EXHIBIT 10.3
U.S. $500,000,000
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of July 14, 2004
Among
HALLIBURTON COMPANY
as Borrower,
THE ISSUING BANKS NAMED HEREIN
as Issuing Banks,
THE BANKS NAMED HEREIN
as Banks,
CITICORP NORTH AMERICA, INC.
as Paying Agent and as Co-Administrative Agent,
JPMORGAN CHASE BANK
as Co-Administrative Agent,
ABN AMRO BANK, N.V.
as Syndication Agent,
and
HSBC BANK USA, NATIONAL ASSOCIATION
and
THE ROYAL BANK OF SCOTLAND PLC
as Co-Documentation Agents
Co-Lead Arrangers:
CITIGROUP GLOBAL MARKETS INC.
and
X.X. XXXXXX SECURITIES INC.
TABLE OF CONTENTS
Page
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Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms.................................................................. 1
Section 1.02 Computation of Time Periods............................................................ 15
Section 1.03 Accounting Terms; GAAP................................................................. 15
Section 1.04 Miscellaneous.......................................................................... 16
Section 1.05 Ratings................................................................................ 16
Article II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
Section 2.01 The Revolving Credit Advances.......................................................... 16
Section 2.02 Making the Revolving Credit Advances................................................... 17
Section 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit..................... 18
Section 2.04 Fees................................................................................... 19
Section 2.05 Reduction of Commitments............................................................... 20
Section 2.06 Repayment of Advances; Required Cash Collateral........................................ 20
Section 2.07 Interest............................................................................... 22
Section 2.08 Additional Interest on Eurodollar Rate Advances........................................ 22
Section 2.09 Interest Rate Determination............................................................ 23
Section 2.10 Optional and Mandatory Prepayments; Required Cash Collateral........................... 24
Section 2.11 Payments and Computations.............................................................. 24
Section 2.12 Increased Costs and Capital Requirements............................................... 25
Section 2.13 Taxes.................................................................................. 26
Section 2.14 Sharing of Payments, Etc............................................................... 28
Section 2.15 Illegality............................................................................. 29
Section 2.16 Conversion of Advances................................................................. 29
Section 2.17 Replacement or Removal of Bank......................................................... 30
Section 2.18 Evidence of Indebtedness............................................................... 30
Article III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Effectiveness.................................................. 31
Section 3.02 Conditions Precedent to Each Revolving Credit Advance and Each Issuance and Renewal of
Each Letter of Credit...................................................................... 34
Section 3.03 Determinations Under Section 3.01...................................................... 35
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower......................................... 35
Article V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants.................................................................. 38
Section 5.02 Negative Covenants..................................................................... 44
Section 5.03 Financial Covenants.................................................................... 50
Article VI
EVENTS OF DEFAULT
Section 6.01 Events of Default...................................................................... 50
Section 6.02 Actions in Respect of the Letters of Credit upon Default............................... 52
Article VII
THE AGENT
Section 7.01 Authorization and Action............................................................... 53
Section 7.02 Agent's Reliance, Etc.................................................................. 53
Section 7.03 The Agent and its Affiliates........................................................... 53
Section 7.04 Bank Credit Decision................................................................... 54
Section 7.05 Indemnification........................................................................ 54
Section 7.06 Successor Agent........................................................................ 54
Section 7.07 Co-Lead Arrangers, Co-Administrative Agents, Syndication Agent, Documentation Agent.... 55
Article VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc........................................................................ 55
Section 8.02 Notices, Etc........................................................................... 55
Section 8.03 No Waiver; Remedies.................................................................... 57
Section 8.04 Expenses and Taxes; Compensation....................................................... 57
Section 8.05 Right of Set-Off....................................................................... 58
Section 8.06 Limitation and Adjustment of Interest.................................................. 58
Section 8.07 Binding Effect......................................................................... 59
Section 8.08 Assignments and Participations......................................................... 59
Section 8.09 Release of Collateral.................................................................. 61
Section 8.10 No Liability of Issuing Banks.......................................................... 62
Section 8.11 Execution in Counterparts.............................................................. 62
Section 8.12 Judgment............................................................................... 62
Section 8.13 Governing Law.......................................................................... 63
Section 8.14 Jurisdiction; Damages.................................................................. 63
Section 8.15 Confidentiality........................................................................ 63
Section 8.16 Patriot Act Notice..................................................................... 64
Section 8.17 Waiver of Jury Trial................................................................... 1
ANNEX
Annex A
SCHEDULES
Schedule I - Commitments
Schedule II - Filing Entities
Schedule III - Bank Information
Schedule IV - Subsidiary Guarantors
Schedule 4.01(f) - Litigation
Schedule 4.01(g) - Asbestos and Silica Non-US Litigation
Schedule 4.01(h) - Domestic Subsidiaries
EXHIBITS
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Issuance and Application for Letter of Credit
Exhibit C-1 - Form of Opinion of Xxxxx X. Xxxxxxxxx
Exhibit C-2 - Form of Opinion of Counsel to the Borrower
Exhibit D - [Intentionally Omitted]
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Pledge Agreement
Exhibit G - Form of Collateral Trust Agreement
Exhibit H - Form of Subsidiary Guaranty
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of July 14, 2004
Halliburton Company, a Delaware corporation (the "Borrower"), the lenders
party hereto and Citicorp North America, Inc. ("CNAI"), as Paying Agent
hereunder, agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the terms
"Borrower" and "CNAI" shall have the meanings set forth above and the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance under Section 2.01 or a Letter
of Credit Advance under Section 2.03 and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each, a "Type" of Advance).
"Affected Bank" has the meaning specified in Section 2.15.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or any Subsidiary of such Person.
"Agent" means CNAI in its capacity as Paying Agent pursuant to Article VII
and any successor in such capacity pursuant to Section 7.06.
"Agent's Account" means the account of the Agent maintained by the Agent
with Citibank at its office at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx
00000, Account No. 00000000, Attention: Halliburton Account Officer, or such
other account as the Agent shall specify in writing to the Banks.
"Agreement" means this 364-Day Revolving Credit Agreement dated as of the
date hereof among the Borrower, the Banks and the Agent, as amended from time to
time in accordance with the terms hereof.
"Applicable Commitment Fee Rate" has the meaning specified in Annex A.
"Applicable Lending Office" means, with respect to each Bank, (i) in the
case of a Base Rate Advance, such Bank's Domestic Lending Office, and (ii) in
the case of a Eurodollar Rate Advance, such Bank's Eurodollar Lending Office.
"Applicable Margin" has the meaning specified in Annex A.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit E.
"Available Amount" of any Letter of Credit means, at any time, the Dollar
Equivalent of the maximum amount available to be drawn under such Letter of
Credit at such time as set forth in Section 2.01(b) (assuming compliance at such
time with all conditions to drawing).
"Bankruptcy Court" means the U.S. Bankruptcy Court for the Western
District of Pennsylvania.
"Banks" means the Issuing Banks and the other Banks party hereto from time
to time as lenders, including each Eligible Assignee that becomes a party hereto
pursuant to Section 8.08(a), (b) and (d).
"Base Rate" means, for any period, a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/8 of 1% or, if there is no
nearest 1/8 of 1%, to the next higher 1/8 of 1%) of (i)1/2 of one percent
per annum plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average (adjusted to the
basis of a year of 360 days) being determined weekly on each Monday (or,
if such day is not a Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous Friday by Citibank on the
basis of such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations for such
rates received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages specified during
such three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month Dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of Citibank in
the United States; and
(c) the sum of 1/2 of one percent per annum plus the Federal Funds
Rate in effect from time to time.
"Base Rate Advance" means an Advance which bears interest as provided in
Section 2.07(a).
"Borrowing" means a borrowing consisting of Advances of the same Type made
on the same day by the Banks pursuant to Section 2.01 and, if such Advances are
Eurodollar Rate Advances, having Interest Periods of the same duration.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day relates
to any Eurodollar Rate Advance, on which dealings in Dollar deposits are carried
on in the London interbank market.
"Chapter 11 Cases" means the cases filed by the Filing Entities under
Chapter 11 of the Bankruptcy Code.
"Citibank" means Citibank, N.A., a national banking association.
"Co-Administrative Agents" means CNAI and JPMCB solely in their capacities
as co-administrative agents under the Agreement.
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"Co-Documentation Agents" means each of HSBC Bank USA, National
Association and The Royal Bank of Scotland plc, solely in its capacity as
co-documentation agent under the Agreement.
"Co-Lead Arrangers" means Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code, and the regulations promulgated and rulings issued
thereunder, in each case as now or hereafter in effect, and any reference to any
statutory provision shall be deemed to be a reference to any successor provision
or provisions.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured Holders.
"Collateral Agent" means Citibank in its capacity as Collateral Agent
under the Collateral Trust Agreement, together with its successors in interest
and permitted assigns.
"Collateral Documents" means the Pledge Agreement, the Collateral Trust
Agreement and any other agreement now or hereafter in effect that creates or
purports to create a Lien in favor of the Collateral Agent for the benefit of
the Secured Holders.
"Collateral Release Date" means the date on which each of the following
statements shall be true and correct, and the Borrower shall have so certified
to the Agent in writing:
(i) The Exit Date has occurred;
(ii) There exists no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental instrumentality that (i) could reasonably be expected to have
a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of the
Borrower and its subsidiaries on a consolidated basis other than the
Disclosed Litigation (the "Pre-Closing Information") or (ii) purports to
affect the legality, validity or enforceability of the Borrower's
Obligations, or the rights and remedies of any of the Banks, relating to
the Revolving Credit Facility and the Loan Documents, and there shall have
been no material adverse change in the status, or financial effect on the
Borrower and its subsidiaries on a consolidated basis, of the Disclosed
Litigation from that described in the Pre-Closing Information;
(iii) The long-term senior unsecured debt of the Borrower has been
recently confirmed by letter at BBB or higher (stable outlook) by S&P and
Baa2 or higher (stable outlook) by Xxxxx'x;
(iv) There has occurred no material adverse change (which term
shall not be deemed to refer to the commencement of the Chapter 11 Cases)
since December 31, 2002 in the business, condition (financial or
otherwise), operations, performance, properties or prospects of the
Borrower and its subsidiaries on a consolidated basis, except as disclosed
in the Borrower's report on Form 10-Q filing with the Securities and
Exchange Commission for the fiscal quarter ended June 30, 2003 and except
for the accounting charges taken and to be taken by the Borrower directly
in connection with the Settlement Payments; and
(v) There exists no Default or Event of Default under any of the
Loan Documents.
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"Collateral Trust Agreement" has the meaning specified in Section
3.01(d)(iv).
"Commitment Fee" has the meaning specified in Section 2.04(a).
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Consolidated Debt" means at any time the Debt of the Borrower and its
consolidated subsidiaries calculated on a consolidated basis as of such time,
determined in accordance with GAAP.
"Consolidated Debt to Total Consolidated Capitalization Ratio" means, as
of any date of calculation, the ratio of the Borrower's Consolidated Debt
outstanding on such date to the sum of (i) Consolidated Debt and (ii)
Consolidated Net Worth outstanding on such date; provided, that during the
period from October 31, 2003 until the time that the Borrower records the equity
component of the Settlement Payments, changes to Net Asbestos and Silica
Liability and any related reduction in equity as a result of required accounting
adjustments relating to the Settlement Payments, including changes related to
insurance coverage, shall be disregarded for purposes of calculating the
Consolidated Debt to Total Consolidated Capitalization Ratio.
"Consolidated EBITDA" means, with reference to any period of time, the
EBITDA of the Borrower and its consolidated subsidiaries calculated on a
consolidated basis for such period, determined in accordance with GAAP.
"Consolidated Interest Expense" means, with reference to any period, the
Interest Expense of the Borrower and its consolidated subsidiaries calculated on
a consolidated basis for such period, determined in accordance with GAAP.
"Consolidated Net Worth" means at any time the consolidated stockholders'
equity of the Borrower and its consolidated subsidiaries calculated on a
consolidated basis as of such time (excluding treasury stock), determined in
accordance with GAAP and excluding any aggregate charges for asbestos litigation
claims.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08, 2.14 or 2.15.
"Convertible Notes" means the 3-1/8% Convertible Senior Notes of the
Borrower due July 15, 2023, issued pursuant to the Convertible Notes Indenture.
"Convertible Notes Indenture" means the Indenture dated as of June 30,
2003 between the Borrower, as issuer and JPMCB, as Trustee.
"Debt" of any Person means (i) Indebtedness of such Person, plus (ii)
obligations of such Person under direct third party guaranties for borrowed
money, plus (iii) the aggregate face amount of all outstanding letters of credit
in respect of which such Person has any reimbursement obligation (other than
Performance Letters of Credit), plus (iv) 50% of the aggregate face amount of
all outstanding Performance Letters of Credit issued of such Person, plus (v)
the Net Asbestos and Silica Liability, minus (vi) any Unrestricted Cash.
"Default" means any event or condition which with notice or lapse of time
or both would, unless cured or waived, become an Event of Default.
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"DIP Facility" means the Revolving Credit Agreement among DII Industries,
LLC and each other borrower named therein and the Borrower, as lender, as
amended from time to time.
"Disclosed Litigation" means the litigation described in the information
provided by or on behalf of the Borrower to the Agent for disclosure to the
Banks prior to the Effective Date of this Agreement.
"Disclosure Statement" means the disclosure statement, dated as of
September 18, 2003, with respect to the Plan of Reorganization filed in
connection with the Chapter 11 Cases as the same may be supplemented or restated
prior to the Effective Date.
"Dollar Equivalent" means, on any date, (i) in relation to an amount
denominated in a currency other than Dollars, the equivalent in Dollars
determined by using the quoted spot rate at which the Agent's principal office
in London offers to exchange Dollars for such currency in London prior to 4:00
P.M. (London time) on such date and (ii) in relation to an amount denominated in
Dollars, such amount.
"Dollars" and "$" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto, in the Assignment and Acceptance pursuant to which it became
a Bank, or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
"EBITDA" means (a) Net Income plus (b) to the extent deducted in
determining Net Income, (i) Interest Expense, (ii) taxes, and (iii) depreciation
and amortization minus (c) to the extent added in determining Net Income,
extraordinary gains (including gains from assets sales) for such period, plus
(d) to the extent recognized in determining Net Income, extraordinary,
non-recurring losses (excluding asbestos charges) for such period. EBITDA shall
be calculated on a rolling four quarters basis using the financial results for
the four-quarter period ending on the date as of which the calculation is made.
"Effective Date" means has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) any Bank, (ii) any Affiliate of any Bank and
(iii) with the consent of the Agent (which consent shall not be unreasonably
withheld) and, so long as no Event of Default under Section 6.01(a) or 6.01(e)
shall have occurred and be continuing, the Borrower (which consent shall not be
unreasonably withheld), any other Person not covered by clause (i) or (ii) of
this definition; provided, however, that neither the Borrower nor any Affiliate
of the Borrower shall be an Eligible Assignee.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
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"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Borrower's controlled group, or under common control with the
Borrower, within the meaning of Section 414(a) or (b) of the Internal Revenue
Code, and, for purposes of Section 412 of the Internal Revenue Code, Section
414(m) of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan; (g)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC
of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan; provided, however, that in no event shall the filing of the
Chapter 11 Cases be an ERISA Event.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto, in the Assignment and Acceptance pursuant to which it became
a Bank (or, if no such office is specified, its Domestic Lending Office), or
such other office of such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum, if such
rate per annum is not such a multiple) equal to the rate per annum at which
deposits in Dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to Citibank's Eurodollar Rate Advance comprising part
of such Borrowing and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest Period
for all Eurodollar Rate Advances comprising part of the same borrowing means the
reserve percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage shall be
so applicable) under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other
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marginal reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Dispositions" means (i) dispositions of assets in the ordinary
course of business, (ii) dividends and distributions permitted by Section
5.02(c), (iii) dispositions to the Borrower or a Subsidiary of the Borrower,
(iv) dispositions constituting investments and capital contributions, (v)
dispositions of any fixed or capital asset pursuant to a sale/leaseback
transaction which is consummated within 180 days of the Borrower or such
Subsidiary acquiring or completing the construction of such asset and (vi) any
Securitization Transaction.
"Existing Indebtedness" means Indebtedness of each Loan Party and its
Subsidiaries outstanding immediately before the Effective Date.
"Exit Date" means the date on which (i) the Plan of Reorganization shall
have been confirmed and (ii) the Order Entry shall have occurred.
"Federal Funds Rate" means, for any day, a fluctuating interest rate per
annum equal for such day to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected by
it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereof.
"Filing Entities" means the Borrower's Subsidiaries listed on Schedule II
hereto.
"Financial Statements" means the consolidated balance sheet and other
financial statements of the Borrower and its consolidated subsidiaries dated
December 31, 2003 included in the Borrower's Form 10-K/A filing with the SEC for
the fiscal year ended December 31, 2003.
"Foreign Currency" means any lawful currency (other than Dollars) that is
freely transferable or convertible into Dollars.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Guaranty Supplement" has the meaning specified in the Subsidiary
Guaranty.
"HESI" means Halliburton Energy Services, Inc., a Delaware corporation.
"Indebtedness" means, for any Person, (a) its liabilities for borrowed
money or the deferred purchase price of property or services (other than current
accounts and salaries payable or accrued in the ordinary course of business),
(b) obligations of such Person for borrowed money evidenced by bonds,
debentures, notes or other similar instruments and (c) all Indebtedness of
others the payment, purchase or other acquisition or obligation of which such
Person has assumed, or the payment, purchase or other acquisition or obligation
of which such Person has otherwise become directly or contingently liable for.
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"Indemnified Costs" has the meaning specified in Section 7.05.
"Indemnified Party" has the meaning specified in Section 8.04(c).
"Initial Extension of Credit" means the earlier to occur of the initial
Revolving Credit Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Interest Charge Coverage Ratio" means, as of the end of any fiscal
quarter, the ratio of (a) Consolidated EBITDA for the four-fiscal quarter period
then ended (excluding, for each quarter through and including the quarter ending
December 31, 2003, any non-cash charges related to the proposed global asbestos
settlement contemplated in the Borrower's press release dated December 18, 2002)
to (b) Consolidated Interest Expense (calculated in accordance with GAAP) for
the four-fiscal quarter period then ended.
"Interest Expense" means for any period, interest expense, whether
expensed or capitalized, paid, accrued or scheduled to be paid or accrued during
such period, determined in accordance with GAAP, without duplication.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months (or, as to
any Interest Period, such other period as the Borrower and each of the Banks may
agree to for such Interest Period), in each case as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period (or, as to
any Interest Period, at such other time as the Borrower and the Banks may agree
to for such Interest Period), select; provided, however, that:
(i) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of
the calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month in which
it would have ended if there were a numerically corresponding day in such
calendar month; and
(iv) the Borrower may not select an Interest Period for any Advance
if the last day of such Interest Period would be later than the date on
which the Advances are then payable in full or if any Event of Default
under Section 6.01(a) shall have occurred and be continuing at the time of
selection.
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"Issuing Bank" means each of Citibank, JPMCB, HSBC and ABN AMRO Bank, N.V.
and any of their respective Affiliates, in their capacities as initial issuing
banks, and any Eligible Assignee to which a Letter of Credit Commitment has been
assigned pursuant to Section 8.08 so long as each such Eligible Assignee
expressly agrees to perform in accordance with their terms all the obligations
that by the terms of the Agreement are required to be performed by it as an
Issuing Bank and notifies the Agent of its Applicable Lending Office and the
amount of its Letter of Credit Commitment (which information shall be recorded
by the Agent in the Register), for so long as such initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment.
"Joint Venture Debt" has the meaning specified in Section 5.02(a)(x)(x).
"JPMCB" means JPMorgan Chase Bank, a New York banking corporation.
"JV Subsidiary" means each Subsidiary of the Borrower (a) that, at any
time, directly holds an Equity Interest in any joint venture (not a Subsidiary)
and (b) that has no other material assets.
"L/C Cash Collateral Account" means the l/c cash collateral deposit
account, Account No. _____________, with Citibank, as securities intermediary
and depository bank, at its office at Xxx Xxxxx Xxx, 0xx Xxxxx, Xxx Xxxxxx,
Xxxxxxxx 00000, in the name of the Borrower but under the sole control and
dominion of the Agent and subject to the terms of this Agreement.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(ii)(A).
"LC Agent" means CNAI, in its capacity as agent under Master LC Facility
Agreement.
"XX Xxxxx" means the Banks under and as defined in the Master LC Facility
Agreement.
"Letter of Credit" has the meaning set forth in Section 2.01(b).
"Letter of Credit Advance" means an Advance made by any Issuing Bank or
any Bank pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section 2.03(a).
"Letter of Credit Commitment" of any Issuing Bank means, at any time, the
amount set opposite such Issuing Bank's name on Schedule I under the heading
"Letter of Credit Commitments" or as reflected for such Issuing Bank in the
relevant Assignment and Acceptance to which it is a party, as such amount may be
terminated, reduced or increased pursuant to Section 2.05, Section 6.01 or
Section 8.08.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor, a
statutory deemed trust and any easement, right of way or other encumbrance on
title to real property; provided, however, that for the avoidance of doubt, the
interest of a Person as owner or lessor under charters or leases of property and
the rights of setoff of banks shall not constitute a "Lien" on or in respect of
the relevant property.
"Loan Documents" means this Agreement, the Notes, the Subsidiary Guaranty,
and the Collateral Documents.
"Loan Party" means, (i) at any time prior the Collateral Release Date,
each of the Borrower and each Subsidiary Guarantor and (ii) from and after the
Collateral Release Date, the Borrower.
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"March 2004 10-Q" means the Borrower's Form 10-Q filing with the SEC for
the quarter ended on March 31, 2004.
"Master LC Facility Agreement" means the senior secured master letter of
credit facility agreement, dated as of October 31, 2003, among the Borrower, the
Borrower's subsidiaries party thereto, the banks party thereto and CNAI, as
agent, as amended from time to time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries, taken as a whole, (b) the
rights and remedies of the Agent or any Bank under any Loan Document or (c) the
ability of the Borrower and any material Subsidiary which is a Loan Party to
perform its Obligations under any Loan Document to which it is or is to be a
party; provided, however, the filing of the Chapter 11 Cases shall not be deemed
to constitute a Material Adverse Effect.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to its
debt ratings business.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Net Asbestos and Silica Liability" means (a) estimated asbestos
litigation claims and silica litigation claims minus (b) estimated insurance for
asbestos litigation claims and silica litigation claims, in each case as
reflected in the financial statements most recently delivered pursuant to
Section 5.01(d)(i) and 5.01(d)(ii) (or, prior to such date, financial statements
as filed in the March 2004 10-Q), to the extent that such liability is greater
than zero.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any Collateral, the aggregate amount of cash received from
time to time (whether as initial consideration or through payment or disposition
of deferred consideration) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and discounts,
legal fees, finder's fees and other similar fees and commissions and (b) the
amount of taxes payable in connection with or as a result of such transaction,
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or any Loan Party or any Affiliate of any Loan Party
and are properly attributable to such transaction or to the asset that is the
subject thereof.
"Net Income" means, for any period, the Borrower's net income for such
period, as determined in accordance with GAAP.
"Note" means a promissory note of the Borrower payable to the order of any
Bank, in substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Bank resulting from the Advances owing to
such Bank.
"Notes Agreements" has the meaning set forth in the Pledge Agreement.
"Notice of Issuance and Application for Letter of Credit" has the meaning
specified in Section 2.03(a).
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"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Obligation" means, with respect to any Person, any payment, performance
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to reimburse
any amount in respect of any of the foregoing that any Bank, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"Order Entry" means the date on which (i) a final, non-appealable order
shall have been entered in the Chapter 11 Cases approving the establishment of a
trust pursuant to Section 524(g) of the Bankruptcy Code in order to dispose of
the present asbestos claims and future demands against any of the Borrower's
subsidiaries identified on Schedule 4.01(h) hereto arising out of exposure to
asbestos and/or asbestos-related products prior to the date of entry of such
order, which order (A) enjoins the assertion of such asbestos claims against the
Borrower and such subsidiaries, (B) contains an injunction which is reasonably
satisfactory in scope, nature and extent to the Co-Lead Arrangers and (C)
incorporates the terms of the Plan of Reorganization and (ii) a final,
non-appealable order reasonably satisfactory to the Co-Lead Arrangers shall have
been entered in the Chapter 11 Cases approving the establishment of a trust
pursuant to Section 105(a) of the Bankruptcy Code in order to dispose of the
present silica claims and future demands against any of the Borrower's
subsidiaries identified on Schedule 4.01(h) hereto arising out of exposure to
silica and/or silica-related products prior to the date of entry of such order,
which order (A) enjoins the assertion of such silica claims against the Borrower
and such subsidiaries, (B) contains an injunction which is reasonably
satisfactory in scope, nature and extent to the Co-Lead Arrangers and (C)
incorporates the terms of the Plan of Reorganization.
"Other Taxes" has the meaning specified in Section 2.13(b).
"Patriot Act" shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56, signed into law October 26, 2001.
"Performance Letter of Credit" means a letter of credit qualifying as a
"performance-based standby letter of credit" under 12 C.F.R. Part 3, Appendix A,
Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced
or, if commenced, have been stayed: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid under
Section 5.01(c); (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations that individually or
together with all other Permitted Liens outstanding on any date of determination
do not materially adversely affect the use of the property to which they relate;
(c) pledges or deposits to secure obligations under workers' compensation laws
or similar legislation or to secure public or statutory obligations; (d)
easements, rights of way and other encumbrances on title to real property that
do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes;
(e) Liens to secure the performance of bids, trade
- 11 -
contracts (other than for Indebtedness), leases (including permitted capitalized
leases), statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
and (f) Liens with respect to joint ventures or other similar arrangements to
secure the obligations of one joint venture party to another, provided that such
Liens do not secure Indebtedness.
"Permitted Non-Recourse Indebtedness" means Indebtedness and other
obligations of the Borrower or any Subsidiary incurred in connection with the
acquisition or construction by the Borrower or such Subsidiary of any property
with respect to which:
(a) the holders of such Indebtedness and other obligations agree
that they will look solely to the property so acquired or constructed and
securing such Indebtedness and other obligations, and neither the Borrower
nor any Subsidiary (i) provides any direct or indirect credit support,
including any undertaking, agreement or instrument that would constitute
Indebtedness or (ii) is directly or indirectly liable for such
Indebtedness; and
(b) no default with respect to such Indebtedness or obligations
would cause, or permit (after notice or passage of time or otherwise),
according to the terms thereof, any holder (or any representative of any
such holder) of any other Indebtedness of the Borrower or such Subsidiary
to declare a default on such Indebtedness or cause the payment,
repurchase, redemption, defeasance or other acquisition or retirement for
value thereof to be accelerated or payable prior to any scheduled
principal payment, scheduled sinking fund or maturity.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof or any trustee, receiver, custodian or similar official.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Plan of Reorganization" means the plan of reorganization in the form
attached as Exhibit B to the Disclosure Statement.
"Pledge Agreement" has the meaning specified in Section 3.01(d)(ii).
"Pledged Equity" has the meaning specified in the Pledge Agreement.
"Pre-Closing Information" has the meaning specified in clause (ii) of the
definition of "Collateral Release Date".
"Pro Rata Share" of any amount means, with respect to any Bank at any
time, such amount times a fraction the numerator of which is the amount of such
Bank's Revolving Credit Commitment at such time (or, if the Commitments shall
have been terminated pursuant to Section 2.05 or 6.01, such Revolving Credit
Commitment as in effect immediately prior to such termination) and the
denominator of which is the Revolving Credit Facility at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the
Revolving Credit Facility as in effect immediately prior to such termination).
"Project Financing" means Indebtedness and other obligations that (a) are
incurred by a Project Finance Subsidiary, (b) are secured by a Lien of the type
permitted under clause (v) of Section 5.02(a) and (c) constitute Permitted
Non-Recourse Indebtedness (other than recourse to the assets of, and Equity
Interests in, any Project Finance Subsidiary).
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"Project Finance Subsidiary" means a Subsidiary that is a special-purpose
entity created solely to (i) construct or acquire any asset or project that will
be or is financed solely with Project Financing for such asset or project and
related equity investments in, loans to, or capital contributions in, such
Subsidiary that are not prohibited hereby and/or (ii) own an interest in any
such asset or project.
"Property" or "asset" (in each case, whether or not capitalized) means any
interest in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.
"Ratings Event" means at any time (a) the senior unsecured long-term debt
of the Borrower (i) is rated lower than BBB- by S&P or (ii) is rated lower than
Baa3 by Moody's or (b) either S&P or Moody's ceases to rate such senior
unsecured long-term debt.
"Receivables Subsidiary" means (i) Oilfield Services Receivables
Corporation, a Delaware corporation, and any other transferor under the
transaction referred to in Section 5.02(a)(iii), including any replacement
transaction and (ii) any other special purpose entity created in connection with
a Securitization Transaction.
"Reduced Amounts" has the meaning specified in Section 2.01(c).
"Register" has the meaning specified in Section 8.08(c).
"Regulation U" means Regulation U of the Federal Reserve Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Required Banks" means at any time Banks owed or holding at least a
majority in interest of the sum of (i) the aggregate principal amount of the
Advances outstanding at such time; (ii) the Available Amount of all Letters of
Credit outstanding at such time (calculated by reference to each Bank's Pro Rata
Share) and (iii) the aggregate Unused Revolving Credit Commitments at such time.
"Responsible Officer" means each of the chairman and chief executive
officer, the president, the chief financial officer, the treasurer, the
secretary or any vice president (whether or not further described by other
terms, such as, for example, senior vice president or vice president-operations)
of the Borrower or, if any such office is vacant, any Person performing any of
the functions of such office.
"Revolving Credit Advance" means an Advance by a Bank to the Borrower
pursuant to Section 2.01 and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Banks.
"Revolving Credit Commitment" means, with respect to any Bank at any time,
the amount set forth opposite such Bank's name on Schedule I hereto under the
caption "Revolving Credit Commitment" or, if such Bank has entered into one or
more Assignment and Acceptances, set forth for such Bank in the Register
maintained by the Agent pursuant to Section 8.08(c) as such Bank's "Revolving
Credit Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Banks' Revolving Credit Commitments at such time.
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"S&P" means Standard & Poor's Ratings Service Group, a division of The
XxXxxx-Xxxx Companies, Inc. on the date hereof, or any successor to its debt
ratings business.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Securitization Transaction" means any transfer by the Borrower or any
Subsidiary of accounts receivable or interests therein (including, without
limitation, all collateral securing such accounts receivable, all contracts and
guarantees or other obligations in respect of such accounts receivable, the
proceeds of such receivables and other assets which are customarily transferred,
or in respect of which security interests are customarily granted, in connection
with asset securitizations involving accounts receivable), or grant of a
security interest therein, (a) to a trust, in part, directly or indirectly, by
the incurrence or issuance by the transferee or any successor transferee of
Indebtedness or securities that are to receive payments from, or that represent
interests in, the cash flow derived from such accounts receivable or interests,
or (b) directly to one or more investors or other purchasers.
"Secured Holders" has the meaning specified in the Collateral Trust
Agreement.
"Senior Unsecured Credit Facility Agreement" means the credit agreement
dated as of November 4, 2003 among the Borrower, the lenders party thereto,
CNAI, as administrative agent, JPMCB, as syndication agent and ABN AMRO Bank,
N.V., as documentation agent.
"Settlement Payments" means payments by the Borrower of approximately
$2.775 billion to asbestos and silica claimants as described in the Disclosure
Statement.
"Shared Collateral Account" means the account of the Borrower with
Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
795451, Attention: Halliburton Account Officer, in the name of the Collateral
Agent and under the sole dominion and control of the Collateral Agent and
subject to the terms of the Pledge Agreement and the Collateral Trust Agreement.
"Shared Collateral Obligations" has the meaning specified in the
Collateral Trust Agreement.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or
any ERISA Affiliate and no Person other than the Borrower and the ERISA
Affiliates or (b) was so maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Stock Agreement" means the Stock Agreement among DII Industries, LLC,
HESI and the Borrower, as amended from time to time.
"Subsidiary" of any Person means any corporation (including a business
trust), partnership, joint stock company, trust, unincorporated association,
joint venture or other entity of which more than 50% of the outstanding capital
stock, securities or other ownership interests having ordinary voting power to
elect directors of such corporation or, in the case of any other entity, others
performing similar functions (irrespective of whether or not at the time capital
stock, securities or other ownership interests of any other class or classes of
such corporation or such other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person or
by one or more other Subsidiaries of such Person.
"Subsidiary Guarantor" means, during such time as such Subsidiary is a
party to the Subsidiary Guaranty or a Guaranty Supplement, each of the
Subsidiaries of the Borrower listed on Schedule IV
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hereto and each other Subsidiary of the Borrower that shall be required to
execute and deliver a Guaranty Supplement pursuant to Section 5.01(i) and each
other Subsidiary of the Borrower which voluntarily executes and delivers a
Guaranty Supplement.
"Subsidiary Guaranty" has the meaning specified in Section 3.01(d)(iii).
"Syndication Agent" means ABN Amro Bank, N.V., solely in its capacity as
syndication agent under the Agreement.
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means July 13, 2005, or the earlier date of termination
in whole of the Commitments pursuant to Section 2.05 or Section 6.01.
"Three-Year Agent" means CNAI, in its capacity as agent under the
Three-Year Revolving Credit Agreement.
"Three-Year Banks" means the Banks under and as defined in the Three-Year
Revolving Credit Agreement.
"Three-Year Revolving Credit Agreement" means the 3-Year Revolving Credit
Agreement, dated as of October 31, 2003, among the Borrower, the banks party
thereto, and CNAI, as agent, as amended from time to time.
"Transaction" means the consummation of the Plan of Reorganization, the
creation of the Trusts, the Settlement Payments and related transactions.
"Trusts" means the trusts to be organized pursuant to Section 524(g) and
105(a) of the Bankruptcy Code as provided in the Plan of Reorganization.
"Type" has the meaning specified in the definition of Revolving Credit
Advance.
"Unrestricted Cash" means cash not subject to a security interest granted
by a Person to a third party (other than the Collateral Agent for the benefit of
the Secured Holders). For the avoidance of doubt, contractual and statutory
offset rights are not considered to be security interests for the purposes of
this definition.
"Unused Revolving Credit Commitment" means, with respect to any Bank at
any time, (a) such Bank's Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Revolving Credit Advances and
Letter of Credit Advances made by such Bank and outstanding at such time plus
(ii) such Bank's Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Banks pursuant to
Section 2.03(c) and outstanding at such time.
Section 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.03 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Agent that the Borrower requests an amendment
- 15 -
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Agent notifies the Borrower that the Required Banks request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
Section 1.04 Miscellaneous. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to Articles and Sections
of and Schedules and Exhibits to this Agreement, unless otherwise specified.
Section 1.05 Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or
(in the absence of such announcement or publication) the effective date of, any
change in such rating. In the event the standards for any rating by Moody's or
S&P are revised, or such rating is designated differently (such as by changing
letter designations to numerical designations), then the references herein to
such rating shall be deemed to refer to the revised or redesignated rating for
which the standards are closest to, but not lower than, the standards at the
date hereof for the rating which has been revised or redesignated, all as
determined by the Required Banks in good faith. Long-term debt supported by a
letter of credit, guaranty or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Xxxxx'x or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of any Person, the lowest such rating shall be applicable for purposes
hereof. For example, if Xxxxx'x rates some senior unsecured long-term debt of
the Borrower Baa1 and other such debt of the Borrower Baa2, the senior unsecured
long-term debt of the Borrower shall be deemed to be rated Baa2 by Xxxxx'x.
ARTICLE II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
Section 2.01 The Revolving Credit Advances. (a) Each Bank severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances in Dollars to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed such Bank's Unused Revolving Credit Commitment
(and subject to Section 2.01(c)) at such time; provided that no Revolving Credit
Advance shall be required to be made, except as a part of a Revolving Credit
Borrowing that is in an aggregate amount not less than $10,000,000 in the case
of Eurodollar Rate Advances and $5,000,000 in the case of Base Rate Advances and
in an integral multiple of $1,000,000, and each Revolving Credit Borrowing shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Banks ratably according to their respective Revolving Credit Commitments.
Within the limits of each Bank's Unused Revolving Credit Commitment (and subject
to Section 2.01(c)) in effect from time to time, the Borrower may borrow, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01. The Borrower
agrees to give a Notice of Revolving Credit Borrowing in accordance with Section
2.02(a) as to each Revolving Credit Advance.
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (collectively, the
"Letters of Credit", and each a "Letter of Credit") for the account of the
Borrower (such issuance, and any funding of a draw thereunder, to be made by the
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Issuing Banks in reliance on the agreements of the other Banks pursuant to
Section 2.03) from time to time on any Business Day during the period from the
Effective Date until 10 days prior to the Termination Date in an aggregate
Available Amount (i) for all Letters of Credit issued by the Issuing Banks not
to exceed at any time the lesser of (A) the aggregate Letter of Credit
Commitments at such time and (B) the Letter of Credit Commitment of such Issuing
Bank at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the Banks (and
subject to Section 2.01(c)) at such time. No Letters of Credit shall have
expiration dates later than 10 Business Days prior to the Termination Date.
Within the limits referred to above, the Borrower may request the issuance of
Letters of Credit under this Section 2.01(b), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.03(a) and
request the issuance of additional Letters of Credit under this Section 2.01(b).
(c) Availability of Unused Commitments. Prior to the Collateral
Release Date, in the event of any issuance after the Effective Date of Future
Notes (as defined in the Collateral Trust Agreement), (i) the aggregate Unused
Revolving Credit Commitments of the Banks available for the making of Revolving
Credit Advances and the issuance of Letters of Credit shall be reduced dollar
for dollar by an amount, if positive (the "Reduced Amount"), equal to the
aggregate outstanding principal amount of each such issuance of Future Notes,
less the aggregate outstanding principal amount of all Existing Notes (as
defined in the Collateral Trust Agreement) which have been repaid, redeemed or
defeased, (ii) the Revolving Credit Advances to be made by any Bank at any time
under Section 2.01(a) shall not exceed such Bank's Unused Revolving Credit
Commitment at such time, minus such Bank's Pro Rata Share of the aggregate
Reduced Amounts at such time and (iii) no Letter of Credit may be issued at any
time under Section 2.01(b) with an Available Amount that exceeds the aggregate
Unused Revolving Credit Commitments at such time, minus the aggregate Reduced
Amounts at such time. Upon the occurrence of the Collateral Release Date, the
Reduced Amount shall no longer have any effect on the availability of the Unused
Revolving Credit Commitments described in the immediately preceding sentence.
Section 2.02 Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice in the form of Exhibit B-1 (a "Notice
of Revolving Credit Borrowing"), given not later than 11:00 A.M. (New York City
time) (i) on the date of a proposed Revolving Credit Borrowing comprised of Base
Rate Advances and (ii) on the third Business Day prior to the date of a proposed
Revolving Credit Borrowing comprised of Eurodollar Rate Advances, by the
Borrower to the Agent, which shall give to each Bank prompt notice thereof by
facsimile. Each Notice of Revolving Credit Borrowing shall be by facsimile,
confirmed immediately in writing, in substantially the form of Exhibit B-1,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Revolving Credit Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv)
if such Revolving Credit Borrowing is to be comprised of Eurodollar Rate
Advances, the initial Interest Period for each such Revolving Credit Advance.
Each Bank shall, before 2:00 p.m. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its Applicable
Lending Office to the Agent at its address referred to in Section 8.02, in same
day funds, such Bank's ratable portion of such Revolving Credit Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower at the Agent's aforesaid address.
(b) Notwithstanding any other provision in this Agreement, at no
time shall there be more than ten Revolving Credit Borrowings outstanding;
provided that for purposes of the limitation set forth in this sentence, all
Revolving Credit Borrowings consisting of Base Rate Advances shall constitute a
single Revolving Credit Borrowing.
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(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Credit Borrowing that
the related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Bank against any
loss, cost or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Revolving Credit Advance to be made by such Bank as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Bank prior
to the time of any Revolving Credit Borrowing that such Bank will not make
available to the Agent such Bank's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Bank has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such ratable portion
available to the Agent, such Bank and the Borrower severally agree to repay to
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Revolving Credit
Advances comprising such Revolving Credit Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
Revolving Credit Advance as part of such Revolving Credit Borrowing for all
purposes.
(e) The failure of any Bank to make the Revolving Credit Advance
to be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Bank of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Revolving Credit
Advance to be made by such other Bank on the date of any Revolving Credit
Borrowing.
Section 2.03 Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice and application, given not later than 11:00 A.M. (New York City time) on
the third Business Day (or a later day, if acceptable to the relevant Issuing
Bank in its sole discretion, but in no event later than the first Business Day)
prior to the date of the proposed issuance of such Letter of Credit, by the
Borrower to any Issuing Bank, which shall give to the Agent prompt notice
thereof by telex or facsimile. Each such notice of issuance of a Letter of
Credit (a "Notice of Issuance and Application for Letter of Credit") shall be by
telephone, confirmed immediately in writing, or telex or facsimile, in the form
of Exhibit B-2, specifying therein the requested (A) date of such issuance
(which shall be a Business Day), (B) Available Amount of such Letter of Credit,
(C) expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit, (E) form of such Letter of Credit and (F)
the requested currency of such Letter of Credit, if other than Dollars. If the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion, such Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 8.02 or as otherwise agreed with
the Borrower in connection with such issuance; provided that no Issuing Bank
shall be obligated to issue any Letter of Credit in a Foreign Currency, but each
Issuing Bank shall be permitted to do so in its sole discretion if requested by
the Borrower; provided, further that no Issuing Bank shall be required to issue
any Letter of Credit if after giving effect to such issuance the aggregate face
amount of all outstanding letters of credit issued under this Agreement and the
Three-Year Revolving Credit
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Agreement by such Issuing Bank would exceed $250,000,000, unless such Issuing
Bank shall have otherwise agreed.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the
Agent on the first Business Day of each week a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the previous week and drawings during such week under all Letters of
Credit issued by such Issuing Bank, (B) to the Agent on the first Business Day
of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued by such Issuing Bank during the preceding month and
drawings during such month under all Letters of Credit issued by such Issuing
Bank and (C) to the Agent on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the Dollar Equivalent amount of such draft.
Upon written demand by any Issuing Bank with an outstanding Letter of Credit
Advance, with a copy of such demand to the Agent, each Bank shall purchase from
such Issuing Bank, and such Issuing Bank shall sell and assign to each such
Bank, such Bank's Pro Rata Share of such outstanding Letter of Credit Advance as
of the date of such purchase, by making available for the account of its
Applicable Lending Office to the Agent for the account of such Issuing Bank, by
deposit to the Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Bank. Promptly after receipt thereof, the Agent shall
transfer such funds to such Issuing Bank. The Borrower hereby agrees to each
such sale and assignment. Each Bank agrees to purchase its Pro Rata Share of an
outstanding Letter of Credit Advance on (i) the Business Day on which demand
therefor is made by the Issuing Bank which made such Advance, provided that
notice of such demand is given not later than 11:00 A.M. (New York City time) on
such Business Day, or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by an
Issuing Bank to any Bank of a portion of a Letter of Credit Advance, such
Issuing Bank represents and warrants to such other Bank that such Issuing Bank
is the legal and beneficial owner of such interest being assigned by it, free
and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Bank shall not
have so made the amount of such Letter of Credit Advance available to the Agent,
such Bank agrees to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by Issuing Bank
until the date such amount is paid to the Agent, at the Federal Funds Rate for
its account or the account of Issuing Bank, as applicable. If such Bank shall
pay to the Agent such amount for the account of Issuing Bank on any Business
Day, such amount so paid in respect of principal shall constitute a Letter of
Credit Advance made by such Bank on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Letter of Credit Advance
made by Issuing Bank shall be reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any Bank
to make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Bank of its obligation hereunder to
make its Letter of Credit Advance on such date, but no Bank shall be responsible
for the failure of any other Bank to make the Letter of Credit Advance to be
made by such other Bank on such date.
Section 2.04 Fees. (a) Commitment Fees. The Borrower agrees to pay to the
Agent for the account of each Bank a commitment fee through the Termination Date
on the amount of such Bank's Unused Revolving Credit Commitment, (i) from the
date of this Agreement in the case of each Bank
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listed on the signature pages hereof or (ii) from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Bank, payable
quarterly in arrears (within three Business Days after receipt from the Agent of
an invoice therefor) for each period ending on the last day of each March, June,
September and December hereafter, commencing September 30, 2004, and on the
Termination Date, at a rate per annum equal to the Applicable Commitment Fee
Rate in effect from time to time (the "Commitment Fee").
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Agent for the account of each Bank a commission, payable in arrears quarterly
(within three Business Days after receipt from the Agent of an invoice therefor)
for each period ending on the last day of each March, June, September and
December, commencing September 30, 2004 and on the Termination Date, on such
Bank's Pro Rata Share of the average daily aggregate Available Amount during
such quarter of all Letters of Credit then outstanding at a rate equal to the
Applicable Margin on Eurodollar Rate Advances in effect from time to time.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, (A) an issuance fee for each Letter of Credit issued by such Issuing
Bank in an amount equal to 0.125% of the Available Amount of such Letter of
Credit on the date of issuance of such Letter of Credit, payable on such date
and (B) such other commissions, fronting fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as the Borrower and Issuing Bank shall agree.
(c) Other Fees. The Borrower agrees to pay to the Agent, the
Co-Lead Arrangers, and the Banks such other fees as may be separately agreed to
in writing.
Section 2.05 Reduction of Commitments. The Borrower shall have the right,
upon at least three Business Days' notice to the Agent, to terminate in whole or
reduce ratably in part the Unused Revolving Credit Commitments; provided that
each partial reduction shall be in the minimum aggregate amount of $10,000,000
and in an integral multiple of $5,000,000. Any termination or reduction of any
of the Commitments shall be permanent.
Section 2.06 Repayment of Advances; Required Cash Collateral. (a)
Revolving Credit Advances. The Borrower shall repay the principal amount of each
Revolving Credit Advance owing to each Bank on the Termination Date or on such
earlier date as may be applicable pursuant hereto.
(b) Letter of Credit Advances. (i) The Borrower shall repay to the
Agent for the account of each Issuing Bank and each other Bank that has made a
Letter of Credit Advance on the earlier of the third Business Day following the
date on which such Letter of Credit Advance is made and the Termination Date the
outstanding principal amount of each Letter of Credit Advance made by each of
them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument, in each case
relating to any Letter of Credit, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances (it
being understood that any such payment by the Borrower is without prejudice to,
and does not constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by any Issuing Bank of any draft or the
reimbursement by the Borrower thereof):
- 20 -
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating thereto (all of the
foregoing being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of the
Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or any
of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for which
any such beneficiary or any such transferee may be acting), any
Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or
waiver of or consent to departure from the Subsidiary Guaranty or
any other guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or a
guarantor.
(c) Cash Collateral. (i) Prior to the Collateral Release Date, (x)
so long as no Ratings Event shall have occurred, 100% of the Net Cash Proceeds
received by the Borrower or any of its Subsidiaries (or, in the case of a
non-wholly-owned Subsidiary, the pro rata share attributable to the Borrower's
(direct or indirect) percentage ownership interest in such Subsidiary) from
dispositions of Collateral and (y) from and after the occurrence of a Ratings
Event and the granting and perfection of additional security pursuant to Section
5.01(i)(ii), 100% of the Net Cash Proceeds from dispositions of Collateral
(other than (A) proceeds from any Excluded Disposition or (B) proceeds which do
not exceed $5,000,000 in any single transaction or any series of related
transactions) shall be in each case deposited in the Shared Collateral Account
as collateral for the Shared Collateral Obligations; provided, that an aggregate
amount of up to $150,000,000 of such Net Cash Proceeds referred to in clause (y)
which would otherwise be required to be deposited to the Shared Collateral
Account may be retained by the Borrower and its Subsidiaries. Upon the
Collateral Release Date, such Collateral shall be released on the terms set
forth in Section 8.09(b). For purposes of this Section 2.06(c), if the
Borrower's (direct or indirect) percentage ownership in any consolidated
Subsidiary whose Equity Interests constitute part of the Collateral is reduced
(whether due to an issuance of equity by such Person or otherwise) then the
portion of the net cash proceeds received by such Person attributable to such
reduction shall be deemed to be proceeds received by the Borrower or one of its
Subsidiaries from a disposition of Collateral pursuant to this Section and shall
be subject to the prepayment provisions hereof.
- 21 -
(ii) If on any date the sum of the aggregate Available Amount of
all Letters of Credit outstanding on such date plus the aggregate principal
amount of Advances outstanding on such date exceeds the aggregate Commitments on
such date, the Borrower shall, within three Business Days thereafter, pay to the
Agent in same day funds at the Agent's office, for deposit in the L/C Cash
Collateral Account, an amount equal to such excess, which amount shall be
released within three Business Days after notice from the Borrower to the Agent
that the sum of the aggregate Available Amount of all Letters of Credit plus the
aggregate principal amount of Advances outstanding on such date no longer
exceeds the aggregate Commitments.
(d) At any time that the Advances have been paid in full, the
Available Amount of Letters of Credit has been cash collateralized and the
Commitments have been terminated, if at such time the Collateral Release Date
has not occurred, the Agent agrees to provide to the Collateral Agent a written
notification to such effect.
Section 2.07 Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) During such periods as such Advance is a Base Rate Advance, a
rate per annum equal at all times to the Base Rate in effect from time to
time plus the Applicable Margin in effect from time to time, payable
quarterly in arrears on the last day of each March, June, September and
December and on the date such Base Rate Advance shall be Converted or paid
in full; provided, that any amount of principal of a Base Rate Advance
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum
equal at all times to the sum of the rate otherwise payable thereon plus
2%.
(b) During such periods as such Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Margin in effect from time to time, payable on
the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Revolving Credit Advance shall be Converted or
paid in full; provided, that any amount of principal of a Eurodollar Rate
Advance which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, payable on demand, (i)
from the date on which such amount is due until the end of the Interest
Period for such Revolving Credit Advance, at a rate per annum equal at all
times to the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Margin in effect from time to time plus 2%, and (ii) from the
end of such Interest Period until such amount is paid in full, at a rate
per annum equal at all times to the sum of the rate of interest in effect
from time to time for Base Rate Advances plus 2%.
(c) Upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a), the Borrower shall pay simple interest, to
the fullest extent permitted by law, on the amount of any interest, fee or
other amount (other than principal of Advances which is covered by
Sections 2.07(a) and 2.07(b)) payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to the sum of the rate
of interest in effect from time to time for Base Rate Advances plus 2% per
annum.
Section 2.08 Additional Interest on Eurodollar Rate Advances. The Borrower
shall pay to each Bank, so long as such Bank shall be required under regulations
of the Federal Reserve Board to maintain
- 22 -
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Advance of such Bank during such periods as such Advance is a Eurodollar
Rate Advance, from the date of such Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest Period then in
effect for such Eurodollar Rate Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date
on which interest is payable on such Eurodollar Rate Advance. Such additional
interest shall be determined by such Bank and notified to the Borrower through
the Agent.
Section 2.09 Interest Rate Determination. (a) The Agent shall give prompt
notice to the Borrower and the Banks of the applicable interest rate determined
by the Agent for purposes of Section 2.07(b).
(b) If the Agent is unable to determine the Eurodollar Rate for
any Eurodollar Rate Advances:
(i) the Agent shall forthwith notify the Borrower and the Banks
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Banks to make Eurodollar Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Banks
that the circumstances causing such suspension no longer exist.
(c) If, with respect to any Eurodollar Rate Advances, the Required
Banks notify the Agent (A) that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Banks of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period or (B) that Dollar deposits for the relevant amounts and
Interest Period for their respective Advances are not available to them in the
London interbank market, the Agent shall forthwith so notify the Borrower and
the Banks, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and
(ii) the obligation of the Banks to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist.
(d) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Banks and such Revolving
Credit Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances (or if such Advances
are then Base Rate Advances, will continue as Base Rate Advances).
- 23 -
(e) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances, and on and after such date the
right of the Borrower to Convert such Advances into Eurodollar Rate Advances
shall terminate.
(f) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Banks to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
Section 2.10 Optional and Mandatory Prepayments; Required Cash Collateral.
(a) The Borrower shall have no right to prepay any principal amount of any
Advance other than as provided in this Section 2.10. The Borrower may, upon
notice given to the Agent before 11:00 A.M. (New York City time) on the first
Business Day prior to the date of prepayment in the case of Base Rate Advances
or upon at least three Business Days' notice to the Agent in the case of
Eurodollar Rate Advances, in each case stating the proposed date (which shall be
a Business Day) and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount not less than $10,000,000 in the case of
Eurodollar Rate Advances and $5,000,000 in the case of Base Rate Advances and in
integral multiples of $1,000,000, and after giving effect thereto no Borrowing
then outstanding shall have a principal amount of less than $5,000,000; and (y)
in the case of any such prepayment of a Eurodollar Rate Advance, the Borrower
shall be obligated to reimburse the Banks in respect thereof pursuant to Section
8.04(b).
(b) At any time prior to the Collateral Release Date, if the
aggregate Unused Revolving Credit Commitments of the Banks at such time would be
less than the aggregate Reduced Amounts at such time, the outstanding principal
amounts of the Advances shall be prepaid (and the outstanding Letters of Credit
shall be cash collateralized, if necessary, by a deposit in the L/C Cash
Collateral Account) at such time to the extent necessary to eliminate such
difference. Any prepayment of the Advances under this Section 2.10(b) shall be
made together with (i) accrued interest to the date of such prepayment on the
principal amount prepaid and (ii) in the case of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Banks
in respect thereof pursuant to Section 8.04(b).
Section 2.11 Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 11:00 A.M. (New York City
time) on the day when due in Dollars to the Agent (except that payments under
Section 2.08 shall be paid directly to the Bank entitled thereto) at Xxx Xxxxx
Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest, Commitment Fees or Letter of Credit Fees ratably (except
amounts payable pursuant to Section 2.12 or Section 2.13 and except that any
Bank may receive less than its ratable share of interest to the extent Section
8.06 is applicable to it) to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Bank to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.08(c),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Bank assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to
- 24 -
such effective date directly between themselves. At the time of each payment of
any principal of or interest on any Borrowing to the Agent, the Borrower shall
notify the Agent of the Borrowing to which such payment shall apply. In the
absence of such notice the Agent may specify the Borrowing to which such payment
shall apply.
(b) All computations of interest based on the Base Rate (except
during such times as the Base Rate is determined pursuant to clause (c) of the
definition thereof), of Commitment Fees and of Letter of Credit Fees shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate, the Federal Funds
Rate or, during such times as the Base Rate is determined pursuant to clause (c)
of the definition thereof, the Base Rate shall be made by the Agent, and all
computations of interest pursuant to Section 2.07 shall be made by a Bank, on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each determination by the Agent (or in
the case of Section 2.07, by a Bank) of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, Commitment Fees and
Letter of Credit Fees, as the case may be; provided, however, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment in full to the
Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate.
Section 2.12 Increased Costs and Capital Requirements. (a) If, due to
either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation by any
governmental authority charged with the interpretation or administration thereof
or (ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Bank of agreeing to make or making,
funding or maintaining any Eurodollar Rate Advance or of agreeing to issue or of
issuing or maintaining or participating in Letters of Credit or of agreeing to
make or of making or maintaining Letter of Credit Advances (excluding, for
purposes of this Section 2.12, any such increased costs resulting from (x) Taxes
or Other Taxes (as to which Section 2.13 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such Bank
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, within 15 days after demand
by such Bank (with a copy of such demand to the Agent), pay to the Agent for the
account of such Bank additional amounts sufficient to compensate such Bank for
such increased cost; provided, however, that the Borrower shall not be required
to pay to such Bank any portion of such additional amounts that are incurred
more than 90 days prior to any such demand, unless such additional amounts had
not been imposed or were not determinable on the date that is 90 days prior to
such demand. A certificate setting
- 25 -
forth in reasonable detail the amount of such increased cost, submitted to the
Borrower and the Agent by such Bank, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If following the introduction of or any change in any
applicable law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of law) any
Bank determines that compliance by such Bank with any such law or regulation or
guideline or request regarding capital adequacy affects or would affect the
amount of capital required or expected to be maintained by such Bank or any
Person controlling such Bank and that the amount of such capital is increased by
or based upon the existence of such Bank's commitment to lend or to issue or
participate in Letters of Credit hereunder and other commitments of such type or
the issuance or maintenance of or participation in Letters of Credit (or similar
contingent obligations), then, within 15 days after demand by such Bank (with a
copy of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Bank, from time to time as specified by such Bank, additional
amounts sufficient to compensate such Bank or such Person in the light of such
circumstances, to the extent that such Bank reasonably determines such increase
in capital to be allocable to the existence of such Bank's commitment to lend or
to issue or participate in Letters of Credit hereunder or to the issuance of or
participation in any Letters of Credit; provided, however, that the Borrower
shall not be required to pay to such Bank any portion of such additional amounts
that are incurred more than 90 days prior to any such demand, unless such
additional amounts had not been imposed or were not determinable on the date
that is 90 days prior to such demand. A certificate setting forth in reasonable
detail such amounts submitted to the Borrower and the Agent by such Bank shall
be conclusive and binding for all purposes, absent manifest error.
(c) Each Bank shall make reasonable efforts (consistent with its
internal policies and legal and regulatory restrictions) to select a
jurisdiction for its Applicable Lending Office or change the jurisdiction of its
Applicable Lending Office, as the case may be, so as to avoid the imposition of
any increased costs under this Section 2.12 or to eliminate the amount of any
such increased cost which may thereafter accrue; provided that no such selection
or change of the jurisdiction for its Applicable Lending Office shall be made
if, in the reasonable judgment of such Bank, such selection or change would be
disadvantageous to such Bank.
Section 2.13 Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.11, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges and withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
overall net income (including branch profits), and franchise taxes imposed on or
measured by net income, by the jurisdiction under the laws of which such Bank or
the Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its overall net income(including
branch profits), and franchise taxes imposed on or measured by net income, by
the jurisdiction of such Bank's Applicable Lending Office or principal executive
office or any political subdivision thereof, and all liabilities with respect
thereto (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"), except
as may otherwise be required by law. If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Agent, (i) the sum payable shall be increased by such
amount (an "Additional Amount") as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Bank or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law. Any such payment by the Borrower shall be
made in the name of the relevant Bank or the Agent (as the case may be).
- 26 -
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or any of the Notes (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Bank and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.13) imposed on or paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest and reasonable expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payments under any indemnification provided for
in this Section 2.13(c) shall be made within 30 days from the date such Bank or
the Agent (as the case may be) makes written demand therefor describing such
Taxes or Other Taxes in reasonable detail.
(d) If the Agent or a Bank reasonably determines that it has
finally and irrevocably received a refund in respect of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower, or with respect to which
the Borrower has paid Additional Amounts, pursuant to this Section 2.13, it
shall within 30 days from the date of such receipt pay over such refund to the
Borrower (but only to the extent such refund is attributable, as reasonably
determined by such Agent or Bank, to such indemnity payments made, or Additional
Amounts paid, by the Borrower under this Section 2.13 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Agent or Bank and without interest (other than interest paid by
the relevant taxation authority with respect to such refund); provided, however,
that the Borrower, upon the request of the Agent or Bank, agrees to repay the
amount paid over to the Borrower (plus penalties, interest or other charges, if
any, imposed by the relevant taxation authority in respect of such repayment) to
the Agent or Bank in the event the Agent or Bank is required to repay such
refund to the applicable taxation authority. Nothing contained in this Section
2.13(d) shall interfere with the right of the Agent or any Bank to arrange its
tax affairs in whatever manner it determines appropriate nor oblige the Agent or
any Bank to claim any tax credit or to disclose any information relating to its
tax affairs or any computations in respect thereof or require the Agent or any
Bank to do anything that would prejudice its ability to benefit from any other
tax relief to which it may be entitled.
(e) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof (or
other evidence of payment reasonably satisfactory to the Agent). In the case of
any payment hereunder or under the Notes by or on behalf of the Borrower through
an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel reasonably acceptable to the Agent stating that such payment
is exempt from Taxes imposed by the jurisdiction from which such payment is
made. For purposes of this Section 2.13(e) and Section 2.13(f), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Code.
(f) Each Bank organized under the laws of a jurisdiction outside
the United States, (i) on or prior to the date of the Initial Extension of
Credit in the case of each such Bank listed on the signature pages hereof, (ii)
on the date of the Assignment and Acceptance pursuant to which it becomes a
Bank, (iii) on or before the date, if any, it changes its Applicable Lending
Office, and (iv) from time to time thereafter if reasonably requested in writing
by the Borrower or the Agent or promptly upon the obsolescence or invalidity of
any form previously delivered by such Bank (but only so long as such Bank
remains lawfully able to do so), shall provide the Agent and the Borrower with
two original Internal Revenue Service Forms W-8BEN or W-8ECI (or, in the case of
a Bank that is entitled to claim exemption
- 27 -
from withholding of United States federal income tax under Section 871(h) or
881(c) of the Code, (A) a certificate representing that such Bank is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code) and (B) Internal Revenue
Service Form W-8BEN), as appropriate, or any successor or other form prescribed
by the Internal Revenue Service, properly completed and duly executed by such
Bank, certifying that such Bank is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes (or, in the case of a Bank providing the certificate described in clause
(A), certifying that such Bank is a foreign corporation, partnership, estate or
trust). If the forms provided by a Bank at the time such Bank first becomes a
party to this Agreement indicate or require a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes for purposes of this Section 2.13 unless and until such Bank
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Bank becomes a party
to this Agreement (or the date, if any, a Bank changes its Applicable Lending
Office), the Bank assignor (or such Bank) was entitled to payments under
subsection (a) of this Section 2.13 in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes, subject to the provisions
of this subsection (f)) United States withholding tax, if any, applicable with
respect to the Bank assignee (or such Bank) on such date.
(g) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form described in subsection (f) above
(other than if such failure is due to a change in law, or in the interpretation
or application thereof by any governmental authority charged with the
interpretation or application thereof, occurring after the date on which a form
originally was required to be provided or if such form otherwise is not required
under subsection (f) above), such Bank shall not be entitled to indemnification
or payment of an Additional Amount under subsection (a) or (c) of this Section
2.13 with respect to Taxes imposed by the United States to the extent such
United States Taxes exceed the United States Taxes that would have been imposed
had such form been provided; provided, however, that should a Bank become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(h) Any Bank claiming any indemnity payment or Additional Amounts
payable pursuant to this Section 2.13 shall use commercially reasonable efforts
(consistent with its generally applicable internal policy and legal and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Borrower or to designate a different Applicable
Lending Office following the reasonable request in writing of the Borrower if
the making of such a filing or change would avoid the need for or reduce the
amount of any such indemnity payment or Additional Amounts that may thereafter
accrue and would not, in the sole determination of such Bank, require the
disclosure of information that the Bank reasonably considers confidential, or be
otherwise disadvantageous to such Bank.
Section 2.14 Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the principal of or interest on the
Advances owing to it (except amounts payable pursuant to Sections 2.08, 2.12 or
2.13, and except that any Bank may receive less than its ratable share of
interest to the extent Section 8.06 is applicable to it) in excess of its
ratable share of payments on account of the principal of or interest on the
Advances obtained by all the Banks, such Bank shall forthwith purchase from the
other Banks such participations in the Advances owing to them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them, provided, however, that if all or any portion
- 28 -
of such excess payment is thereafter recovered from such purchasing Bank, such
purchase from each Bank shall be rescinded and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such Bank's ratable share
(according to the proportion of (i) the amount of the participation purchased
from such Bank as a result of such excess payment to (ii) the total amount of
such excess payment) of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
Section 2.15 Illegality. Notwithstanding any other provision of this
Agreement, if any Bank ("Affected Bank") shall notify the Borrower and the Agent
that the introduction of or any change in any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Bank, or its Eurodollar Lending Office, to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) the obligation of the Affected Bank to
make, or to Convert Advances into, Eurodollar Rate Advances shall forthwith be
suspended (and any request by the Borrower for a Borrowing comprised of
Eurodollar Rate Advances shall, as to each Affected Bank, be deemed a request
for a Base Rate Advance to be made on the same day as the Eurodollar Rate
Advances of the Banks that are not Affected Banks and such Base Rate Advance
shall be considered as part of such Borrowing) until the Affected Bank shall
notify the Borrower, the Banks and the Agent that the circumstances causing such
suspension no longer exist and (ii) forthwith after such notice from an Affected
Bank to the Agent and the Borrower, all Eurodollar Rate Advances of such
Affected Bank shall be deemed to be Converted to Base Rate Advances (but will
otherwise continue to be considered as a part of the respective Borrowings that
they were a part of prior to such Conversion); provided, however, that, before
making any such demand, such Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Bank or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Bank, be
otherwise materially disadvantageous to such Bank. In the event any Bank shall
notify the Agent of the occurrence of any circumstance contemplated under this
Section 2.15, all payments and prepayments of principal that would otherwise
have been applied to repay the Eurodollar Rate Advances that would have been
made by such Bank or the Converted Eurodollar Rate Advances shall instead be
applied to repay the Base Rate Advances made by such Bank in lieu of such
Eurodollar Rate Advances or resulting from the Conversion of such Eurodollar
Rate Advances and shall be made at the time that payments on the Eurodollar Rate
Advances of the Banks that are not Affected Banks are made. Each Bank that has
delivered a notice of illegality pursuant to this Section 2.15 above agrees that
it will notify the Borrower as soon as practicable if the conditions giving rise
to the illegality cease to exist.
Section 2.16 Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Conversion and subject
to the provisions of Sections 2.02(b), 2.09 and 2.15, Convert all Advances of
one Type comprising the same Borrowing into Advances of the other Type;
provided, however, that (i) any Conversion of any Eurodollar Rate Advances into
Base Rate Advances shall be made on, and only on, the last day of an Interest
Period for such Eurodollar Rate Advances, except as provided in Section 2.15,
and (ii) Advances comprising a Borrowing may not be Converted into Eurodollar
Rate Advances if the outstanding principal amount of such Borrowing is less than
$10,000,000 or if any Event of Default under Section 6.01(a) shall have occurred
and be continuing on the date the related notice of Conversion would otherwise
be given pursuant to this Section 2.16. Each such notice of
- 29 -
a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower. If any Event of Default under Section
6.01(a) shall have occurred and be continuing on the third Business Day prior to
the last day of any Interest Period for any Eurodollar Rate Advances, the
Borrower agrees to Convert all such Advances into Base Rate Advances on the last
day of such Interest Period.
Section 2.17 Replacement or Removal of Bank. In the event that any Bank
shall claim payment of any increased costs pursuant to Section 2.12 or any
additional amounts pursuant to Section 2.13, or exercises its rights under
Section 2.15, the Borrower shall have the right, if no Default or Event of
Default then exists, to (a) replace such Bank with an Eligible Assignee in
accordance with Section 8.08(a), (b) and (d) (including execution of an
appropriate Assignment and Acceptance); provided that such Eligible Assignee (i)
shall unconditionally offer in writing (with a copy to the Agent) to purchase on
a date therein specified all of such Bank's rights hereunder and interest in the
Advances owing to such Bank and the Note held by such Bank without recourse at
the principal amount of such Note plus interest, Commitment Fees and Letter of
Credit Fees accrued thereon to the date of such purchase, and (ii) shall execute
and deliver to the Agent an Assignment and Acceptance, as assignee, pursuant to
which such Eligible Assignee becomes a party hereto with a Commitment equal to
that of the Bank being replaced (plus, if such Eligible Assignee is already a
Bank, the amount of its Commitment prior to such replacement), provided,
further, that no Bank or other Person shall have any obligation to increase its
Commitment or otherwise to replace, in whole or in part, any Bank or (b) remove
such Bank without replacing it; provided that the Borrower may not remove a Bank
pursuant to this clause (b) if the aggregate Commitments of all Banks so removed
would exceed $100,000,000. Upon satisfaction of the requirements set forth in
the first sentence of this Section 2.17, acceptance of such offer to purchase by
the Bank to be replaced, payment to such Bank of the purchase price in
immediately available funds by the Eligible Assignee replacing such Bank,
execution of such Assignment and Acceptance by such Bank, such Eligible Assignee
and the Agent, the payment by the Borrower of all requested costs accruing to
the date of purchase which the Borrower is obligated to pay under Section 8.04
and all other amounts owed by the Borrower to such Bank (other than Commitment
Fees and Letter of Credit Fees accrued for the account of such Bank and the
principal of and interest on the Advances of such Bank purchased by such
Eligible Assignee) and notice by the Borrower to the Agent that such payment has
been made, such Eligible Assignee shall constitute a "Bank" hereunder with a
Commitment as so specified and the Bank being so replaced shall no longer
constitute a "Bank" hereunder except that the rights under Sections 2.07, 2.12,
2.13 and 8.04 of the Bank being so replaced shall continue with respect to
events and occurrences before or concurrently with its ceasing to be a "Bank"
hereunder. If, however, (x) a Bank accepts such an offer and such Eligible
Assignee fails to purchase such rights and interest on such specified date in
accordance with the terms of such offer or such Eligible Assignee or the Agent
fails to execute the relevant Assignment and Acceptance, the Borrower shall
continue to be obligated to pay the increased costs to such Bank pursuant to
Section 2.12 or the additional amounts pursuant to Section 2.13, as the case may
be, or (y) the Bank proposed to be replaced fails to accept such purchase offer
or to execute the relevant Assignment and Acceptance, the Borrower shall not be
obligated to pay to such Bank such increased costs or additional amounts
incurred or accrued from and after the date of such purchase offer.
Section 2.18 Evidence of Indebtedness. Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Bank resulting from each Advance owing to
such Bank from time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time hereunder. The Borrower agrees
that upon notice by any Bank to the Borrower (with a copy of such notice to the
Agent) to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Bank to evidence (whether for purposes
of pledge, enforcement or otherwise) the Advances owing to, or to be made by,
such Bank, the
- 30 -
Borrower shall promptly execute and deliver to such Bank, with a copy to the
Agent, a Note in substantially the form of Exhibit A hereto, payable to the
order of such Bank in a principal amount equal to the Revolving Credit
Commitment of such Bank. All references to Notes in the Loan Documents shall
mean Notes, if any, to the extent issued hereunder.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Effectiveness. This Agreement shall
become effective on and as of the first date (the "Effective Date") on which the
Agent shall have received counterparts of this Agreement duly executed by the
Borrower and all of the Banks and the following additional conditions precedent
shall have been satisfied, except that Section 2.04(a) shall become effective as
of the first date on which the Agent shall have received counterparts of this
Agreement duly executed by the Borrower and all of the Banks:
(a) The Borrower shall have notified the Agent in writing as to
the proposed Effective Date.
(b) Each of the Agent and the Co-Lead Arrangers shall be
reasonably satisfied in all material respects with (i) the structure of
the Plan of Reorganization and the other aspects of the Transaction
(excluding the terms of the settlement contemplated thereby and the amount
of the Settlement Payments to the extent, in each case, such terms and
amount are not materially different from those set forth in the March 2004
10-Q) and all related tax, legal and accounting matters, (ii) the
capitalization, corporate or organizational, and legal structure and
equity ownership of the Borrower and its material Subsidiaries (including,
without limitation, the charters and bylaws of each of the Borrower and
its material Subsidiaries and each agreement or instrument relating
thereto) after giving effect to the Transaction and (iii) the projected
financial condition of the Borrower and its subsidiaries on a consolidated
basis following the consummation of the Plan of Reorganization.
(c) Each of the Agent and the Co-Lead Arrangers shall be
reasonably satisfied that there has been no material adverse change since
June 10, 2004 (which shall not be deemed to refer to the contemplated
restructurings disclosed to the Co-Lead Arrangers on or prior to such
date) in either (i) the corporate and legal structure and capitalization
of the Borrower and its material Subsidiaries, including, without
limitation, the charters and bylaws of each of the Borrower and each of
its material Subsidiaries and each agreement or instrument relating
thereto or (ii) the projected financial condition of the Borrower and its
Subsidiaries on a consolidated basis following the Order Entry.
(d) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance reasonably
satisfactory to the Agent and (except for the Notes) in sufficient copies
for each Bank:
(i) The Notes to the order of the Banks to the extent
requested by any Bank pursuant to Section 2.18.
(ii) An amended and restated share pledge agreement in
substantially the form of Exhibit F hereto (together with each other
pledge agreement and pledge agreement supplement delivered pursuant
to Section 5.01(i), in each case as amended, the "Pledge
Agreement"), duly executed by the Borrower and HESI in favor of the
Collateral Agent, together with (to the extent not heretofore
provided):
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(A) to the extent such Pledged Equity is certificated,
certificates representing the Pledged Equity referred to
therein accompanied by undated stock powers executed in blank;
(B) financing statements in proper form for filing
under the Uniform Commercial Code of all jurisdictions that
the Agent may deem necessary or desirable in order to perfect
and protect the first priority liens and security interests
created under the Pledge Agreement, covering the Collateral
described in the Pledge Agreement;
(C) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing
all effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as
debtor, together with copies of such other financing
statements; and
(D) except for the filing of financing statements to
occur after the Effective Date and except as otherwise
permitted by the Loan Documents, evidence that all other
action that the Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under the Pledge
Agreement has been taken.
(iii) An amended and restated subsidiary guaranty in
substantially the form of Exhibit G hereto (together with each other
subsidiary guaranty and subsidiary agreement supplement delivered by
a Subsidiary Guarantor pursuant to Section 5.01(i), in each case as
amended, the "Subsidiary Guaranty"), duly executed by each
Subsidiary Guarantor in favor of the Agent, the Banks, the
Three-Year Agent, the Three-Year Banks, the LC Agent and the XX
Xxxxx.
(iv) An amended and restated collateral trust agreement in
substantially the form of Exhibit H hereto (together with each other
collateral trust agreement supplement delivered by a Loan Party
pursuant to Section 5.01(i), in each case as amended, the
"Collateral Trust Agreement"), duly executed by the Borrower, HESI
and the Collateral Agent.
(v) Certified copies of the resolutions of the Board of
Directors, members or partners of each Loan Party approving each
Loan Document to which such Loan Party is or is to be a party, and
of all documents evidencing other necessary corporate or
organizational action and governmental approvals, if any, with
respect to each Loan Document to which such Loan Party is or is to
be a party.
(vi) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which such Loan Party is or is to be a party and the other documents
to be delivered by such Loan Party hereunder.
(vii) A certificate of an officer of the Borrower stating the
respective ratings by each of S&P and Xxxxx'x, respectively, of the
senior unsecured long-term debt of the Borrower as in effect on the
Effective Date.
(viii) A letter addressed to the Agent from the Borrower with
respect to the Senior Unsecured Credit Facility Agreement stating
that (i) all the "Commitments" (as
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defined in the Senior Unsecured Credit Facility Agreement) of the
"Banks" (as defined in the Senior Unsecured Credit Facility
Agreement) have been terminated, (ii) no "Advances" (as defined in
the Senior Unsecured Credit Facility Agreement) are outstanding
under the Senior Unsecured Credit Facility Agreement, and (iii) all
fees and other amounts known by the Borrower to be payable under the
Senior Unsecured Credit Facility Agreement have been paid in full.
(ix) A favorable opinion of Xxxxx X. Xxxxxxxxx, Assistant
Secretary and Assistant General Counsel for the Borrower, in
substantially the form of Exhibit C-1 hereto.
(x) A favorable opinion of Xxxxx Xxxxx LLP, counsel for the
Loan Parties, in substantially the form of Exhibit C-2 hereto.
(xi) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the Agent.
(e) There shall exist no action, suit, investigation, litigation
or proceeding pending or threatened in any court or before any arbitrator
or governmental instrumentality that (i) could reasonably be expected to
have a Material Adverse Effect other than the Disclosed Litigation or (ii)
purports to affect the legality, validity or enforceability of the
Borrower's or any Subsidiary Guarantor's obligations or the rights and
remedies of the Banks relating to the Agreement and the other Loan
Documents, and except as set forth in Schedule 4.01(f) to this Agreement,
there shall have been no material adverse change in the status, or
financial effect on the Borrower and its subsidiaries on a consolidated
basis, of the Disclosed Litigation from that described to the Agent on or
prior to June 10, 2004.
(f) There shall have occurred no material adverse change (which
term shall not be deemed to refer to the commencement of the Chapter 11
Cases) in the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its subsidiaries, on a
consolidated basis, since December 31, 2003, except as disclosed in the
March 2004 10-Q, except as disclosed to the Agent, the Co-Lead Arrangers
and the Banks on the Banks' conference calls on June 15, 2004 and June 29,
2004 and except for the accounting charges taken and to be taken by the
Borrower directly in connection with the Settlement Payments and except as
set forth in Schedule 4.01(f) to this Agreement, and the Agent shall have
received a certificate signed by a Responsible Officer of the Borrower
stating that the condition in this Section 3.01(f) has been satisfied as
of the Effective Date.
(g) Each of the Agent and the Co-Lead Arrangers shall be satisfied
that the Borrower and its subsidiaries are not subject to material
contractual or other restrictions that would be violated by the
Transaction, including the incurrence of indebtedness under this
Agreement, the granting of guarantees and collateral and the payment of
dividends by subsidiaries.
(h) Except as otherwise permitted by the Loan Documents, all
governmental and third party consents and approvals necessary in
connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not reasonably
acceptable to the Agent and the Co-Lead Arrangers) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Agent and the Co-Lead Arrangers that restrains, prevents
or imposes materially adverse conditions upon the transactions
contemplated hereby.
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(i) On the Effective Date, the following statements shall be true
and the Agent shall have received a certificate signed by a duly
authorized officer of the Borrower, dated the Effective Date, stating
that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date,
(ii) No event has occurred and is continuing that constitutes
a Default,
(iii) Any default under the Borrower's or any of its material
Subsidiaries' material debt instruments that would be triggered by
the filing of the Chapter 11 Cases and related transactions has been
permanently waived or amended,
(iv) The Borrower has disclosed to the Agent (A) all material
potential cash collateral and/or reimbursement obligations under
letters of credit and (B) all material potential liabilities with
respect to sureties, in each case, existing prior to the date
hereof, that might arise as a result of the filing of the Chapter 11
Cases and related transactions, and
(v) To the Borrower's knowledge, the Borrower will not be
required for any reason due to events or circumstances existing
prior to the Effective Date to cause its consolidated financial
statements for fiscal year 2001 or 2002 to be reaudited or restated
after the Effective Date, except in order to reflect changes in the
Borrower's segment reporting.
(j) All accrued fees and reasonable out-of-pocket expenses of the
Co-Lead Arrangers (including the reasonable fees and expenses of counsel
to the Co-Lead Arrangers for which invoices have been submitted) shall
have been paid.
(k) The Borrower shall have paid all accrued fees and reasonable
out-of-pocket expenses of the Agent (including reasonable fees and
expenses of counsel for which invoices have been submitted).
Section 3.02 Conditions Precedent to Each Revolving Credit Advance and
Each Issuance and Renewal of Each Letter of Credit. The obligation of each Bank
to make an Advance (other than a Letter of Credit Advance made by an Issuing
Bank or a Revolving Credit Bank pursuant to Section 2.03(c)) (including, without
limitation, the initial Revolving Credit Advance) and each Issuing Bank to issue
or renew Letters of Credit (including the initial Letter of Credit) shall be
subject to the conditions precedent that on the date of such Advance or such
issuance of a Letter of Credit, the following statements shall be true (and each
of the giving of the applicable Notice of Revolving Credit Borrowing or Notice
of Issuance and Application for Letter of Credit and the acceptance by the
Borrower of the proceeds of the Borrowing of which such Advance or of such
Letter of Credit or of the renewal of such Letter of Credit is a part shall
constitute a representation and warranty by the Borrower that on the date of
such Advance or such issuance or renewal such statements are true):
(i) the representations and warranties contained in Section
4.01 (other than, in the case of a Revolving Credit Borrowing, if
the Borrower specifies in the Notice of Revolving Credit Borrowing
that the proceeds of the related Revolving Credit Advance shall be
used to repay the Borrower's Obligations under one of the Borrower's
commercial paper programs, those representations and warranties
contained in Section 4.01(f) and 4.01(g)) are correct on and as of
the date of such Revolving Credit Advance
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or such Letter of Credit (other than those representations and
warranties that expressly relate solely to a specific earlier date,
which shall remain correct as of such earlier date), before and
after giving effect to such Borrowing or issuance or renewal and to
the application of the proceeds therefrom, as though made on and as
of such date.
(ii) no event has occurred and is continuing, or would result
from such Borrowing or such issuance or renewal or from the
application of the proceeds therefrom, which constitutes a Default
or an Event of Default, and
(iii) there exists no request or directive issued by any
governmental authority, central bank or comparable agency,
injunction, stay, order, litigation or proceeding purporting to
affect or calling into question the legality, validity or
enforceability of any Loan Document or the consummation of any
transaction (including any Advance or proposed Advance or issuance
or renewal of a Letter of Credit or proposed Letter of Credit)
contemplated hereby.
Section 3.03 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, the Agent,
the Co-Lead Arrangers and each Bank shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Persons unless an officer of the Agent responsible for the
transactions contemplated by this Agreement shall have received notice from such
Person prior to the date that the Borrower, by notice to the Agent, designates
as the proposed Effective Date, specifying its objection thereto. The Agent
shall promptly notify the Banks and the Borrower of the occurrence of the
Effective Date, which notice shall be conclusive and binding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite organizational
power and authority to own its properties, to conduct its business as now
being conducted and to execute, deliver and perform each Loan Document to
which it is or is to be a party, except for any failures to be so
organized, existing, qualified to do business or in good standing or to
have such power and authority as would not, individually or in the
aggregate, have a Material Adverse Effect.
(b) The execution, delivery and performance by each Loan Party of
each Loan Document to which it is or is to be a party and the consummation
of the transactions contemplated hereby (including, without limitation,
the Transaction, each Revolving Credit Borrowing and issuance or renewal
of a Letter of Credit hereunder and the use of the proceeds thereof) and
the transactions contemplated thereby (i) are within such Loan Party's
organizational power, (ii) have been duly authorized by all necessary
organizational action, and (iii) do not contravene (A) such Loan Party's
certificate of organization or by-laws, (B) any law, rule, regulation,
order, writ, injunction or decree, or (C) any contractual restriction
under any material agreements binding on or affecting such Loan Party or
any Subsidiary of such Loan Party or any other contractual restriction the
contravention of which would have a Material Adverse Effect.
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(c) No authorization, approval, consent, license or other action
by, and no notice to or filing with, any governmental authority,
regulatory body or other Person is required for the due execution,
delivery and performance by each Loan Party of each Loan Document to which
it is or is to be a party, or for the consummation of the transactions
contemplated hereby (including, without limitation, the Transaction (other
than the Order Entry), each Revolving Credit Borrowing and issuance or
renewal of a Letter of Credit hereunder and the use of the proceeds
thereof) and the transactions contemplated thereby, except (i) consents,
authorizations, filings and notices which have been obtained or made and
are in full force and effect, (ii) the UCC filings referred to in Section
3.01, (iii) approvals that would be required under agreements that are not
material agreements and (iv) as otherwise permitted by the Loan Documents.
(d) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto and constitute legal, valid and binding obligations of
such Loan Party enforceable against such Loan Party in accordance with
their respective terms, except as such enforceability may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally.
(e) The Financial Statements have been reported on by KPMG LLP and
fairly present the consolidated financial position of the Borrower and its
consolidated subsidiaries as at such date and the consolidated results of
their operations and cash flows for the year then ended, all in accordance
with GAAP. The unaudited consolidated balance sheet of the Borrower and
its consolidated subsidiaries as at March 31, 2004 and the related
unaudited consolidated statements of income and cash flows of the Borrower
and its consolidated subsidiaries for the three months then ended,
included in the Borrower's March 2004 10-Q, fairly present, subject to
year-end audit adjustments, the consolidated financial position of the
Borrower and its consolidated subsidiaries as at such date and the
consolidated results of their operations and cash flows for the three
months ended on such date, all in accordance with GAAP. Since December 31,
2003 through the date hereof there has been no material adverse change
(which shall not be deemed to refer to the filing of the Chapter 11 Cases
or to the accounting charge taken and to be taken by the Borrower directly
in connection with the Settlement Payments) in the condition (financial or
otherwise), operations or business of the Borrower and its Subsidiaries,
taken as a whole, except as disclosed in the March 2004 10-Q and Schedule
4.01(f) to this Agreement and except as disclosed to the Agent, the
Co-Lead Arrangers and the Banks on the Banks' conference calls on June 15,
2004 and June 29, 2004.
(f) Except as set forth in the Borrower's Form 10-K/A for the year
ended December 31, 2003, the March 2004 10-Q, Schedule 4.01(f) to this
Agreement and, from and after the occurrence of the Collateral Release
Date, except for litigation, investigations and proceedings arising after
the date hereof that are described in reasonable detail in a notice from
the Borrower to the Agent, there is no litigation, investigation or
proceeding pending or, to the Borrower's knowledge, threatened against or
affecting the Borrower, any of its Subsidiaries or any of its or their
respective rights or properties before any court or by or before any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (i) that could reasonably be
expected to have a Material Adverse Effect or (ii) that in any manner
draws into question or purports to affect (A) prior to the Collateral
Release Date, the Transaction (other than objections to the Plan of
Reorganization and appeals of the confirmation order entered by the
Bankruptcy Court in connection therewith) or (B) any other transaction
contemplated hereby or the legality, validity, binding effect or
enforceability of any Loan Document.
- 36 -
(g) Schedule 4.01(g) hereto constitutes a complete and accurate
list of all pending non-US lawsuits as of the date hereof against the
Borrower and its Subsidiaries (including, without limitation, claims
arising through a Subsidiary not listed on Schedule II hereto) asserting
exposure to asbestos, asbestos-related products, silica and/or
silica-related products and, except as set forth in such Schedule 4.01(g)
and other non-material asbestos or silica claims disclosed to the Co-Lead
Arrangers in writing on or prior to the date hereof, the Borrower has not
been notified of (A) any claims against the Borrower and its Subsidiaries
asserting exposure to asbestos, asbestos-related products, silica and/or
silica-related products which will not be resolved pursuant to the Order
Entry or (B) any adoption or change of any statute, rule or regulation
affecting such claims or future claims against the Borrower and its
Subsidiaries asserting exposure to asbestos, asbestos-related products,
silica and/or silica-related products, in each case, which could be
reasonably expected to have a Material Adverse Effect.
(h) Schedule 4.01(h) hereto lists all of the Borrower's domestic
Subsidiaries as of the date hereof.
(i) Neither any Loan Party nor any Subsidiary of a Loan Party is
engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U). Following
the application of the proceeds of each Advance and each Letter of Credit,
(i) not more than 25% of the value of the assets of the Borrower that are
subject to any arrangement with the Agent or any Bank (herein or
otherwise) whereby the Borrower's right or ability to sell, pledge or
otherwise dispose of assets is in any way restricted (or pursuant to which
the exercise of any such right is or may be cause for accelerating the
maturity of all or any portion of the Advances or any other amount payable
hereunder or under any such other arrangement), will be margin stock
(within the meaning of Regulation U); and (ii) not more than 25% of the
value of the assets of the Borrower and its Subsidiaries that are subject
to any arrangement with the Agent or any Bank (herein or otherwise)
whereby the right or ability of the Borrower or any of its Subsidiaries to
sell, pledge or otherwise dispose of assets is in any way restricted (or
pursuant to which the exercise of any such right is or may be cause for
accelerating the maturity of all or any portion of the Advances or any
other amount payable hereunder or under any such other arrangement), will
be any such margin stock. No proceeds of any Advance or any Letter of
Credit will be used in any manner that is not permitted by Section 5.02.
(j) No Loan Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(k) Neither any Loan Party nor any of its Subsidiaries is 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", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
(l) No statement or information contained in this Agreement or any
other document, certificate or statement furnished to the Agent or the
Banks by or on behalf of the Borrower for use in connection with the
transactions contemplated by this Agreement or the Notes (as modified or
supplemented by other information furnished) contains as of the date such
statement, information, document or certificate was so furnished any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made;
provided, however, that, with respect to any such information, exhibit or
report consisting of statements, estimates, pro forma financial
information, forward-looking statements and projections regarding the
future performance of the Borrower or any of its Subsidiaries
("Projections"), no
- 37 -
representation or warranty is made other than that such Projections have
been prepared in good faith based upon assumptions believed to be
reasonable at the time.
(m) Neither the Borrower nor any of its Subsidiaries is in
violation of any laws relating to terrorism or money laundering,
including, without limitation, the Patriot Act, except to the extent such
violation could not reasonably be expected to have a Material Adverse
Effect.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants. So long as any Advance or any other
amount payable by any Loan Party hereunder or under any other Loan Document
shall remain unpaid, any Letter of Credit shall be outstanding or any Bank shall
have any Commitment hereunder, the Borrower will, unless the Required Banks
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable law, rules, regulations and
orders (including, without limitation, ERISA and environmental laws and
permits) except to the extent that failure to so comply (in the aggregate
for all such failures) could not reasonably be expected to have a Material
Adverse Effect.
(b) Preservation of Corporate or Organizational Existence, Etc.
(i) Preserve and maintain and cause each of its Subsidiaries to preserve
and maintain (unless, in the case of any Subsidiary, (A) such Loan Party
or Subsidiary determines that such preservation and maintenance is no
longer necessary in the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, and (B) the failure to so preserve and
maintain would not impair the Collateral in any material respect), its
corporate or organizational existence, rights (charter and statutory),
franchises, permits, licenses, approvals and privileges in the
jurisdiction of its organization; provided, however, that such Loan Party
and its Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(d) and provided further that neither such Loan Party
nor any of its Subsidiaries shall be required to preserve any right,
permit, license, approval, privilege or franchise the failure to do so
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and (ii) qualify and remain qualified and
cause each of its Subsidiaries to qualify and remain qualified, as a
foreign organization in each jurisdiction in which qualification is
necessary or desirable in view of its business and operations or the
ownership of its Properties, except where the failure to so qualify or
remain qualified could not, individually or in the aggregate, reasonably
be expected to give rise to a Material Adverse Effect.
(c) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments, charges and like levies levied or
imposed upon it or upon its income, profits or Property prior to the date
on which penalties attach thereto and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its Property; provided that
neither the Borrower nor any Subsidiary shall be required to pay and
discharge any such tax, assessment, charge, levy or claim if the failure
to do so (in the aggregate for all such failures) could not reasonably be
expected to have a Material Adverse Effect.
(d) Reporting Requirements. Furnish to the Agent:
(i) not later than 60 days after the end of each of the
first three quarters of each fiscal year of the Borrower, (1) the
consolidated and, prior to the Collateral Release
- 38 -
Date, consolidating (provided that such statements prepared on a
consolidating basis need not be audited and shall only relate to
each of the "Energy Services Group" and the "Engineering and
Construction Group") balance sheets of the Borrower and its
consolidated subsidiaries as at the end of such quarter and the
consolidated and, prior to the Collateral Release Date,
consolidating (with respect only to each of the "Energy Services
Group" and the "Engineering and Construction Group") statements of
income and cash flows of the Borrower and its consolidated
subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, all in
reasonable detail, and (2) a copy of the Borrower's Form 10-Q for
such quarter as filed with the SEC and copies of each Form 8-K
(other than press releases) filed by the Borrower with the SEC
during such quarter;
(ii) not later than 120 days after the end of each fiscal
year of the Borrower, (1) copies of the audited consolidated balance
sheet and, prior to the Collateral Release Date, unaudited
consolidating balance sheet (with respect only to each of the
"Energy Services Group" and the "Engineering and Construction
Group") of the Borrower and its consolidated subsidiaries as at the
end of such fiscal year and audited consolidated statements and,
prior to the Collateral Release Date, unaudited consolidating
statements (provided that such statements prepared on a
consolidating basis need not be audited and shall only relate to
each of the "Energy Services Group" and the "Engineering and
Construction Group") of income, retained earnings and cash flows of
the Borrower and its consolidated subsidiaries for such fiscal year,
and (2) a copy of the Borrower's Form 10-K for such year as filed
with the SEC and copies of each Form 8-K filed by the Borrower with
the SEC during such year (other than those Forms 8-K previously
delivered to the Banks in accordance with Section 5.01(d)(i) and
press releases);
(iii) within five Business Days after filing with the SEC,
copies of all registration statements (other than on Form S-8),
proxy statements and Schedules 13-D filed by, or in respect of, the
Borrower or any of its Subsidiaries with the SEC;
(iv) as soon as possible, and in any event within ten days
after any Responsible Officer has obtained knowledge of the
occurrence of any Default or Event of Default, written notice
thereof setting forth details of such Default or Event of Default
and the actions that the Borrower has taken and proposes to take
with respect thereto;
(v) promptly (and in any event within five Business Days)
after any change in, or withdrawal or termination of, the rating of
any senior unsecured long-term debt of the Borrower by S&P or
Xxxxx'x, notice thereof;
(vi) promptly after the sending or filing thereof, copies of
all reports that the Borrower sends to any of its holders of common
stock;
(vii) prior to the Collateral Release Date, promptly after the
receipt thereof, notice of all actions and proceedings before any
court, governmental or agency or arbitrator affecting the Borrower
or any of its Subsidiaries of the type described in Section 4.01(f);
and
(viii) such other information as any Bank through the Agent
may from time to time reasonably request.
- 39 -
Information required to be delivered pursuant to Sections 5.01(d)(i),
5.01(d)(ii), 5.01(d)(iii) or 5.01(d)(vi) shall be deemed to have been
delivered on the date on which the Borrower provides notice to the Agent
that such information has been posted on the Borrower's website on the
Internet at xxx.xxxxxxxxxxx.xxx, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at
another website identified in such notice and accessible by the Banks
without charge; provided that the Borrower shall deliver paper copies of
the information referred to in such Sections to the Agent for distribution
to (x) any Bank to which the above referenced websites are for any reason
not available if such Bank has so notified the Borrower and (y) any Bank
that has notified the Borrower that it desires paper copies of all such
information; provided further that the Agent shall notify the Banks as
provided in Section 8.02 of any materials delivered pursuant to this
paragraph.
(e) Inspections. At any reasonable time and from time to time, in
each case upon reasonable notice to the Borrower and subject to any
applicable restrictions or limitations on access to any facility or
information that is classified or restricted by contract or by law,
regulation or governmental guidelines, permit each Bank to visit and
inspect the properties of the Borrower or any Subsidiary of the Borrower,
and to examine and make copies of and abstracts from the records and books
of account of the Borrower and its Subsidiaries and discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with its and
their officers and independent accountants provided, however, that advance
notice of any discussion with such independent public accountants shall be
given to the Loan Parties, and the Loan Parties shall have the opportunity
to be present at any such discussion.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with GAAP.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
material properties that are used or useful in the conduct of the business
of the Borrower and its Subsidiaries, taken as a whole, in good working
order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and, if a comparable arm's-length transaction is known by the
Borrower, no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided, however, that the foregoing restriction shall not
apply to
(i) transactions between or among the Borrower and its
subsidiaries;
(ii) transactions or payments pursuant to any employment
arrangements or employee, officer or director benefit plans or
arrangements entered into by the Borrower or any of its Subsidiaries
in the ordinary course of business;
(iii) to the extent permitted by law, customary loans,
advances, fees and compensation paid to, and indemnity provided on
behalf of, officers, directors, employees or consultants of the
Borrower or any of its Subsidiaries;
(iv) any transactions pursuant to agreements among the
Borrower and/or its Subsidiaries and the Trusts entered into in
connection with the Plan of Reorganization;
- 40 -
(v) transactions pursuant to any contract or agreement in
effect on the date hereof, as the same may be amended, modified or
replaced from time to time, so long as any such contract or
agreement as so amended, modified or replaced is, taken as a whole,
no less favorable to the Borrower and its Subsidiaries in any
material respect than the contract or agreement as in effect on the
date hereof;
(vi) any transaction or series of transactions between the
Borrower or any Subsidiary and any of their joint ventures, provided
that (a) such transaction or series of transactions is in the
ordinary course of business and consistent with past practices of
the Borrower, and/or its Subsidiaries and their joint ventures and
(b) such Affiliate transaction involves aggregate consideration paid
to such Affiliate not in excess of $35 million; or
(vii) any payment, distribution or other transaction of the
type described in 5.02(c) and permitted thereunder.
(i) Covenant to Guarantee Obligations and Give Security. (i)
Subject to Section 5.01(i)(ii), upon the formation or acquisition after
the date hereof and prior to the Collateral Release Date, of any new
first-tier Subsidiaries by the Borrower or HESI, the Borrower shall, and,
if applicable, shall cause HESI to, at the Borrower's or HESI's expense:
(A) within 20 days after such formation or
acquisition, cause each such wholly-owned Subsidiary organized
under the laws of a state of the United States, to duly
execute and deliver to the Agent a Guaranty Supplement,
guaranteeing the other Loan Parties' obligations under the
Loan Documents; provided that no Project Finance Subsidiary,
JV Subsidiary or Receivables Subsidiary shall be required to
execute and deliver a Guaranty Supplement,
(B) within 20 days after such formation or
acquisition, duly execute and deliver, to the Agent, Pledge
Agreement supplements (together with certificates
representing, in the case of such a Subsidiary organized under
the laws of a state of the United States, 100% of the equity
interests of such Subsidiary owned by the Borrower or HESI
and, in the case of such a foreign Subsidiary, 66% of the
equity interests of such foreign Subsidiary owned by the
Borrower or HESI (excluding, in each case, the equity
interests in any Project Finance Subsidiary or any Receivables
Subsidiary), in each case accompanied by undated stock powers
executed in blank), securing payment of all the Obligations of
all Loan Parties under the Loan Documents and constituting
Liens on all such properties,
(C) within 20 days after such formation or
acquisition, take, and cause such Subsidiary to take whatever
action (including, without limitation, the filing of Uniform
Commercial Code financing statements and the giving of
notices) may be necessary or advisable in the reasonable
opinion of the Agent to vest in the Agent (or in any
representative of the Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to
the Pledge Agreement supplements delivered pursuant to this
Section 5.01(i), enforceable against all third parties in
accordance with their terms,
(D) within 60 days after such formation or
acquisition, deliver to the Agent, upon the reasonable request
of the Agent, a signed copy of a favorable opinion, addressed
to the Agent and the other Secured Holders, of in-house
- 41 -
counsel of the Borrower or other counsel for the Loan Parties
reasonably acceptable to the Agent as to the matters contained
in clauses (A), (B) and (C) above, as to such Guaranty
Supplements and Pledge Agreement supplements being legal,
valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to such
recordings, filings, notices, endorsements and other actions
being sufficient to create valid perfected Liens on such
properties, and as to such other matters as the Agent may
reasonably request, and
(E) at any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as the Agent may
reasonably deem necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of,
such guaranties and Pledge Agreement supplements.
(ii) Prior to the occurrence of the Collateral Release Date,
upon (x) the occurrence of a Ratings Event or (y)(1) the formation
or acquisition at any time after a Ratings Event of any new direct
or indirect Specified Subsidiaries (as defined below) by any Loan
Party or (2) the acquisition at any time after a Ratings Event of
any property by any Loan Party, and such property, in the judgment
of the Agent, shall not already be subject to a perfected first
priority (subject to Liens permitted by Section 5.02(a)) security
interest in favor of the Agent for the benefit of the Secured
Holders, then the Borrower shall, and/or shall cause each Loan Party
to, in each case at the Borrower's expense, and in each case subject
to such reasonable and customary exceptions as the Agent may agree:
(A) in connection with the formation or acquisition of
a domestic Subsidiary directly or indirectly wholly-owned by
the Borrower or HESI (each such Subsidiary other than DII
Industries LLC, Halliburton Affiliates LLC and each of their
respective Subsidiaries, any Project Finance Subsidiary, any
JV Subsidiary, any dormant Subsidiary and any Receivables
Subsidiary being a "Specified Subsidiary"), within 20 days
after such formation or acquisition, cause each such Specified
Subsidiary, to duly execute and deliver to the Agent a
Guaranty Supplement, guaranteeing the other Loan Parties'
obligations under the Loan Documents,
(B) within 20 days after such Ratings Event, formation
or acquisition, furnish to the Agent a description of the real
and personal properties of the Loan Parties and their
respective Subsidiaries or such new Specified Subsidiary, as
the case may be in detail reasonably satisfactory to the
Agent,
(C) within 20 days after such Ratings Event, formation
or acquisition, duly execute and deliver, and cause each such
new Specified Subsidiary, if applicable (and each direct
parent of such new Specified Subsidiary or JV Subsidiary shall
pledge its equity in such Specified Subsidiary or JV
Subsidiary) (if it has not already done so) to duly execute
and deliver, to the Agent pledges, assignments, Pledge
Agreement supplements and other security agreements, as
specified by and in form and substance reasonably satisfactory
to the Agent, securing payment of all the Obligations of the
applicable Loan Party, such new Specified Subsidiary or such
parent, as the case may be, under the Loan Documents and
constituting Liens on all such properties of the Loan Parties
and
- 42 -
Specified Subsidiaries, including, without limitation, bank
accounts; provided that (1) no JV Subsidiary shall be required
to execute and deliver a pledge of its Equity Interest in a
joint venture to the extent that the applicable joint venture
agreement prohibits such a pledge, (2) no Project Finance
Subsidiary, JV Subsidiary or Receivables Subsidiary shall be
required to grant a security interest in its assets, (3) no
pledge of Equity Interests in a Project Finance Subsidiary or
a Receivables Subsidiary shall be required, (4) no such
encumbrance shall be required as to property that is subject
to a Lien permitted by Section 5.02(a) or that is already
subject to an agreement (otherwise permitted by this
Agreement), in each case, that prohibits the granting of Liens
on such specific property and (5) no more than 66% of the
equity interests owned by such Person in any foreign
Subsidiary shall be required to be pledged.
(D) within 20 days after such Ratings Event, formation
or acquisition, take, and cause such new Specified Subsidiary,
if applicable, or such parent to take, whatever action
(including, without limitation, the filing of Uniform
Commercial Code financing statements, the giving of notices
and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Agent to vest in
the Agent (or in any representative of the Agent designated by
it) valid and subsisting Liens on the properties purported to
be subject to the pledges, assignments, Pledge Agreement
supplements and security agreements delivered pursuant to this
Section 5.01(i)(ii), enforceable against all third parties in
accordance with their terms,
(E) within 45 days after such Ratings Event, formation
or acquisition, deliver to the Agent, deeds of trust, trust
deeds, mortgages, leasehold mortgages and leasehold deeds of
trust on the real property of the Loan Parties located in the
United States with a value in excess of $1,000,000, except
real property that is subject to a Lien permitted by Section
5.02(a) or that is already subject to an agreement (otherwise
permitted by this Agreement), in each case, that prohibits the
granting of such Liens on such specific property,
(F) within 60 days after such Ratings Event, formation
or acquisition, deliver to the Agent, upon the reasonable
request of the Agent in its sole discretion, a signed copy of
a favorable opinion, addressed to the Agent and the other
Secured Holders, of counsel for the Loan Parties reasonably
acceptable to the Agent as to the matters contained in clauses
(A), (C), (D) and (E) above, as to such guaranties, guaranty
supplements, mortgages, pledges, assignments, Pledge Agreement
supplements and security agreements being legal, valid and
binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to the matters
contained in clauses (D) and (E) above, as to such recordings,
filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties,
and as to such other matters as the Agent may reasonably
request,
(G) as promptly as practicable after such Ratings
Event, request, formation or acquisition, deliver, upon the
reasonable request of the Agent, with respect to each parcel
of real property to be so mortgaged, owned or held by the
entity that is the subject of such request, formation or
acquisition title reports, surveys and engineering, soils and
other reports, and environmental assessment reports, each in
scope, form and substance reasonably satisfactory to the
Agent,
- 43 -
provided, however, that to the extent that any Loan Party or
any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered
to the Agent, and
(H) at any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as the Agent may
reasonably deem necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of,
such guaranties, mortgages, pledges, assignments, Pledge
Agreement supplements and security agreements.
The time periods required by this Section 5.01(i)(ii) may, upon the Borrower's
request, be extended at the option of the Agent by up to 15 Business Days in the
event the Borrower is exercising commercially reasonable efforts to perform the
actions required by such time periods but additional time is required to
complete such actions. The granting and perfection of Collateral under this
Section 5.01(i) (including, without limitation, Collateral consisting of foreign
Subsidiary stock pledges) will be subject to cost efficiency determinations
reasonably made by the Co-Lead Arrangers in consultation with the Borrower,
taking into account, among other things, adverse tax consequences,
administrative procedures required by local law or practice, and other
parameters to be agreed.
(j) Further Assurances. At any time that the Banks are entitled to
be secured by Collateral under the provisions of the Loan Documents,
(i) promptly upon request by the Agent, or any Bank through the
Agent, correct, and cause each other Loan Party promptly to correct, any
material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and
(ii) promptly upon request by the Agent, or any Bank through the
Agent, do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register any and all such further acts, deeds,
conveyances, pledge agreements, mortgages, deeds of trust, trust deeds,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments as the Agent, or any Bank through the Agent, may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest extent
permitted by applicable law, subject any Loan Party's or any of its
Subsidiaries' properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C)
perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Banks the rights granted or
now or hereafter intended to be granted to the Secured Holders under any
Loan Document or under any other instrument executed in connection with
any Loan Document to which any Loan Party or any of its Subsidiaries is or
is to be a party, and cause each of its Subsidiaries to do so.
Section 5.02 Negative Covenants. So long as any Advance or any other
amount payable by any Loan Party hereunder or under any other Loan Document
shall remain unpaid, any Letter of Credit shall be outstanding or any Bank shall
have any Commitment hereunder, the Borrower will not, without the written
consent of the Required Banks:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist,
- 44 -
(x) prior to the Collateral Release Date, any Lien on or with respect to
any of its Properties whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any accounts or other right
to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens incurred pursuant to (A) the transactions
contemplated by the Receivables Transfer Agreement, dated as of
April 15, 2002, by and among Oilfield Services Receivables
Corporation, a Delaware corporation, as transferor, Halliburton
Energy Services, Inc., a Delaware corporation, individually and as
collection agent, and the other parties thereto, and any
replacement, extension or renewal thereof, and the receivables
purchase agreement related thereto and (B) other Securitization
Transactions;
(iv) Liens on or with respect to any of the properties of the
Loan Parties and any of their Subsidiaries existing on the date
hereof;
(v) (A) Liens upon or in property acquired (including
acquisition through merger or consolidation) or constructed or
improved by the Borrower or any of its Subsidiaries including
general intangibles, proceeds and improvements, accessories and
upgrades thereto and created contemporaneously with, or within 12
months after, such acquisition or the completion of construction or
improvement to secure or provide for the payment of all or a portion
of the purchase price of such property or the cost of construction
or improvement thereof (including any Indebtedness incurred to
finance such acquisition, construction or improvement), as the case
may be and (B) Liens on property (including any unimproved portion
of partially improved property) of the Borrower or any of its
Subsidiaries created within 12 months of completion of construction
of a new plant or plants on such property to secure all or part of
the cost of such construction (including any Indebtedness incurred
to finance such construction) if, in the opinion of the Borrower,
such property or such portion thereof was prior to such construction
substantially unimproved for the use intended by the Borrower;
provided, however, no such Lien shall extend to or cover any
property other than the property being acquired, constructed or
improved (including any unimproved portion of a partially improved
property) including general intangibles, proceeds and improvements,
accessories and upgrades thereto;
(vi) Liens arising in connection with capitalized leases
permitted hereunder, provided that no such Lien shall extend to or
cover any Collateral or assets other than the assets subject to such
capitalized leases; and proceeds (including, without limitation,
proceeds from associated contracts and insurances) of, and
improvements, accessories and upgrades to, the property leased
pursuant thereto;
(vii) any Lien existing on any property including general
intangibles, proceeds and improvements, accessories and upgrades
thereto prior to the acquisition (including acquisition through
merger or consolidation) thereof by any Loan Party or any of their
respective Subsidiaries or existing on any property of any Person
that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary, provided that such a Lien is not
created in contemplation or in connection with such acquisition or
such Person becoming a Subsidiary and no such Lien shall be extended
to
- 45 -
cover property other than the asset being acquired including general
intangibles, proceeds and improvements, accessories and upgrades
thereto;
(viii) Liens to secure any extension, renewal, refunding or
replacement (or successive extensions, renewals, refinancing,
refundings or replacements), in whole or in part, of any
Indebtedness or other obligation secured by any Lien referred to in
the foregoing clauses (ii), (iv), (v), (vi) and (vii), provided that
(A) the principal amount of the Indebtedness or other obligation
secured thereby is no greater than the outstanding principal amount
of such Indebtedness or other obligation immediately before such
extension, renewal, refinancing, refunding or replacement and (B)
such Lien shall only extend to such assets as are already subject to
a Lien in respect of such Indebtedness or other obligation;
(ix) Liens pursuant to merger agreements, stock purchase
agreements, asset sale agreements, option agreements and similar
agreements in respect of the disposition of property or assets of
the Borrower and its Subsidiaries (but in any event not securing
Indebtedness), to the extent such dispositions are permitted
hereunder and such Liens relate only to the assets or properties to
be disposed of;
(x) Liens arising in connection with the pledge of any
Equity Interests in any joint venture (that is not a Subsidiary),
and liens on the assets of a JV Subsidiary, in each case to secure
Joint Venture Debt of such joint venture and/or such JV Subsidiary.
For purposes hereof, "Joint Venture Debt" shall mean Indebtedness
and other obligations as to which the lenders will not, pursuant to
the terms in the agreements governing such Indebtedness, have any
recourse to the stock or assets of the Borrower or any Subsidiary,
other than such pledged assets of such JV Subsidiary;
(xi) Lien on assets of the Filing Entities securing the DIP
Credit Facility;
(xii) Liens on the Equity Interests of DII and Mid-Valley,
Inc. in favor of the Trusts;
(xiii) Liens arising in connection with the pledge of any
Equity Interests in any Project Finance Subsidiary, so long as such
Liens secure only Project Financing;
(xiv) prejudgment Liens which are being contested in good
faith by appropriate proceedings;
(xv) judgment Liens which are being contested in good faith
by appropriate proceedings and Liens securing appeal or similar
surety bonds therefor; provided that no Event of Default exists
under Section 6.01(f) relating thereto;
(xvi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(xvii) netting provisions and setoff rights in favor of
counterparties securing obligations under hedge agreements;
(xviii) Liens on assets under construction securing progress
or partial payments relating to such assets;
- 46 -
(xix) the interest of a lessor or licensor under an operating
lease or license under which the Borrower or any Subsidiary are
lessee, sublessee or licensee, including protective financing
statement filings; and
(xx) other Liens securing Indebtedness and obligations under
hedge agreements outstanding in principal amount (in the case of
Indebtedness) and xxxx-to-market value (in the case of hedge
agreements) not to exceed $100,000,000 for all such secured
Indebtedness and hedge agreements; provided, that no such Lien shall
extend to or cover any Collateral; and
(y) from and after the Collateral Release Date, any Lien on or with
respect to any of its Properties whether now owned or hereafter acquired
to secure Indebtedness or reimbursement obligations in respect of letters
of credit, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens of the type identified in clause (iii) of Section
5.02(a)(x);
(ii) Liens of the type identified in clauses (iv), (v), (vi)
and (vii) of Section 5.02(a)(x);
(iii) Liens to secure any extension, renewal, refunding or
replacement (or successive extensions, renewals, refinancing,
refundings or replacements), in whole or in part, of any
Indebtedness or other obligation secured by any Lien referred to in
the foregoing clause (ii), provided that (A) the principal amount of
the Indebtedness or other obligation secured thereby is no greater
than the outstanding principal amount of such Indebtedness or other
obligation immediately before such extension, renewal, refinancing,
refunding or replacement and (B) such Lien shall only extend to such
assets as are already subject to a Lien in respect of such
Indebtedness or other obligation;
(iv) Liens of the type identified in clauses (x), (xii) and
(xiii) of Section 5.02(a)(x);
(v) Liens securing other Indebtedness and obligations under
hedge agreements, provided that at the time of the creation,
incurrence or assumption of any Indebtedness or obligation under a
hedge agreement secured by such Liens and after giving effect
thereto, the sum of the principal amount of such Indebtedness and
the xxxx-to-market value of such obligations under hedge agreements
secured by Liens permitted by this clause (v) shall not exceed, when
taken together with the aggregate principal amount of Indebtedness
of Subsidiaries outstanding pursuant to Section 5.02(b)(xi), 15% of
Consolidated Net Worth as reflected in the most recent financial
statements delivered pursuant to Section 5.01(d)(i) and (ii); and
(vi) Liens securing other Indebtedness provided that the
Obligations of the Loan Parties hereunder and under the other Loan
Documents are secured equally and ratably with such other
Indebtedness.
(b) Indebtedness of Subsidiaries. Permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Indebtedness except:
(i) Indebtedness incurred in the ordinary course of business
and consistent with the past practices of the Borrower's
Subsidiaries;
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(ii) Existing Indebtedness, including any extension, renewal,
refinancing or replacement thereof;
(iii) Project Financing;
(iv) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; provided that such Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary;
(v) Indebtedness referred to in clauses (v) and (vi) of
Section 5.02(a)(x) and secured by Liens permitted thereby;
(vi) Indebtedness of the Filing Entities incurred pursuant to
the DIP Facility;
(vii) During such time as the Obligations of the Loan Parties
under the Loan Documents are guaranteed by the Subsidiary
Guarantors, guarantees of Obligations of the Borrower by such
Subsidiary Guarantors under the Notes Agreements;
(viii) Indebtedness under the Loan Documents;
(ix) Indebtedness under Securitization Transactions;
(x) Indebtedness of Subsidiary Guarantors so long as such
Subsidiary remains a Subsidiary Guarantor for so long as such
Indebtedness is outstanding or such Indebtedness is otherwise
permitted by this Section 5.02(b);
(xi) From and after the Collateral Release Date, additional
Indebtedness, provided that at the time of the creation, incurrence
or assumption of such Indebtedness, the aggregate principal amount
thereof taken together with the aggregate principal amount of
outstanding Indebtedness incurred in reliance on this clause (xi)
and the aggregate principal amount of outstanding Indebtedness
secured by Liens permitted under clause (v) of Section 5.02(a)(y),
shall not exceed 15% of Consolidated Net Worth, as reflected in the
most recent financial statements delivered pursuant to Section
5.01(d)(i) and (ii);
(xii) Indebtedness of Subsidiaries that are special-purpose
business trusts under trust preferred securities that are guaranteed
by the Borrower; and
(xiii) Indebtedness under the Master LC Facility Agreement and
the Three-Year Revolving Credit Agreement.
(c) Restricted Payments. Prior to the Collateral Release Date,
declare or pay any dividends, purchase, redeem, retire, defease or
otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members
(or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such or permit
any of its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for
value any Equity Interests in the Borrower or to issue or sell any Equity
Interests therein, except that:
- 48 -
(i) the Borrower may declare and may pay, once declared,
dividends and distributions payable on stock of the Borrower only at
levels per outstanding share in effect as of the Effective Date
(such amount to be appropriately adjusted to reflect any stock
split, reverse stock split, stock dividend or similar transactions
made after the date hereof so that the aggregate amount of dividends
payable after such transaction is the same as the amount payable
immediately prior to such transaction); provided that (i) if an
Event of Default shall have occurred and be continuing or shall
result therefrom, no such declaration shall be permitted if any
Advances are then outstanding and (ii) if an Event of Default under
Section 6.01(a) shall have occurred and be continuing, no such
payment or distribution shall be permitted if any Advances are then
outstanding;
(ii) any Subsidiary of the Borrower may declare and pay
dividends and distributions to the Borrower or any other Loan Party
of which it is a Subsidiary;
(iii) any Subsidiary of the Borrower may pay dividends or
distributions to all holders of a class of Equity Interests of such
Subsidiary on a pro rata basis or on a basis that is more favorable
to the Borrower;
(iv) the Borrower or any Subsidiary may redeem, repurchase,
retire or otherwise acquire any of its Equity Interests in exchange
for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Borrower) of, Equity
Interests of the Borrower;
(v) the Borrower or any Subsidiary of the Borrower may
redeem, repurchase, retire or otherwise acquire any of its Equity
Interests in connection with a compensation plan, program or
practice; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall
not exceed $20 million in any fiscal year of the Borrower;
(vi) DII may purchase common stock of the Borrower from HESI
pursuant to the Stock Agreement; and
(vii) the Borrower and any Subsidiary of the Borrower may
grant, issue, distribute or dividend Equity Interests to its
directors, officers and employees and make or permit the vesting,
lapse, exercise or payment of Equity Interests in options,
restricted stock, performance awards (in the form of either cash or
stock of the Borrower), and other similar grants and awards pursuant
to existing (or substantially similar replacement or amended)
compensation plans, programs or practices.
For purposes of clarification, it is agreed and understood that Section
5.02(c) does not restrict the issuance, grant, dividend or distribution of
Equity Interests.
(d) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions, all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or, prior to the
Collateral Release Date, permit any of its material Subsidiaries to do so;
provided, however, that (i) this Section 5.02(d) shall not prohibit any
such merger or consolidation if (1) at the time of, and immediately after
giving effect to, such merger or consolidation, no Default or Event of
Default exists or would result therefrom, (2) the Borrower is the
surviving corporation in such merger or consolidation, and (3) the
Borrower shall continue to have senior unsecured long-term debt rated at
least BBB- by S&P and Baa3 by Xxxxx'x and (ii) any Subsidiary of the
Borrower
- 49 -
may transfer assets to, or merge into or consolidate with, the Borrower or
any other Subsidiary of the Borrower, provided that in the case of any
such merger or consolidation to which a Subsidiary Guarantor is a party,
the Person formed by such merger or consolidation shall be the Borrower or
a Subsidiary Guarantor.
(e) Use of Proceeds. Use the proceeds of any Advance or any Letter
of Credit for any purpose other than for general corporate purposes of the
Borrower or use any such proceeds (i) in a manner which violates or
results in a violation of any law or regulation, (ii) to purchase or carry
any margin stock (as defined in Regulation U), except that this clause
(ii) shall not prohibit the Borrower from using proceeds of the Advances
to purchase its own common stock if the aggregate amount of all such
proceeds so used does not exceed $100,000,000 and if each Notice of
Borrowing pertaining to such Advances specified that such proceeds would
be so used, (iii) to extend credit to others for the purpose of purchasing
or carrying any margin stock (as defined in Regulation U), or (iv) to
acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended.
Section 5.03 Financial Covenants. So long as any Advance shall remain
unpaid or any Bank shall have any Commitment hereunder, the Borrower will:
(a) Interest Charge Coverage Ratio. Not permit the Interest Charge
Coverage Ratio as of the end of a fiscal quarter to be less than 3.50 to
1.00.
(b) Consolidated Debt to Total Consolidated Capitalization Ratio.
Maintain at all times a maximum Consolidated Debt to Total Consolidated
Capitalization Ratio of:
(i) Prior to the Exit Date: 0.60 to 1.00; and
(ii) On and after the Exit Date: 0.55 to 1.00.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) (i) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable, whether at the due date
thereof or by acceleration thereof or otherwise or (ii) the Borrower shall
fail to pay any interest on any Advance or any fees hereunder or other
amount payable hereunder or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii),
within five Business Days of when the same becomes due and payable,
whether at the due date thereof or by acceleration thereof or otherwise;
or
(b) Any representation, warranty or certification made by any Loan
Party (or any of its officers) herein pursuant to or in connection with
any Loan Document or in any certificate or document furnished to any Bank
pursuant to or in connection with any Loan Document, or any representation
or warranty deemed to have been made by the Borrower pursuant to Section
3.02, shall prove to have been incorrect or misleading in any material
respect when made or so deemed to have been made; or
- 50 -
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(b), (d), (e), or (i), 5.02
or 5.03 of this Agreement; or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in Section 5.01 or
any Loan Party shall fail to perform or observe any other term, covenant
or agreement contained in any Loan Document on its part to be performed or
observed (other than any term, covenant or agreement covered by Section
6.01(a)) and, in each case under this clause (ii), such failure shall
remain unremedied for 30 days after notice thereof shall have been given
to the Borrower by the Agent or by any Bank; or
(d) The Borrower or any material Subsidiary of the Borrower shall
default in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any Debt (other than Project
Financing or Permitted Non-Recourse Debt) (whether principal, interest,
premium or otherwise) of, or directly or indirectly guaranteed by, the
Borrower or any such material Subsidiary, as the case may be, in excess of
$75,000,000 or the Borrower or any material Subsidiary of the Borrower
shall default in the performance or observance of any obligation or
condition with respect to any such Debt (other than Project Financing or
Permitted Non-Recourse Debt) if the effect of such default is to
accelerate the maturity of or require the posting of cash collateral with
respect to any such Debt or, in any case, any such Debt shall become due
prior to its stated maturity (other than by a regularly-scheduled required
payment and mandatory prepayments from proceeds of asset sales, debt
incurrence, excess cash flow, equity issuances and insurance proceeds);
provided that for the avoidance of doubt the parties acknowledge and agree
that (i) any payment required to be made under a guaranty or letter of
credit reimbursement agreement described in the definition herein of Debt
shall be due and payable at the time such payment is due and payable under
the terms of such guaranty or letter of credit reimbursement agreement
(taking into account any applicable grace period) and such payment shall
not be deemed to have been accelerated or have become due as a result of
the obligation guaranteed having become due and (ii) the conversion of the
Convertible Notes shall not be a Default or Event of Default hereunder; or
(e) The Borrower or any material Subsidiary of the Borrower (other
than a Filing Entity in connection with the filing of the Chapter 11
Cases) shall be adjudicated a bankrupt or insolvent by a court of
competent jurisdiction, or generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Borrower or any such material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its Property and, in the case of any
such proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 90
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for
any substantial part of its Property) shall occur; or the Borrower or any
such material Subsidiary shall take any corporate or organizational action
to authorize any of the actions set forth above in this subsection (e)
(other than in connection with the filing of the Chapter 11 Cases); or
(f) Any final, non-appealable judgment or order by a court of
competent jurisdiction for the payment of money in excess of $75,000,000
over and above the amount of insurance coverage available from a
financially sound insurer that has acknowledged coverage shall be rendered
against the Borrower or any material Subsidiary of the Borrower and not
discharged
- 51 -
within 30 days after such order or judgment becomes final; or any
judgment, writ, warrant of attachment or execution or similar process
shall be issued or levied against a substantial part of the property of
the Borrower or any material Subsidiary of the Borrower and such judgment,
writ, warrant of attachment or execution or similar process shall not be
released, stayed, vacated or fully bonded within 30 days after its issue
or levy; or
(g) Any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01, 5.01(i) or 5.01(j) shall for any reason
(other than pursuant to the terms thereof or due to the action or inaction
of the Collateral Agent) cease to create a valid and perfected first
priority (other than prior Liens permitted under the Loan Documents) lien
on and security interest in the Collateral purported to be covered thereby
or any Loan Party shall so state in writing and, if such security interest
was granted pursuant to Section 5.01(i)(ii), such situation shall remain
unremedied for 30 days;
(h) The Plan of Reorganization shall be amended, modified or
supplemented after the Effective Date in any manner materially adverse to
(i) the Banks or (ii) the ability of the Borrower and any material
Subsidiary which is a Loan Party to perform its Obligations under any Loan
Document to which it is or is to be a party, in each case without the
consent of the Required Banks; or
(i) The Borrower or any of its ERISA Affiliates shall incur, or,
in the reasonable opinion of the Required Banks, shall be reasonably
likely to incur liability in excess of $75,000,000 in the aggregate as a
result of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Borrower or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Banks, by notice to the Borrower, declare the
obligation of each Bank to make Advances (other than Letter of Credit Advances
by an Issuing Bank or a Bank pursuant to Section 2.03(c)) and of each Issuing
Bank to issue Letters of Credit to be terminated, whereupon the same (and all of
the Commitments) shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Banks, by notice to the Borrower, declare
the Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or any other notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the event of any
actual or deemed entry of an order for relief with respect to the Borrower under
the Bankruptcy Code, (A) the Commitment of each Bank and the obligation of each
Bank to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Bank pursuant to Section 2.03(c)) and of each Issuing Bank to issue Letters
of Credit shall automatically be terminated, and (B) the Advances, all interest
thereon and all other amounts payable under this Agreement shall automatically
and immediately become and be due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration, or any other
notice of any kind, all of which are hereby expressly waived by the Borrower.
Section 6.02 Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Agent may, or
shall at the request of the Required Banks, irrespective of whether it is taking
any of the actions described in Section 6.01 or otherwise, make demand upon the
Borrower to, and forthwith upon such demand the Borrower will, pay to the Agent
on behalf of the Banks in same day funds at the Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the Agent determines that any funds held in the L/C Cash Collateral
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Account are subject to any right or claim of any Person other than the Agent
and the Banks or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, the Borrower will, forthwith upon
demand by the Agent, pay to the Agent, as additional funds to be deposited and
held in the L/C Cash Collateral Account, an amount equal to the excess of (a)
such aggregate Available Amount over (b) the total amount of funds, if any, then
held in the L/C Cash Collateral Account that the Agent determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Cash Collateral Account, such funds shall
be applied to reimburse the relevant Issuing Bank or the Banks, as applicable,
to the extent permitted by applicable law.
ARTICLE VII
THE AGENT
Section 7.01 Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as Agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
hereof or of any other Loan Document, together with such powers and discretion
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement or collection
of the Notes), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Banks and such instructions shall be binding upon
all Banks and all holders of Notes; provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to any Loan Document or applicable law. The Agent agrees to
give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
Section 7.02 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Loan Document,
except for their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (i) may consult with legal
counsel (including, without limitation, counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any of the Loan Documents or any other instrument or
document; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any of
Loan Documents or any other instrument or document on the part of the Borrower
or any Subsidiary of the Borrower or to inspect the Property (including the
books and records) of the Borrower or any Subsidiary of the Borrower; (iv) shall
not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan Documents
or any other instrument or document; and (v) shall incur no liability under or
in respect of any of Loan Documents or any other instrument or document by
acting upon any notice (including telephonic notice), consent, certificate or
other instrument or writing (which may be by facsimile, telegram or telex)
believed by it to be genuine and signed, given or sent by the proper party or
parties.
Section 7.03 The Agent and its Affiliates. With respect to its Commitment,
the Advances owed to it and the Notes issued to it, each Bank which is also the
Agent shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not the Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include any Bank
serving as the Agent in its individual capacity. Any Bank serving as the Agent
and its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and
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generally engage in any kind of business with, the Borrower, any Affiliate of
the Borrower and any Person who may do business with or own securities of the
Borrower or any Affiliate of the Borrower, all as if such Bank were not the
Agent and without any duty to account therefor to the Banks.
Section 7.04 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the Financial Statements and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the 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 decisions in taking or not taking action under the Loan Documents or any
other instrument or document.
Section 7.05 Indemnification. The Banks agree to indemnify the Agent (to
the extent not promptly reimbursed by the Borrower), ratably according to the
respective principal amounts of the Notes then held by each of the Banks (or if
no Advances are at the time outstanding or if any Notes are held by Persons
which are not Banks, ratably according to either (a) the respective amounts of
the Banks' Commitments, or (b) if no Commitments are at the time outstanding,
the respective amounts of the Commitments immediately prior to the time the
Commitments ceased to be outstanding), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of any of the Loan Documents or any other instrument or document furnished
pursuant hereto or in connection herewith, or any action taken or omitted by the
Agent under any of the Loan Documents or any other instrument or document
furnished pursuant hereto or in connection herewith ("Indemnified Costs");
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent promptly upon demand for such Bank's ratable share of any costs and
expenses (including, without limitation, counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, any of the Loan Documents or any other instrument or
document furnished pursuant hereto or in connection herewith to the extent that
the Agent is not reimbursed for such expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any other Agent, any Bank or a third party.
Section 7.06 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint a successor Agent
which, if such successor Agent is not a Bank, is approved by the Borrower (which
approval will not be unreasonably withheld). If no successor Agent shall have
been so appointed by the Required Banks (and, if not a Bank, approved by the
Borrower), and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. After any retiring Agent's resignation or removal
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hereunder as Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
Section 7.07 Co-Lead Arrangers, Co-Administrative Agents, Syndication
Agent, Documentation Agent. The Co-Lead Arrangers, Co-Administrative Agents,
Syndication Agent and Documentation Agent shall have no duties, obligations or
liabilities hereunder or in connection herewith.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any Note or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or in the case of the Collateral
Documents or the Subsidiary Guaranty, consented to) by the Required Banks, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall: (a) waive any of the conditions specified in
Section 3.01 without the written consent of each Bank, (b) increase the
Commitment of any Bank or subject any Bank to any additional obligations without
the written consent of such Bank, (c) reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, without the written
consent of each Bank affected thereby, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other
amounts payable hereunder without the written consent of each Bank affected
thereby, (e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances which shall be required for the Banks or any of
them to take any action hereunder without the written consent of each Bank, (f)
materially reduce or limit the obligations of the Subsidiary Guarantors under
Section 1 of the Subsidiary Guaranty or otherwise limit the Subsidiary
Guarantors' liability with respect to the Obligations owing to the Agent and the
Banks without the written consent of each Bank (it being understood that (i) on
the sale or merger of a Subsidiary Guarantor or the transfer of all or
substantially all of its assets otherwise permitted hereunder, or (ii) on the
request of the Borrower with respect to any Subsidiary Guarantor that provided a
guaranty solely to comply with Section 5.02(b)(x), so long as such guaranty is
no longer required in order to comply with such Section, such guaranty shall
automatically be released), (g) release all or substantially all of the
Collateral in any transaction or series of related transactions, except as
contemplated by Section 8.09 without the written consent of each Bank; or (h)
amend Section 2.14 or this Section 8.01 without the written consent of each
Bank; and provided, further, that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Banks required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any of the Notes and (y) no amendment, waiver or consent shall,
unless in writing and signed by each Issuing Bank in addition to the Banks
required above to take such action, affect the rights or obligations of the
Issuing Banks under this Agreement.
Section 8.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including facsimile
communication) and mailed, telecopied, or delivered or (y) as and to the extent
set forth in Section 8.02(b) and in the proviso to this Section 8.02(a), (i) if
to the Borrower, at its address at 0000 XxXxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000 Attention: Xxxxx X. Xxxxxxx, Vice President and Treasurer, Facsimile:
(000) 000-0000; (ii) if to any Bank listed on the signature pages hereof, at its
Domestic Lending Office specified opposite its name on Schedule III hereto;
(iii) if to any other Banks, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it becomes a Bank; (iv) if to the
Agent, at the addresses set forth below:
Citicorp North America, Inc.
Xxx Xxxxx Xxx, Xxxxx 000
- 00 -
Xxx Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Bank Loan Syndications Department
with a copy to:
Citicorp North America, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxx, Vice President
(but references herein to the address of the Agent for purposes of payments or
making available funds or for purposes of Section 8.08(c) shall not include the
address to which copies are to be sent); or, as to the Borrower or the Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent,
provided that materials required to be delivered pursuant to Section 5.01(d)(i),
(ii), (iii) or (vi), unless delivered by posting to a website as provided in
Section 5.01(d), shall be delivered to the Agent as specified in Section 8.02(b)
or as otherwise specified to the Borrower by the Agent. Each such notice or
communication shall be effective (i) if mailed, upon receipt, (ii) if delivered
by hand, upon delivery with written receipt, and (iii) if telecopied, when
receipt is confirmed by telephone, except that any notice or communication to
the Agent pursuant to this Agreement shall not be effective until actually
received by the Agent.
(b) So long as CNAI or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(d)(i), (ii), (iii)
and (vi), unless delivered by posting to a website as provided in Section
5.01(d), shall be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Banks by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Borrower, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications") available
to the Banks by posting such notices on Intralinks, "e-Disclosure", the Agent's
internet delivery system that is part of Fixed Income Direct, Global Fixed
Income's primary web portal, or a substantially similar electronic system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform. Notices and other
communications to the Banks and the Agent hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the
Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Agent and the applicable Bank. The
Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Each Bank agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery
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of such information, documents or other materials to such Bank for purposes of
this Agreement; provided that if requested by any Bank the Agent shall deliver a
copy of the Communications to such Bank by email or facsimile. Each Bank agrees
(i) to notify the Agent in writing of such Bank's e-mail address to which a
Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Bank becomes a party to this Agreement
(and from time to time thereafter to ensure that the Agent has on record an
effective e-mail address for such Bank) and (ii) that any Notice may be sent to
such e-mail address.
Section 8.03 No Waiver; Remedies. No failure on the part of any Bank or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 8.04 Expenses and Taxes; Compensation. (a) The Borrower agrees to
pay on demand (i) all reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) of the Co-Lead
Arrangers and the Agent and each of their respective affiliates in connection
with the preparation, execution, delivery and administration of the Loan
Documents and the other documents and instruments delivered hereunder or in
connection with any amendments, modifications, consents or waivers in connection
with the Loan Documents, (ii) all reasonable fees and expenses of counsel for
the Co-Lead Arrangers and the Agent, during the existence of any Event of
Default, any Bank with respect to advising the Agent or, during the existence of
any Event of Default, any Bank as to its rights and responsibilities under the
Loan Documents and (iii) all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) of the
Co-Lead Arrangers, the Agent and each Bank in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of the Loan
Documents (including the enforcement of rights under this Section 8.04(a)) and
the other documents and instruments delivered hereunder and rights and remedies
hereunder and thereunder.
(b) If any payment or purchase of principal of, or Conversion of,
any Eurodollar Rate Advance is made other than on the last day of the Interest
Period for such Advance, as a result of a payment, purchase or Conversion
pursuant to Section 2.09, Section 2.10, Section 2.15, Section 2.16 or Section
2.17, acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, the Borrower shall, within 15 days after demand by any
Bank (with a copy of such demand to the Agent), pay to the Agent for the account
of such Bank any amounts required to compensate such Bank for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment, purchase or Conversion, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense reasonably incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Bank to fund or maintain such Advance. A certificate as to the amount of
such additional losses, costs or expenses, submitted to the Borrower and the
Agent by such Bank, shall be conclusive and binding for all purposes, absent
manifest error.
(c) The Borrower agrees to indemnify and hold harmless the Agent,
the Banks, the Co-Lead Arrangers and their respective directors, officers,
employees, affiliates, advisors, attorneys and agents (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, fees and expenses of counsel) for which
any of them may become liable or which may be incurred by or asserted against
any of the Indemnified Parties in connection with or arising out of (i) any Loan
Document or any other document or instrument delivered in connection herewith,
(ii) the existence of any condition on any property of the Borrower or any of
its Subsidiaries that constitutes a violation of any environmental protection
law or any other law, rule, regulation or order, or (iii) any investigation,
litigation, or proceeding, whether or not any of the Indemnified Parties is a
party
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thereto, related to or in connection with any of the foregoing or any Loan
Document, including, without limitation, any transaction in which any proceeds
of any Advance or Letter of Credit are applied, including, without limitation,
in each of the foregoing cases, any such claim, damage, loss, liability or
expense resulting from the negligence of any Indemnified Party, but excluding
any such claim, damage, loss, liability or expense sought to be recovered by any
Indemnified Party to the extent such claim, damage, loss, liability or expense
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnified Party.
(d) Except as set forth in the next succeeding sentence, each of
the Banks and the Agent and each of their respective directors, officers,
employees, affiliates, advisors and agents shall not be liable to the Borrower
for, and the Borrower agrees not to assert any claim for, amounts constituting
special, indirect, consequential, punitive, treble or exemplary damages arising
out of or in connection with any breach by such Bank or the Agent of any of its
obligations hereunder. If the Borrower becomes liable to a third party for
amounts constituting punitive, treble or exemplary damages as a result of a
breach of an obligation hereunder by a Bank or the Agent, as the case may be,
the Borrower shall be entitled to claim and recover (and does not waive its
rights to claim and recover) such amounts from such Bank or the Agent, as the
case may be, to the extent such Bank or the Agent, as the case may be, would be
liable to the Borrower for such amounts but for the limitation set forth in the
preceding sentence.
(e) Without prejudice to the survival of any other agreement of
the Borrower hereunder, all obligations of the Borrower under Section 2.12,
Section 2.13 and this Section 8.04 shall survive the termination of the
Commitments and this Agreement and the payment in full of all amounts hereunder
and under the Notes.
Section 8.05 Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making by the Required Banks of
the request or the granting by the Required Banks of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.01, each Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank (or by any branch, agency, subsidiary or other Affiliate of such
Bank, wherever located) to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any Note held by such Bank or any other Loan Document,
whether or not such Bank shall have made any demand under this Agreement or any
such Note or any other Loan Document and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Borrower after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which such Bank
may have.
Section 8.06 Limitation and Adjustment of Interest. (a) Notwithstanding
anything to the contrary set forth herein, in any other Loan Document or in any
other document or instrument, no provision of any of the Loan Documents or any
other instrument or document furnished pursuant hereto or in connection herewith
is intended or shall be construed to require the payment or permit the
collection of interest in excess of the maximum non-usurious rate permitted by
applicable law. Accordingly, if the transactions with any Bank contemplated
hereby would be usurious under applicable law, if any, then, in that event,
notwithstanding anything to the contrary in any Note payable to such Bank, this
Agreement or any other document or instrument, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under applicable law
that is contracted for, taken, reserved, charged or received by such Bank under
any Note payable to such Bank, this Agreement or any other document or
instrument shall under no circumstances exceed the maximum amount allowed by
such applicable law, and any
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excess shall be canceled automatically and, if theretofore paid, shall, at the
option of such Bank, be credited by such Bank on the principal amount of the
indebtedness owed to such Bank by the Borrower or refunded by such Bank to the
Borrower, and (ii) in the event that the maturity of any Note payable to such
Bank is accelerated or in the event of any required or permitted prepayment,
then such consideration that constitutes interest under law applicable to such
Bank may never include more than the maximum amount allowed by such applicable
law and excess interest, if any, to such Bank provided for in this Agreement or
otherwise shall be canceled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall, at the option of such Bank, be
credited by such Bank on the principal amount of the indebtedness owed to such
Bank by the Borrower or refunded by such Bank to the Borrower. In determining
whether or not the interest contracted for, taken, reserved, charged or received
by any Bank exceeds the maximum non-usurious rate permitted by applicable law,
such determination shall be made, to the extent that doing so does not result in
a violation of applicable law, by amortizing, prorating, allocating and
spreading, in equal parts during the period of the full stated term of the loans
hereunder, all interest at any time contracted for, taken, charged, received or
reserved by such Bank in connection with such loans.
(b) In the event that at any time the interest rate applicable to
any Advance made by any Bank would exceed the maximum non-usurious rate allowed
by applicable law, the rate of interest to accrue on the Advances by such Bank
shall be limited to the maximum non-usurious rate allowed by applicable law, but
shall accrue, to the extent permitted by law, on the principal amount of the
Advances made by such Bank from time to time outstanding, if any, at the maximum
non-usurious rate allowed by applicable law until the total amount of interest
accrued on the Advances made by such Bank equals the amount of interest which
would have accrued if the interest rates applicable to the Advances pursuant to
Article II had at all times been in effect. In the event that upon the final
payment of the Advances made by any Bank and termination of the Commitment of
such Bank, the total amount of interest paid to such Bank hereunder and under
the Notes is less than the total amount of interest which would have accrued if
the interest rates applicable to such Advances pursuant to Article II had at all
times been in effect, then the Borrower agrees to pay to such Bank, to the
extent permitted by law, an amount equal to the excess of (a) the lesser of (i)
the amount of interest which would have accrued on such Advances if the maximum
non-usurious rate allowed by applicable law had at all times been in effect or
(ii) the amount of interest which would have accrued on such Advances if the
interest rates applicable to such Advances pursuant to Article II had at all
times been in effect over (b) the amount of interest otherwise accrued on such
Advances in accordance with this Agreement.
Section 8.07 Binding Effect. This Agreement shall become effective as
provided in Section 3.01 hereof and thereafter shall be binding upon and inure
to the benefit of the Borrower and the Agent and each Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or obligations hereunder or under any other Loan Document or
any interest herein or therein without the prior written consent of all of the
Banks.
Section 8.08 Assignments and Participations. (a) Each Bank may assign to
one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment of all of a Bank's rights and obligations
under this Agreement, the amount of the Commitment of the assigning Bank being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with the Notes subject to such assignment and a
processing and recordation fee of $3,000. Upon such
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execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (y) the Bank assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of an assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
any other instrument or document furnished pursuant hereto or in connection
herewith or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant hereto or in connection herewith; (ii) such assigning Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any other Person or the
performance or observance by the Borrower or any other Person of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant hereto or in connection herewith; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the Financial Statements 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; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning 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, any of the other Loan Documents or any other instrument or
document; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as Agent on its
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Agent by the terms hereof or thereof, together with such
powers and discretion as are reasonably incidental thereto; (vii) such assignee
appoints and authorizes the Agent to take such action as the Agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
and discretion as are reasonably incidental thereto and (viii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(c) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Banks and
the Commitment of, and the principal amount of the Revolving Credit Advances
owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent 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 Borrower or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee representing that it is an Eligible Assignee,
together with the Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit E, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower shall execute and deliver to the Agent in
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exchange for the surrendered Notes a new Note payable to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Note payable to the order of the assigning Bank in
an amount equal to the Commitment retained by it hereunder (such new Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A).
(e) Each Bank may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Notes held by it); provided, however, that (i) such Bank's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the holder of any such Notes for all purposes of
this Agreement, (iv) the Borrower, the Agent 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 (v) the terms of any such
participation shall not restrict such Bank's ability to make any amendment or
waiver of this Agreement or any Note or such Bank's ability to consent to any
departure by the Borrower therefrom without the approval of the participant,
except that the approval of the participant may be required to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Each Issuing Bank may assign to an Eligible Assignee all of
its rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500.
(g) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.08, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Loan Party or any of its
Subsidiaries furnished to such Bank by or on behalf of the Borrower or any of
its Subsidiaries; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to comply with
Section 8.15.
(h) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Revolving Credit Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Board.
Section 8.09 Release of Collateral. (a) Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale or merger, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the Agent will, at the
Borrower's expense, execute and deliver to the Collateral Agent such documents
as the Collateral Agent may reasonably request to evidence the release of such
item of Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents.
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(b) Upon the occurrence of the Collateral Release Date, the Agent
will, at the Borrower's written request and expense, execute and deliver to the
Collateral Agent such documents as the Collateral Agent may reasonably request
to evidence the release of the Collateral from the assignment and security
interest granted under the Collateral Documents.
Section 8.10 No Liability of Issuing Banks. The Borrower assumes all risks
of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither any Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
Section 8.11 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
facsimile shall be as effective as delivery of a manually executed counterpart
of this Agreement.
Section 8.12 Judgment (a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase such Foreign Currency with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrower in respect of any sum due from
it in any currency (the "Primary Currency") to any Bank or the Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to
the extent that on the Business Day following receipt by such Bank or the Agent
(as the case may be), of any sum adjudged to be so due in such other currency,
such Bank or the Agent (as the case may be) may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency
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so purchased is less than such sum due to such Bank or the Agent (as the case
may be) in the applicable Primary Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or the
Agent (as the case may be) against such loss, and if the amount of the
applicable Primary Currency so purchased exceeds such sum due to any Bank or the
Agent (as the case may be) in the applicable Primary Currency, such Bank or the
Agent (as the case may be) aggress to remit to the Borrower such excess.
Section 8.13 Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York. Without
limiting the intent of the parties set forth above, (i) Chapter 346 of the Texas
Finance Code (formerly known as Chapter 15, Subtitle 3, Title 79, of the Revised
Civil Statutes of Texas, 1925), as amended (relating to revolving loans and
revolving triparty accounts), shall not apply to this Agreement, the Notes or
the transactions contemplated hereby, and (ii) to the extent that any Bank may
be subject to Texas law limiting the amount of interest payable for its account,
such Bank shall utilize the indicated (weekly) rate ceiling from time to time in
effect as provided in Chapter 303 of the Texas Finance Code (formerly known as
Article 5069-1.04 of the Revised Civil Statutes of Texas), as amended.
Section 8.14 Jurisdiction; Damages. To the fullest extent it may
effectively do so under applicable law, (i) each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its Property, to the
non-exclusive jurisdiction of any New York state court or federal court sitting
in New York City, and any appellate court from any appeal thereof, in any action
or proceeding arising out of or relating to this Agreement, any of the Notes,
any other Loan Document or any other instrument or document furnished pursuant
hereto or in connection herewith or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of such action or proceeding may be heard and
determined in any such court; (ii) each of the parties hereto hereby irrevocably
and unconditionally waives the defense of an inconvenient forum to the
maintenance of such action or proceeding and any objection that it may now or
hereafter have to the laying of venue of any such action or proceeding in any
such court; (iii) the Borrower hereby agrees that service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding may be made by mailing or delivering a copy of such process
to the Borrower at its address specified in Section 8.02; and (iv) each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing herein shall affect the
rights of any Bank or the Agent to serve legal process in any other manner
permitted by law or affect the right that any party hereto may otherwise have to
bring any action or proceeding relating to this Agreement, any of the Notes or
any other instrument or document furnished pursuant hereto or in connection
herewith in the courts of any other jurisdiction. Each of the Borrower, the
Agent and the Banks hereby irrevocably and unconditionally waives, to the
fullest extent it may effectively do so under applicable law, any right it may
have to claim or recover in any action or proceeding referred to in this Section
8.14 any exemplary or punitive damages. The Borrower hereby further irrevocably
waives, to the fullest extent it may effectively do so under applicable law, any
right it may have to claim or recover in any action or proceeding referred to in
this Section 8.14 any special or consequential damages.
Section 8.15 Confidentiality. Each Bank agrees that it will use reasonable
efforts, to the extent not inconsistent with practical business requirements,
not to disclose without the prior consent of the Borrower (other than to
employees, auditors, accountants, counsel or other professional advisors of the
Agent or any Bank) any information with respect to the Borrower or its
Subsidiaries or the Transaction which is furnished pursuant to this Agreement,
provided that any Bank may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate in any
report, statement or testimony submitted to or required by any municipal, state
or Federal regulatory body having or claiming to have jurisdiction over any Bank
or submitted to or required by the Federal
- 63 -
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(c) as may be required or appropriate in response to any summons or subpoena in
connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to any Bank, (e) to any assignee, participant,
prospective assignee, or prospective participant that has agreed to comply with
this Section 8.15, (f) in connection with the exercise of any remedy by any Bank
pertaining to this Agreement, any of the Notes or any other document or
instrument delivered in connection herewith, (g) in connection with any
litigation involving any Bank pertaining to any Loan Document or any other
document or instrument delivered in connection herewith, (h) to any Bank or the
Agent, or (i) to any Affiliate of any Bank.
Section 8.16 Patriot Act Notice. Each Bank and the Agent (for itself and
not on behalf of any Bank) hereby notifies the Loan Parties that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name
and address of such Loan Party and other information that will allow such Bank
or the Agent, as applicable, to identify such Loan Party in accordance with the
Patriot Act. The Borrower shall, and shall cause each other Loan Party to,
provide, to the extent commercially reasonable in light of applicable
restrictions or limitations under contract or law, regulation or governmental
guidelines, such information and take such actions as are reasonably requested
by the Agent or any Banks in order to assist the Agent and the Banks in
maintaining compliance with the Patriot Act.
[Remainder of page intentionally blank.]
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Section 8.17 Waiver of Jury Trial. Each of the Borrower, the Agent and
the Banks hereby irrevocably and unconditionally waives, to the fullest extent
it may effectively do so under applicable law, any and all right to trial by
jury in any action or proceeding arising out of or relating to this Agreement,
any of the Notes, any other Loan Document or any other instrument or document
furnished pursuant hereto or in connection herewith or the transactions
contemplated hereby.
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.
BORROWER:
HALLIBURTON COMPANY
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Taxpayer Identification of Borrower:
Address of Principal Place of Business
of Borrower:
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
* Bank signature pages omitted.
ANNEX A
"Applicable Commitment Fee Rate" means (i) as of any date until the Exit
Date, the rate per annum set forth in the table below under the heading
"Applicable Commitment Fee Rate" opposite the debt rating from S&P and Xxxxx'x,
respectively, in effect on such date for the senior unsecured long-term debt of
the Borrower, with the lower of the two ratings to be determinative in the case
where the ratings from S&P and Xxxxx'x would result in different Applicable
Commitment Fee Rates:
APPLICABLE COMMITMENT
S&P XXXXX'X FEE RATE
--- ------- --------
BBB+ or higher Baa1 or higher 0.125%
BBB Baa2 0.175%
BBB- Baa3 0.225%
Lower than BBB- Lower than Baa3 0.350%
and (ii) as of any date from and after the Exit Date, the rate per annum set
forth in the table below under the heading "Applicable Commitment Fee Rate"
opposite the debt rating from S&P and Xxxxx'x, respectively, in effect on such
date for the senior unsecured long-term debt of the Borrower, with the lower of
the two ratings to be determinative in the case where the ratings from S&P and
Xxxxx'x would result in different Applicable Commitment Fee Rates:
APPLICABLE COMMITMENT
S&P XXXXX'X FEE RATE
--- ------- --------
BBB+ or higher Baa1 or higher 0.100%
BBB Baa2 0.150%
BBB- Baa3 0.175%
Lower than BBB- Lower than Baa3 0.225%
"Applicable Margin" means, (i) as of any date until the Exit Date, the
rate per annum set forth in the table below opposite the debt rating from S&P
and Xxxxx'x, respectively, in effect on such date for the senior unsecured
long-term debt of the Borrower, with the lower of the two ratings to be
determinative in the case where the ratings from S&P and Xxxxx'x would result in
different Applicable Margins:
BASE RATE LIBOR RATE
S&P XXXXX'X LOANS LOANS
--- ------- ----- -----
BBB+ or higher Baa1 or higher 0% 1.00%
BBB Baa2 0.125% 1.125%
BBB- Baa3 0.375% 1.375%
lower than BBB- Lower than Baa3 1.00% 2.00%
and (ii) as of any date from and after the Exit Date, the rate per annum set
forth in the table below opposite the debt rating from S&P and Xxxxx'x,
respectively, in effect on such date for the senior unsecured long-term debt of
the Borrower, with the lower of the two ratings to be determinative in the case
where the ratings from S&P and Xxxxx'x would result in different Applicable
Margins:
BASE RATE LIBOR RATE
S&P XXXXX'X LOANS LOANS
--- ------- ----- -----
BBB+ or higher Baa1 or higher 0% 0.875%
BBB Baa2 0% 1.00%
BBB- Baa3 0.25% 1.25%
lower than BBB- Lower than Baa3 0.875% 1.875%
