Affected Bank, Bank or Participant, as the case may
be, shall use its best efforts, to take such action as, in
the good faith judgment of such Affected Bank, Bank or
Participant, is then reasonable and practicable under the
circumstances (including, without limitation, changing the
location of its lending office or participating office, as
the case may be, in order to move the situs of such Affected
Bank's or Bank's Loans or such Participant's participation
to another jurisdiction, if possible without material
liability, cost or expense to such Affected Bank, Bank or
Participant and without
69
material reduction to such Affected Bank or Bank of any
amount otherwise receivable by such Affected Bank or Bank
under this Agreement or receivable by such Participant under
its participation) to mitigate or eliminate the effect of
such event. In addition, in the event that (i) any Bank or
Participant shall, as a result of reserves maintained by
such Bank or Participant with any Federal Reserve Bank of
the United States in connection with any of the Loans or
participations, be entitled to receive, and receive, amounts
from such Federal Reserve Bank (in the form of interest or
otherwise) in respect of such reserves, or (ii) any Bank or
Participant shall receive any similar (or other) benefit as
a result of actions taken by such Bank or Participant with
respect to any Capital Adequacy Rule, then, and in any such
event, such Bank or Participant shall promptly consult with
the Administrative Agent and the Company in order to
endeavor, and such Bank or Participant shall use its best
efforts, to take such action as, in the good faith judgment
of such Bank or Participant, is then reasonable and
practicable under the circumstances to give the benefit of
such amounts or benefits to the Company.
SECTION 10.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and
by different parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same
Agreement.
SECTION 10.12. GOVERNING LAW. THIS AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 10.13. CONSENT TO JURISDICTION AND
SERVICE OF PROCESS; WAIVER OF JURY TRIAL. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST THE COMPANY WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE CITY OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY
ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH
THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN TAKEN OR IS
AVAILABLE. THE COMPANY IRREVOCABLY AGREES THAT ALL PROCESS
IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
IT AT ITS ADDRESS SET FORTH ON SCHEDULE II HERETO OR AT SUCH
OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE
BEEN NOTIFIED PURSUANT HERETO, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY THE COMPANY TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. EACH OF THE COMPANY, THE AGENTS,
THE MANAGING AGENTS AND THE BANKS IRREVOCABLY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH
70
ACTION OR PROCEEDING IN ANY SUCH JURISDICTION. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY APPLICABLE LAW OR LIMIT THE RIGHT OF ANY
BANK TO BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURT
OF ANY OTHER COMPETENT JURISDICTION.
SECTION 10.14. Severability of Provisions. Any
provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.15. Procedures Relating to Addendum.
On or prior to the Effective Date a bank may deliver an
Addendum in accordance with the provisions of this Section
10.15.
(a) Banks Listed on the Signature Pages. A bank
listed on the signature pages hereto may become a party
hereto, and may increase or decrease the amount of its
Revolving Credit Commitment as set forth opposite its name
on Schedule I hereto by delivering an Addendum,
appropriately completed and duly executed, to the Company.
Upon acceptance of such Addendum by the Company, such bank
shall become a party to this Agreement as a Bank with the
Revolving Credit Commitment set forth in such Addendum with
the same effect as if such bank had executed this Agreement
by signing on the signature pages hereto.
(b) Banks Not Listed on Signature Pages. A bank
not listed on the signature pages to this Agreement may
become a party hereto by delivering an Addendum,
appropriately completed and duly executed, to the Company.
Upon acceptance of such Addendum by the Company, such bank
shall become a party to this Agreement as a Bank with the
Revolving Credit Commitment set forth in such Addendum with
the same effect as if such bank had executed this Agreement
by signing on the signature pages hereto.
(c) Automatic Amendment of the Agreement. Upon
acceptance by the Company of an Addendum conforming to the
requirements of this Section 10.15, Schedule I and Schedule
II hereto shall be amended automatically to reflect the
changes in Revolving Credit Commitments and other
information set forth in such Addendum.
(d) Notification of Administrative Agent, etc.
The Company shall notify the Administrative Agent promptly
of the Company's acceptance of any Addendum and shall
furnish the Administrative Agent copies of the same. The
Company may not accept an Addendum after the Effective Date.
SECTION 10.16. Maximum Interest. Nothing
contained in this Agreement shall be deemed to establish or
require the payment of interest at a rate in excess of the
maximum rate permitted by applicable law. In the event that
the rate of interest required to be paid to any of the Banks
under this Agreement exceeds the maximum rate permitted by
applicable law, the rate of interest required to be paid to
such Banks hereunder shall be automatically reduced to the
maximum rate permitted by applicable law.
71
SECTION 10.17. Special Termination Provision. If
the Effective Date has not occurred on or prior to March 10,
1998, then the obligations of the Banks hereunder shall
terminate and this Agreement shall cease to be binding upon
the parties hereto, except that the obligations of the
Company under Section 10.04 and Section 10.07 hereof shall
survive such termination.
72
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
OCCIDENTAL PETROLEUM CORPORATION,
by
XXXXX X. XXX
-------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President and Treasurer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, in its
individual capacity and as
Syndication Agent,
by
J. XXXXXXX XXXXXXX
-------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, in its
individual capacity and as
Administrative Agent,
by
X. XXX XXXXXXXX
------------------------------------
Name: X. Xxx Xxxxxxxx
Title: Senior Relationship Manager
THE CHASE MANHATTAN BANK, in its
individual capacity, as
Administrative Agent and as
Facility Agent,
by
XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, in its individual
capacity and as Documentation
Agent,
by
XXXXX X. XXXXX
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
73
ABN AMRO BANK, N.V., in its
individual capacity and as a
Managing Agent,
by
XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Group Vice President
ARAB BANK PLC, GRAND CAYMAN,
by
XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Regional Manager
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED,
by
XXXX XXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
BANK BRUSSELS XXXXXXX, NEW YORK
BRANCH,
by
XXXXX XXXXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
XXXXXXXX X. X. VANGAEVER
-----------------------------------
Name: Xxxxxxxx X. X. Vangaever
Title: Senior Vice President Credit
74
THE BANK OF NEW YORK, in its
individual capacity and as a
Managing Agent,
by
XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS,
by
XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President &
Manager
XXXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, in its individual
capacity and as a Managing Agent,
by
XXXXXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF
COMMERCE, in its individual
capacity and as a Managing Agent,
by
XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
CITICORP USA, INC., in its
individual capacity and as a
Managing Agent,
by
XXXX XXXXXXXXX PACKARD
------------------------------------
Name: Xxxx Xxxxxxxxx Packard
Title: Assistant Vice President
75
CREDIT LYONNAIS NEW YORK BRANCH, in
its individual capacity and as a
Managing Agent,
by
PHILIPPE SOUSTRA
----------------------------------
Name: Philippe Soustra
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, in its
individual capacity and as a
Managing Agent,
by
XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
by
XXXX X. XXXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate
DEUTSCHE BANK AG, NEW YORK BRANCH
AND CAYMAN ISLANDS BRANCH, in its
individual capacity and as a
Managing Agent,
by
XXXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
by
XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
00
XXXXXXXX XXXX XX, XXX XXXX BRANCH
AND GRAND CAYMAN BRANCH, in its
individual capacity and as a
Managing Agent,
by
BRIGITTE SACIN
----------------------------------
Name: Brigitte Sacin
Title: Assistant Treasurer
by
XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
BANKBOSTON, N.A.,
by
J. R. XXXXXXX, JR.
----------------------------------
Name: J. R. Xxxxxxx, Jr.
Title: Director
Energy & Utilities
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY, in its individual capacity
and as a Managing Agent,
by
XXXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY,
by
XXXX-XXXX XXXXXXXXX
----------------------------------
Name: Xxxx-Xxxx Xxxxxxxxx
Title: SVP & Senior Manager
77
KREDIETBANK N.V., in its individual
capacity and as a Managing Agent,
by
XXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
by
XXX X. XXXXX
----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.,
by
XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Deputy General Manager
MELLON BANK, N.A., in its
individual capacity and as a
Managing Agent,
by
XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. XxXxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A., in its
individual capacity and as a
Managing Agent,
by
XXXXXX X. XXXXX
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
78
ROYAL BANK OF CANADA,
by
XXXXXX X. XXXXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Manager
THE SAKURA BANK, LIMITED LOS
ANGELES AGENCY,
by
XXXXX XXXX
----------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President &
Assistant General Manager
SOCIETE GENERALE, in its individual
capacity and as a Managing Agent,
by
XXXXXX Y. L. XXXX
---------------------------------
Name: Xxxxxx Y. L. Chan
Title: Vice President
STANDARD CHARTERED BANK,
by
XXXX XXXXXXX-XXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxx-Xxxxxxxx
Title: Vice President
by
XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
79
TORONTO DOMINION (TEXAS), INC., in
its individual capacity and as a
Managing Agent,
by
XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., in
its individual capacity and as a
Managing Agent,
by
XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY, in its individual capacity
and as a Managing Agent,
by
XXXXXXX A. P. DEERE
-----------------------------------
Name: Xxxxxxx A. P. Deere
Title: Director
by
W. XXXXXX XXXXX
-----------------------------------
Name: W. Xxxxxx Xxxxx
Title: Assistant Vice President
WACHOVIA BANK N.A.,
by
XXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
SCHEDULE I TO
CREDIT AGREEMENT
AMOUNT OF COMMITMENTS
AMOUNT OF
REVOLVING
CREDIT
NAME OF BANK COMMITMENT
------------ --------------
BANK OF AMERICA $170,000,000
NATIONAL TRUST AND
SAVINGS ASSOCIATION
THE BANK OF NOVA SCOTIA $170,000,000
THE CHASE MANHATTAN $170,000,000
BANK
XXXXXX GUARANTY TRUST $170,000,000
COMPANY OF NEW YORK
ABN AMRO BANK, N.V. $110,000,000
THE BANK OF NEW YORK $110,000,000
CANADIAN IMPERIAL BANK $110,000,000
OF COMMERCE
CITICORP USA, INC. $110,000,000
CREDIT LYONNAIS NEW $110,000,000
YORK BRANCH
CREDIT SUISSE FIRST $110,000,000
BOSTON
DEUTSCHE BANK AG, NEW $110,000,000
YORK BRANCH AND CAYMAN
ISLANDS BRANCH
DRESDNER BANK AG, NEW $110,000,000
YORK BRANCH AND GRAND
CAYMAN BRANCH
THE FUJI BANK, LIMITED, $110,000,000
LOS ANGELES AGENCY
KREDIETBANK N.V. $110,000,000
MELLON BANK, N.A. $110,000,000
NATIONSBANK OF TEXAS, $110,000,000
N.A.
SOCIETE GENERALE $110,000,000
TORONTO DOMINION $110,000,000
(TEXAS), INC.
AMOUNT OF
REVOLVING
CREDIT
NAME OF BANK COMMITMENT
------------ ---------------
UNION BANK OF $110,000,000
CALIFORNIA, N.A.
UNION BANK OF $110,000,000
SWITZERLAND, HOUSTON
AGENCY
AUSTRALIA AND NEW $85,000,000
ZEALAND BANKING GROUP
LIMITED
BANKBOSTON, N.A. $85,000,000
BANQUE NATIONALE DE $85,000,000
PARIS
THE INDUSTRIAL BANK OF $85,000,000
JAPAN, LTD., LOS
ANGELES AGENCY
ROYAL BANK OF CANADA $85,000,000
THE SAKURA BANK, $85,000,000
LIMITED LOS ANGELES
AGENCY
ARAB BANK PLC, GRAND $50,000,000
CAYMAN
BANK BRUSSELS XXXXXXX, $50,000,000
NEW YORK BRANCH
THE LONG-TERM CREDIT $50,000,000
BANK OF JAPAN, LTD.
STANDARD CHARTERED BANK $50,000,000
WACHOVIA BANK N.A. $50,000,000
TOTAL $3,200,000,000
SCHEDULE II TO
CREDIT AGREEMENT
Address, Telecopier and Telephone Numbers
Occidental Petroleum OCCIDENTAL PETROLEUM CORPORATION
Corporation 00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Treasurer
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Bank of America National BANK OF AMERICA NATIONAL TRUST AND
Trust and Savings SAVINGS ASSOCIATION
Association 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Maarten Van Otterloo
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Chase Manhattan Bank THE CHASE MANHATTAN BANK
Global Oil & Gas Group
000 Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Xxxxxx Guaranty Trust XXXXXX GUARANTY TRUST COMPANY OF NEW
Company of New York YORK
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx Xxxxx
Tel. No. 000-000-0000
000-000-0000
Telecopier No. 000-000-0000
ABN Amro Bank, N.V. ABN AMRO BANK, N.V.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Stimfl
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Arab Bank Plc, Grand ARAB BANK PLC, GRAND CAYMAN
Cayman 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Australia and New Zealand AUSTRALIA AND NEW ZEALAND BANKING
Banking Group Limited GROUP LIMITED
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Tel No. 000-000-0000
Telecopier No. 000-000-0000
Bank Brussels Xxxxxxx, BANK BRUSSELS XXXXXXX, NEW YORK BRANCH
New York Branch 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Tel No. 000-000-0000
Telecopier No. 000-000-0000
The Bank of New York THE BANK OF NEW YORK
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xx Xxxxxx
Tel No. 000-000-0000
Telecopier No. 000-000-0000
Banque Nationale de Paris BANQUE NATIONALE DE PARIS
000 Xx. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx (Xxxxx) X. Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Canadian Imperial Bank of CANADIAN IMPERIAL BANK OF COMMERCE
Commerce Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
copy to:
CIBC Xxxxxxxxxxx Corp.
Two Houston Center
Suite 1200
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Tel. No. 000-000-0000
Citicorp USA, Inc. CITICORP USA, INC.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Credit Lyonnais New York CREDIT LYONNAIS NEW YORK BRANCH
Branch 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Page Dillehunt
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Credit Suisse First CREDIT SUISSE FIRST BOSTON
Boston 00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Deutsche Bank AG, New DEUTSCHE BANK AG, NEW YORK BRANCH
York Branch and Cayman AND CAYMAN ISLANDS BRANCH
Islands Branch 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Dresdner Bank AG, New DRESDNER BANK AG, NEW YORK BRANCH AND
York Branch and Grand GRAND CAYMAN BRANCH
Cayman Branch 000 Xx. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
BankBoston, N.A. BANKBOSTON, N.A.
000 Xxxxxxx Xxxxxx
Mail Stop 01-08-02
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Fuji Bank, Limited, THE FUJI BANK, LIMITED,
Los Angeles Agency LOS ANGELES AGENCY
000 Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Mano Xxxxxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Industrial Bank of THE INDUSTRIAL BANK OF JAPAN, LTD., LOS
Japan, Ltd., ANGELES AGENCY
Los Angeles Agency 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx-Xxxx Xxxxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Kredietbank N.V. KREDIETBANK N.V.
550 So. Hope Street, Suite 1775
Xxx Xxxxxxx, XX 00000
Attention: Luc Cools
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Long-Term Credit Bank THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
of Japan, Ltd. 000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Mellon Bank, X.X. XXXXXX BANK, N.A.
000 Xx. Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx XxXxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
NationsBank of Texas, NATIONSBANK OF TEXAS, N.A.
N.A. 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Royal Bank of Canada ROYAL BANK OF CANADA
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
The Sakura Bank, Limited THE SAKURA BANK, LIMITED
Los Angeles Agency LOS ANGELES AGENCY
000 Xx. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Societe Generale SOCIETE GENERALE
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Y.L. Xxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Standard Chartered Bank STANDARD CHARTERED BANK
000 Xxxxxxxx Xxxxxxxxx, X00-00
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Toronto Dominion (Texas), TORONTO DOMINION (TEXAS), INC.
Inc. 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Union Bank of California, UNION BANK OF CALIFORNIA, N.A.
N.A. 0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Dallas
Union Bank of UNION BANK OF SWITZERLAND,
Switzerland, Houston HOUSTON AGENCY
Agency 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Deere
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
Wachovia Bank N.A. WACHOVIA BANK N.A.
000 Xxxxx Xxxxxx, XX
Mail Code 373
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Tel. No. 000-000-0000
Telecopier No. 000-000-0000
EXHIBIT A
---------
COMPETITIVE BID REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
000 Xxxxxxxxx Xx. X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation,
a Delaware corporation (the "Company"), refers to the Credit
Agreement dated as of December 18, 1997 (the "Credit
Agreement"), among the Company, each bank party thereto,
Bank of America National Trust and Savings Association, as
syndication agent, Xxxxxx Guaranty Trust Company of New
York, as documentation agent, The Bank of Nova Scotia and
The Chase Manhattan Bank, as administrative agents (with
each reference herein to the administrative agent in the
singular meaning The Bank of Nova Scotia) and The Chase
Manhattan Bank, as facility agent. Capitalized terms used
herein and not defined shall have the meanings assigned to
such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to
Section 2.02(b) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in
that connection sets forth below the terms on which such
Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing
----------------
(B) Principal amount of Competitive
Borrowing 1/
----------------
(C) Interest rate basis 2/
----------------
(D) Interest Period and the last
day thereof 3/
----------------
Upon acceptance of any or all of the Competitive
Loans offered by the Banks in response to this request, the
Company shall be deemed to have represented and warranted
----------------------------
1/ Not less than $50,000,000 or greater than the available
Total Commitment.
2/ Eurodollar Loan or Fixed Rate Loan.
3/ Which, in the case of Fixed Rate Loans, shall not be less
than 8 days or more than 360 days, and which in each case
shall end not later than the Maturity Date.
that each of the conditions to lending specified in Section
7.02 of the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
-----------------------------
Name:
Title:
EXHIBIT B
---------
NOTICE OF COMPETITIVE BID REQUEST
[Date]
[Name of Bank]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as
of December 18, 1997, (the "Credit Agreement"), among
Occidental Petroleum Corporation, a Delaware corporation
(the "Company"), each bank party thereto, Bank of America
National Trust and Savings Association, as syndication
agent, Xxxxxx Guaranty Trust Company of New York, as
documentation agent, The Bank of Nova Scotia and The Chase
Manhattan Bank, as administrative agents (with each
reference herein to the administrative agent in the singular
meaning The Bank of Nova Scotia) and The Chase Manhattan
Bank, as facility agent. Capitalized terms used herein and
not defined shall have the meanings assigned to such terms
in the Credit Agreement.
The Company made a Competitive Bid Request on
, pursuant to Section 2.02 of the Credit
Agreement and in that connection you are invited to submit a
Competitive Bid by [Date]/[Time] 1/. Your Competitive Bid
must comply with Section 2.02 of the Credit Agreement and
the terms set forth below on which the Competitive Bid
Request was made:
(A) Date of Competitive Borrowing
------------------
(B) Principal amount of
Competitive Borrowing
------------------
(C) Interest rate basis
------------------
----------------------------
1/ The Competitive Bid must be received by the
Administrative Agent (i) in the case of Eurodollar Loans,
not later than 2:00 p.m., New York City time, four Business
Days before a proposed Competitive Borrowing and (ii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York
City time, on the Borrowing Date of the proposed Competitive
Borrowing.
(D) Interest Period and the last
day thereof
------------------
Very truly yours,
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By
-------------------------
Name:
Title:
EXHIBIT C
---------
COMPETITIVE BID
[Date]
The Bank of Nova Scotia, as
Administrative Agent for the
Banks referred to below
000 Xxxxxxxxx Xx. X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the
Credit Agreement dated as of December 18, 1997 (the "Credit
Agreement"), among Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), each bank party
thereto, Bank of America National Trust and Savings
Association, as syndication agent, Xxxxxx Guaranty Trust
Company of New York, as documentation agent, The Bank of
Nova Scotia and The Chase Manhattan Bank, as administrative
agents (with each reference herein to the administrative
agent in the singular meaning The Bank of Nova Scotia) and
The Chase Manhattan Bank, as facility agent. Capitalized
terms used herein and not defined shall have the meanings
assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid
pursuant to Section 2.02(c) of the Credit Agreement, in
response to the Competitive Bid Request made by the Company
on , , and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Principal amount 1/
--------------
(B) Competitive Bid Rate 2/
--------------
(C) Interest Period and the
last day thereof
--------------
----------------------------
1/ Not less than $5,000,000 and in integral multiples of
$1,000,000 and which may equal the entire aggregate
principal amount of the Competitive Borrowing requested by
the Company. Multiple bids will be accepted by the
Administrative Agent.
2/ I.e., in the case of Eurodollar Loans, the Margin, and in
the case of Fixed Rate Loans, the fixed rate of interest
offered (expressed as a percentage rate per annum rounded,
if necessary, to the nearest 1/10,000 of one percent).
The undersigned hereby confirms that it is
prepared to extend credit to the Company upon acceptance by
the Company of this bid in accordance with Section 2.02(e)
of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By
-------------------------
Name:
Title:
EXHIBIT D
---------
REVOLVING CREDIT BORROWING REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
000 Xxxxxxxxx Xx. X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation,
a Delaware corporation (the "Company"), refers to the Credit
Agreement dated as of December 18, 1997 (the "Credit
Agreement"), among the Company, each bank party thereto (the
"Banks"), Bank of America National Trust and Savings
Association, as syndication agent, Xxxxxx Guaranty Trust
Company of New York, as documentation agent, The Bank of
Nova Scotia and The Chase Manhattan Bank, as administrative
agents (with each reference herein to the administrative
agent in the singular meaning The Bank of Nova Scotia) and
The Chase Manhattan Bank, as facility agent. Capitalized
terms used herein and not defined shall have the meanings
assigned to such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to
Section 2.01(b) of the Credit Agreement that it requests a
Revolving Credit Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such
Revolving Credit Borrowing is requested to be made:
(A) Date of Revolving Credit Borrowing
-------------------
(B) Principal amount of
Revolving Credit Borrowing 1/
-------------------
----------------------------
1/ Not less than
$50,000,000 and in integral multiples of $10,000,000.
(C) Interest rate basis 2/
-------------------
(D) Interest Period and the last
day thereof 3/
-------------------
Upon the borrowing of the Revolving Credit Loans
to be made by the Banks in response to this request, the
Company shall be deemed to have represented and warranted
that each of the conditions to lending specified in Section
7.02 of the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
-------------------------
Name:
Title:
----------------------------
2/ Eurodollar Loan or Alternate Base Rate Loan, or a
combination thereof.
3/ Which shall end not later than the Maturity Date.
EXHIBIT E
---------
OCCIDENTAL PETROLEUM CORPORATION
Certificate
(Pursuant to Section 7.01(b))
I, the undersigned, [an] [the] [Assistant]
Secretary of OCCIDENTAL PETROLEUM CORPORATION, a Delaware
corporation (the "Company"), DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to
Section 7.01(b) of that certain Credit Agreement, dated
as of December 18, 1997 among the Company, each bank
party thereto, Bank of America National Trust and
Savings Association, as syndication agent, Xxxxxx
Guaranty Trust Company of New York, as documentation
agent, The Bank of Nova Scotia and The Chase Manhattan
Bank, as administrative agents, and The Chase Manhattan
Bank, as facility agent (such credit agreement, as in
effect on the date of this Certificate, being herein
called the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this
Certificate have the meanings assigned to those terms
in the Credit Agreement.
2. There have been no amendments to the Restated
Certificate of Incorporation of the Company since
, 19 . */
3. Attached hereto as Annex A is a true and
correct copy of the By-laws of the Company as in effect
on the date hereof.
4. Attached hereto as Annex B is a true and
correct copy of the resolutions duly adopted by the
[Executive Committee of] the Board of Directors of the
Company on, and effective as of , 19 ,
which resolutions have not been revoked, modified,
amended or rescinded and are still in full force and
effect.
5. The persons named in Annex C attached hereto
have been duly elected and have duly qualified as, and
at all times since , 19 (to and including
the date hereof) have been, officers of the Company,
holding the respective offices set forth therein
opposite their names, and the signatures set forth
therein opposite their names are their genuine
signatures.
----------------------------
*/ Insert a date which is on or before the date of the Secretary
of State's Certificate furnished pursuant to clause (i) of
Section 7.01(a) of the Credit Agreement.
6. I know of no proceeding for the dissolution or
liquidation of the Company or threatening its
existence.
WITNESS my hand as of this th day of December,
1997.
--------------------------------
Name:
Title: [Assistant] Secretary
OCCIDENTAL PETROLEUM CORPORATION
I, the undersigned, a Vice President of the
Company, DO HEREBY CERTIFY that is [a] [the]
duly elected and qualified [Assistant] Secretary of the
Company and the signature above is his genuine signature.
WITNESS my hand as of this th day of December,
1997.
--------------------------------
Name:
Title: Vice President
OCCIDENTAL PETROLEUM CORPORATION
EXHIBIT F
---------
ASSIGNMENT AND ACCEPTANCE
Dated
----------,---
Reference is made to the Credit Agreement dated as
of December 18, 1997 (the "Credit Agreement"), among
OCCIDENTAL PETROLEUM CORPORATION, a Delaware corporation
(the "Company"), each bank party thereto (the "Banks"), Bank
of America National Trust and Savings Association, as
syndication agent, Xxxxxx Guaranty Trust Company of New
York, as documentation agent, The Bank of Nova Scotia and
The Chase Manhattan Bank, as administrative agents (in such
capacity, the "Administrative Agents", with each reference
herein to the "Administrative Agent" in the singular meaning
The Bank of Nova Scotia) and The Chase Manhattan Bank, as
facility agent (in such capacity, the "Facility Agent").
Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit
Agreement.
(the "Assignor") and
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from
the Assignor, a % interest in and to all the Assignor's
rights and obligations under the Credit Agreement as of the
Effective Date (as defined below) (including, without
limitation, such percentage interest in the Revolving Credit
Commitment of the Assignor on the Effective Date and such
percentage interest in the Revolving Credit Loans [and
Competitive Loans], if any, owing to the Assignor
outstanding on the Effective Date together with such
percentage interest in all unpaid interest with respect to
such Revolving Credit Loans [and Competitive Loans] and
Facility Fees, if any, accrued to the Effective Date
[excluding, however, any interest in the Competitive Loans
owing to the Assignor outstanding on the Effective Date or
in the unpaid interest with respect to such Competitive
Loans owing to the Assignor]).
2. The Assignor (i) represents that as of the
date hereof, its Revolving Credit Commitment (without giving
effect to assignments thereof which have not yet become
effective) is $ and the outstanding balance of
its Revolving Credit Loans (unreduced by any assignments
thereof which have not yet become effective) is $
[and the outstanding balance of its Competitive Loans
(unreduced by any assignments thereof which have not yet
become effective) is $ ]; (ii) makes no
representation or warranty with respect to, and assumes no
responsibility with respect to any statements, warranties or
representations made by the Company in or in connection
with, the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document
furnished pursuant thereto; (iii) represents and warrants
that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is
free and clear of any adverse claim; and (iv) makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Company or
the performance or observance by the Company of any of its
obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that
it is legally authorized to enter into this Assignment and
Acceptance; (ii) confirms that it has received a copy of
the Credit Agreement, together with copies of the most
recent financial statements and other documents referred to
in Section 5.01(e), Section 6.01(a)(i), Section 6.01(a)(ii)
and Section 6.01(a)(v) thereof and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment
and Acceptance; (iii) agrees that it will, independently and
without reliance upon any Agent, the Assignor or any other
Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the
Credit Agreement; (iv) confirms that it is an Eligible
Assignee; (v) appoints and authorizes each of the Facility
Agent and the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Facility Agent or
the Administrative Agent, as the case may be, by the terms
thereof, together with such powers as are reasonably
incidental thereto; (vi) agrees that it will perform in
accordance with their terms all the obligations of the
Assignor under the Credit Agreement, assumed by it under
this Assignment and Acceptance, which by the terms of the
Credit Agreement are required to be performed by it as a
Bank; [and] (vii) agrees that it will keep confidential all
information with respect to the Company furnished to it by
the Company or the Assignor (other than information
generally available to the public or otherwise available to
the Assignor on a nonconfidential basis) [; and (viii)
attaches the forms referred to in Section 10.06(g) of the
Credit Agreement as to the Assignee's complete exemption
from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit
Agreement */ ].
4. The effective date for this Assignment and
Acceptance shall be (the "Effective Date") **/ .
Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent
pursuant to Section 10.06(e) of the Credit Agreement.
5. Upon such acceptance and recording, from and
after the Effective Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations
of a Bank thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations
under the Credit Agreement (except as provided in Section
2.11(b), Section 10.02 and Section 10.07 thereof).
6. Upon such acceptance and recording, from and
after the Effective Date, the Administrative Agent shall
make all payments in respect of the interest assigned hereby
(including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall,
directly between themselves, make all appropriate
adjustments in payments received from the Administrative
Agent for periods prior to the Effective Date or with
respect to the making of this assignment.
-----------------------------
*/ If the Assignee is organized under the laws of a
jurisdiction outside the United States.
**/ See Section 10.06(c). Such date shall be at least five
Business Days after the execution of this Assignment and
Acceptance and delivery thereof to the Administrative Agent.
7. Attached hereto is a Schedule containing the
information in respect of the Assignee that is set forth in
Schedule II to the Credit Agreement in respect of each Bank.
8. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
[NAME OF ASSIGNOR]
By
------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
------------------------
Name:
Title:
Accepted this day
----
of
-------------------
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By
--------------------------
Name:
Title:
EXHIBIT G
---------
[LETTERHEAD OF XXXXXX X. XXXXXX, ESQ.,
COUNSEL TO THE COMPANY]
December 18, 1997
To each of the Banks party
to the Credit Agreement
hereinafter referred to,
to Bank of America National
Trust and Savings Association,
as Syndication Agent,
to Xxxxxx Guaranty Trust
Company of New York,
as Documentation Agent
to The Bank of Nova Scotia and
The Chase Manhattan Bank,
as Administrative Agents, and
to The Chase Manhattan Bank,
as Facility Agent
Re: Occidental Petroleum Corporation
Credit Agreement dated as of
December 18, 1997
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental
Petroleum Corporation, a Delaware corporation (the
"Company"), and have acted as counsel to the Company in
connection with the negotiation, execution and delivery by
the Company of the (a) Credit Agreement, dated as of
December 18, 1997 (the "Credit Agreement"), among the
Company, each bank party thereto (collectively, the "Banks",
and individually, a "Bank"), Bank of America National Trust
and Savings Association, as syndication agent (in such
capacity, the "Syndication Agent"), Xxxxxx Guaranty Trust
Company of New York, as documentation agent (in such
capacity, the "Documentation Agent"), The Bank of Nova
Scotia and The Chase Manhattan Bank, as administrative
agents (in such capacity, the "Administrative Agents") and
The Chase Manhattan Bank, as facility agent (in such
capacity, the "Facility Agent").
This opinion is being delivered to you pursuant to
Section 7.01(c) of the Credit Agreement. Unless otherwise
defined herein, terms used herein have the meanings assigned
to such terms in the Credit Agreement.
I am familiar with the corporate proceedings taken
by the Company in connection with the negotiation and
authorization of the Credit Agreement and the transactions
contemplated thereby. In addition, I have made such inquiry
of such officers
and attorneys of the Company and its Subsidiaries and
examined such corporate records, certificates of officers of
the Company, of officers of the Company's Subsidiaries and
of public officials and such other documents and such questions
of law and fact as I have considered necessary or appropriate
to form the basis of the opinions hereinafter expressed.
Based upon, and subject to, the foregoing and the
four final paragraphs hereof, I am of the opinion that:
1. The Company is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of Delaware; and the
Company has all requisite corporate power and authority
(a) to own its assets and to carry on the business in
which it is engaged, (b) to execute, deliver and
perform its obligations under the Credit Agreement and
(c) to borrow in the manner and for the purpose
contemplated by the Credit Agreement.
2. The execution and delivery by the Company of
the Credit Agreement, the performance by the Company of
its obligations under the Credit Agreement, and the
Borrowings by the Company in the manner and for the
purpose contemplated by the Credit Agreement have been
duly authorized by all necessary corporate action
(including any necessary stockholder action) on the
part of the Company, and do not and will not (a)
violate any provision of any Federal, New York or
California law, rule or regulation (including, without
limitation, Regulation U and Regulation X) presently in
effect having applicability to the Company (or any
Specified Subsidiary), or of any order, writ, judgment,
decree, determination or award known to me which is
presently in effect and which has applicability to the
Company (or any Specified Subsidiary), or of the
charter or By-laws of the Company (or any Specified
Subsidiary), or (b), subject to the Company's
compliance with any applicable covenants pertaining to
its incurrence of unsecured indebtedness, result in a
breach of or constitute a default under any indenture
or loan or credit agreement, or any other agreement or
instrument, in each case known to me, to which the
Company or any Specified Subsidiary is a party or by
which the Company or any Specified Subsidiary or its
respective properties may be bound or affected, or (c)
to the best of my knowledge, result in, or require, the
creation or imposition of any Lien of any nature upon
or with respect to any of the properties now owned or
hereafter acquired by the Company (other than any right
of set-off or banker's lien or attachment that any Bank
may have under applicable law), and, to the best of my
knowledge, the Company is not in default under or in
violation of its charter or By-laws as presently in
effect. The Borrowing on the date hereof of Loans in
an aggregate principal amount equal to the Total
Commitment would not result in a breach of or
constitute a default under any indenture or loan or
credit agreement, or any other agreement or instrument,
in each case known to me, to which the Company or any
Specified Subsidiary is a party or by which the Company
or any Specified Subsidiary or its respective
properties may be bound or affected.
3. The Credit Agreement has been duly executed
and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company, and is
enforceable against the Company in accordance with its
terms, and, if the Credit Agreement had referred to
California law rather than New York law as the
governing law, or if a California court having
jurisdiction were to decide that, notwithstanding the
reference to New York law, the Credit Agreement should
be
construed in accordance with, and governed by,
California law, then the Credit Agreement would be
enforceable against the Company in accordance with its
terms.
4. Except as set forth in the Company's annual
report on Form 1O-K for the year ended December 31,
1996, or its quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997, to the Securities and Exchange
Commission, and except as disclosed in writing to the
Banks prior to the Effective Date, there are, to the
best of my knowledge, no actions, suits, proceedings or
investigations pending or threatened against the
Company or any Subsidiary of the Company or any of its
respective properties before any court, governmental
agency or regulatory authority (Federal, state, local
or foreign) which are likely (to the extent not covered
by insurance) to have a material adverse effect on the
present consolidated financial condition of the Company
and its Consolidated Subsidiaries, taken as a whole, or
materially to impair the Company's ability to perform
its obligations under the Credit Agreement.
5. No authorization, consent, approval, license
or formal exemption from, nor any filing, declaration
or registration with, any Federal, New York or
California court, governmental agency or regulatory
authority including, without limitation, the Securities
and Exchange Commission, or with any securities
exchange located in the United States, is or will be
required in connection with the execution, delivery and
performance by the Company of the Credit Agreement, or
the Borrowings by the Company in the manner and for the
purpose contemplated by the Credit Agreement, except
for informational reports the failure to file which
does not affect the validity of the Credit Agreement,
and except as may be required in the ordinary course to
comply with the affirmative covenants in the Credit
Agreement.
6. To the best of my knowledge, neither the
Company nor any Related Person to the Company has
incurred any liability to the PBGC under Title IV of
ERISA which has not been fully discharged.
7. The Company is not an "investment company" or
a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of
1940, as amended.
8. The Company is not a "holding company", or a
"subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as
amended.
I am a member of the California and New York Bars
and for purposes of this opinion do not hold myself out as
an expert on, nor do I express any opinion as to, the laws
of any jurisdiction other than the laws of the State of
California, the laws of the State of New York, the Federal
laws of the United States and the General Corporation Law of
the State of Delaware.
In rendering the opinion set forth in numbered
paragraph 3 above with respect to the Credit Agreement, I
have assumed, with your approval, the due
authorization, execution and delivery of the Credit
Agreement on the part of all parties to the Credit
Agreement, other than the Company, and the legality,
validity, binding effect on, and enforceability against,
all such other parties of the Credit Agreement. That
opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, (ii) the effect of general
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law, (iii) the
effect of general rules of contract law that limit the
enforceability of provisions requiring indemnification of a
party for liability for its own action or inaction to the
extent the action or inaction involves gross negligence,
recklessness, willful misconduct or unlawful conduct, and
(iv) the possible challenge to the provisions of the Credit
Agreement which provide for a higher rate of interest after
a default in payment of principal or interest under
California Civil Code Section 1671, which renders invalid
liquidated damages provisions in contracts if such
provisions are found to have been unreasonable under the
circumstances existing at the time the contract was made.
With your approval, I have relied, as to certain
matters of fact, on information obtained from public
officials, officers of the Company and its Subsidiaries and
other sources believed by me to be responsible, and I have
assumed that the signatures on all documents examined by me
are genuine, that all documents submitted to me as originals
are authentic and that all documents submitted to me as
copies conform with the originals, which assumptions I have
not independently verified. Also with your approval, I have
relied, as to certain legal matters, on advice of other
lawyers employed by the Company who are more familiar with
such matters.
This opinion is rendered only to the Banks, the
Syndication Agent, the Documentation Agent, the
Administrative Agents and the Facility Agent and is solely
for their benefit in connection with the Credit Agreement.
This opinion may not be relied upon by the Banks, the
Syndication Agent, the Documentation Agent, the
Administrative Agents or the Facility Agent for any other
purpose or by any other person, firm or corporation for any
purpose without my prior written consent.
Very truly yours,
EXHIBIT H
---------
[LETTERHEAD OF CRAVATH, SWAINE & XXXXX, SPECIAL
COUNSEL TO THE AGENTS]
December 18, 1997
Occidental Petroleum Corporation
Credit Agreement dated as of December 18, 1997
Dear Ladies and Gentlemen:
We have acted as special counsel for the Agents
under and as defined in the Credit Agreement dated as of
December 18, 1997 (the "Credit Agreement"), among Occidental
Petroleum Corporation (the "Company"), each bank party
thereto (the "Banks"), Bank of America National Trust and
Savings Association, as syndication agent (in such capacity,
the "Syndication Agent"), Xxxxxx Guaranty Trust Company of
New York, as documentation agent (in such capacity, the
"Documentation Agent"), The Bank of Nova Scotia and The
Chase Manhattan Bank, as administrative agents (in such
capacity, the "Administrative Agents") and The Chase
Manhattan Bank, as facility agent (in such capacity, the
"Facility Agent"). In that connection, we have examined
originals or copies certified or otherwise identified to our
satisfaction of the Credit Agreement and such other
documents as we have deemed necessary for purposes of this
opinion.
Based upon the foregoing, and assuming that the
Credit Agreement has been duly authorized, executed and
delivered by the Company in conformity with all laws
applicable to it, we are of the opinion that the Credit
Agreement constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and other laws affecting creditors' rights generally from
time to time in effect and subject to general principles of
equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity
or at law). With respect to the foregoing opinion, (i)
insofar as provisions contained in the Credit Agreement
provide for indemnification, the enforceability thereof may
be limited by public policy considerations, (ii) the
availability of a decree for specific performance or an
injunction is subject to the discretion of the court
requested to issue any such decree or injunction and (iii)
we express no opinion as to the effect (if any) of any law
of any jurisdiction (other than the State of New York) in
which any Bank is located which limits the rate of interest
that such Bank may charge or collect. We express no opinion
as to Section 10.13 of the Credit Agreement insofar as such
Section relates to the subject matter jurisdiction of the
United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit
Agreement or provides for the waiver of an inconvenient
forum.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York and the Federal laws of the United States
of America.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon for any other purpose or relied upon by or
furnished to any other person without our prior written
consent.
Very truly yours,
To the Banks, the Syndication Agent,
the Documentation Agent,
the Administrative Agents, and
the Facility Agent referred to above,
c/o Bank of America National Trust and
Savings Association,
as Syndication Agent
EXHIBIT I
---------
ADDENDUM
Reference is made to the Credit Agreement dated as of
December 18, 1997 (the "Credit Agreement"), among Occidental
Petroleum Corporation, a Delaware corporation (the
"Company"), each bank party thereto (the "Banks"), Bank of
America National Trust and Savings Association, as
syndication agent (in such capacity, the "Syndication
Agent"), Xxxxxx Guaranty Trust Company of New York, as
documentation agent (in such capacity, the "Documentation
Agent"), The Bank of Nova Scotia and The Chase Manhattan
Bank, as administrative agents (in such capacity, the
"Administrative Agents", with each reference herein to the
to "Administrative Agent" in the singular meaning The Bank
of Nova Scotia) and The Chase Manhattan Bank, as facility
agent (in such capacity, the "Facility Agent"). Capitalized
terms used herein and not defined shall have the meanings
assigned to such terms in the Credit Agreement.
This instrument is submitted by the undersigned
pursuant to Section 10.15 of the Credit Agreement and is an
Addendum as defined in the Credit Agreement.
1. The undersigned hereby agrees to become a party to
the Credit Agreement with the Revolving Credit Commitment
set forth below. The undersigned is [not] listed on
Schedule I to the Credit Agreement.
Revolving Credit Commitment: $
---------
*/ 2. The following information with respect to the
undersigned is supplied for purposes of Schedule II to the
Credit Agreement:
Name of Bank:
---------------------
Address:
---------------------
---------------------
Attention:
---------------------
Tel. No.
---------------------
Telecopier No.
---------------------
3. This instrument may be executed by the undersigned
and accepted by the Company on separate counterparts, each
of which counterparts shall be deemed to be an original and
all of which counterparts, taken together, shall constitute
but one and the same instrument.
----------------------------
*/ If Schedule II to the Credit Agreement already contains
this information, this item need not be completed.
IN WITNESS WHEREOF, the undersigned has caused this
instrument to be executed by its officer thereunto duly
authorized as of the date set forth below.
Date:
--------,------ ---------------------
[Name of Bank]
By
---------------------
Name:
Title:
Accepted:
OCCIDENTAL PETROLEUM CORPORATION
By
-------------------------------
Name:
Title:
Date:
----------, -----
EXHIBIT J
---------
OCCIDENTAL PETROLEUM CORPORATION
$3,200,000,000 SENIOR CREDIT FACILITY
ADMINISTRATIVE DETAILS REPLY FORM
Please complete this form and return to The Bank of Nova Scotia
1) Legal Name of Institution For Signature
Page:
-------------------------------------------------------
2) Name and Title of Individual to Execute Signature
Page:
----------------------------------------------
3) Name of Person(s) to Receive Draft Credit
Agreement:
--------------------------------------------------
4) Address to Send Draft Credit
Agreement:
--------------------------------------------------
5) Contacts Credit Contact Operations Contact Legal Contact
-------------- ------------------ -------------
Name:
-------------- ------------------ -------------
Title:
-------------- ------------------ -------------
Address:
-------------- ------------------ -------------
-------------- ------------------ -------------
Telephone #:
-------------- ------------------ -------------
Facsimile #:
-------------- ------------------ -------------
6) Payment Instructions:
Method of Payment: Fedwire Chips
------------ --------------
Pay to:
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Name of Bank:
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City, State,
Zip:
--------------------------------------------------------
ABA Number: Reference
---------------------------- -----------------
Account Number: Account Name:
---------------------- ---------------------
Attention:
-------------------------------------------------------------
7) The Bank of Nova Scotia Administrative Details:
For payment of principal, fees, or interest to the Bank
of Nova Scotia, please credit our account at the Federal
Reserve Bank of New York, ABA#000000000, for further
credit to Account #0000000 - BNS San Francisco Loan
Servicing Account, Reference: Occidental $3.2 billion.
Primary Account Secondary Account
Administrator Administrator
--------------- -----------------
The Bank of Nova Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxx
Scotia Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Please return this form by fax to The Bank of Nova Scotia
Xxxxxxx Xxxxxxxx, Fax: (000) 000-0000
