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EXECUTION COPY
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SCHLUMBERGER TECHNOLOGY CORPORATION
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CREDIT AGREEMENT
Dated as of August 31, 1998
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$4,000,000,000
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BANQUE NATIONALE DE PARIS
THE CHASE MANHATTAN BANK
CITIBANK, N.A.
Agents
And
BANQUE NATIONALE DE PARIS
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
Lead Arrangers
And
ABN AMRO BANK N.V.
Arranger
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms 1
SECTION 1.02 Computation of Time Periods 16
SECTION 1.03 Accounting Terms and Fiscal Dates 16
SECTION 1.04 Classes and Types of Advances 16
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Committed Advances 17
SECTION 2.02 Making Committed Advances 17
SECTION 2.03 The Competitive Bid Advances 19
SECTION 2.04 Fees 21
SECTION 2.05 Termination or Reduction of the Commitments 22
SECTION 2.06 Repayment; Evidence of Debt 22
SECTION 2.07 Interest on Advances 23
SECTION 2.08 Interest Rate Determination 24
SECTION 2.09 Optional Conversion of Committed Advances;
Continuations 25
SECTION 2.10 Optional Prepayments of Committed Advances 26
SECTION 2.11 Increased Costs 26
SECTION 2.12 Illegality 28
SECTION 2.13 Payments and Computations 29
SECTION 2.14 Taxes 30
SECTION 2.15 Sharing of Payments, Etc. 33
SECTION 2.16 Use of Proceeds 33
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 33
SECTION 3.02 Conditions Precedent to Each Borrowing 35
SECTION 3.03 Determinations Under Section 3.01 35
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Company 35
ARTICLE V COVENANTS OF THE COMPANY
SECTION 5.01 Affirmative Covenants 37
SECTION 5.02 Negative Covenants 40
SECTION 5.03 Financial Covenants 42
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01 Events of Default 42
(i)
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ARTICLE VII THE FACILITY AGENT
SECTION 7.01 Authorization and Action 45
SECTION 7.02 Facility Agent's Reliance, Etc. 45
SECTION 7.03 Citibank and Affiliates 45
SECTION 7.04 Lender Credit Decision 46
SECTION 7.05 Indemnification 46
SECTION 7.06 Successor Facility Agent 46
SECTION 7.07 Agents and Lead Arrangers 47
ARTICLE VIII MISCELLANEOUS
SECTION 8.01 Amendments, Etc. 47
SECTION 8.02 Notices, Etc. 47
SECTION 8.03 No Waiver, Remedies 48
SECTION 8.04 Costs and Expenses 48
SECTION 8.05 Right of Set-off 50
SECTION 8.06 Binding Effect 50
SECTION 8.07 Assignments and Participations 50
SECTION 8.08 Confidentiality 52
SECTION 8.09 Governing Law 53
SECTION 8.10 Execution in Counterparts 53
SECTION 8.11 Jurisdiction, Etc. 53
SECTION 8.12 WAIVER OF JURY TRIAL 53
SECTION 8.13 Non-Reliance 54
Schedules
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Schedule 1.01 - Subordination Provisions
Schedule 2.01 - List of Commitments and Lending Offices
Schedule 4.01(e) - Certain Litigation
Schedule 4.01(g) - Certain Environmental Matters
Schedule 5.02 - Liens Securing Certain Debt
Exhibits
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Exhibit A-1 - Form of Notice of Revolving Credit Borrowing
Exhibit A-2 - Form of Notice of Term Borrowing
Exhibit B - Form of Assignment and Acceptance
Exhibit C-1 - Form of Opinion of General Counsel of the Company
Exhibit C-2 - Form of Opinion of Special New York Counsel to the Company
Exhibit D - Form of Opinion of Special New York Counsel to the Facility Agent
Exhibit E-1 - Form of Competitive Bid Request
Exhibit E-2 - Form of Competitive Bid
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(ii)
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CREDIT AGREEMENT
Dated as of August 31, 1998
SCHLUMBERGER TECHNOLOGY CORPORATION, a Texas corporation
(together with its successors and assigns, the "COMPANY"), the banks,
financial institutions and other institutional lenders (the "INITIAL
LENDERS") listed on the signature pages hereof, and CITIBANK, N.A.
("CITIBANK"), as facility agent (in such capacity, the "FACILITY AGENT") for
the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 CERTAIN DEFINED TERMS. As used in this
Agreement, 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):
"ADJUSTED CASH FLOW" means, for any period, for the Company and
its Subsidiaries (determined on a Consolidated basis), the sum of (i) Cash
Flow for such period PLUS (ii) the aggregate cash amount of Subordinated
advances and capital contributions made to the Company or any of its
Subsidiaries by Affiliates of the Company during such period MINUS (iii) the
aggregate amount of dividends or other distributions paid in cash with
respect to any shares of any class of Capital Stock of the Company or any
Subsidiary thereof (or payments in cash for the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of
Capital Stock of the Company or any option, warrant or other right to acquire
any such shares of Capital Stock of the Company) to Affiliates of the Company
during such period MINUS (iv) the aggregate cash amount of repayments of
principal of Subordinated Debt repaid by the Company or any of its
Subsidiaries to Affiliates of the Company during such period.
"ADVANCE" means a Term Advance, a Revolving Credit Advance or a
Competitive Bid Advance, and shall include the Bridge Advances.
"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. For purposes of this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common
control with") of a Person means the possession, direct or indirect, of the
power to vote 25% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
Notwithstanding the foregoing, (a) none of the Company and its Wholly-Owned
Subsidiaries shall be Affiliates of each other and (b) no individual shall be
an Affiliate of any Person solely by reason of his or her being a director,
officer or any employee of such Person.
"AGENTS" means Banque Nationale de Paris, The Chase Manhattan
Bank and Citibank.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Advance
and, in the case of a Competitive Bid Advance,
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the office of such Lender notified by such Lender to the Facility Agent as
its Applicable Lending Office with respect to such Competitive Bid Advance.
"APPLICABLE MARGIN" means (A) during the period from the date
of this Agreement to and including the Fixed Pricing Date, 0.475% per annum
for Committed Eurodollar Advances, 0.225% per annum for facility fees and
0.000% per annum for utilization fees (the "FIXED PRICING"), and (B) upon
delivery of Consolidated financial statements of the Company and its
Subsidiaries in accordance with Section 5.01(a)(i) or (a)(ii), as the case
may be, together with a certificate of a Responsible Officer as to the
Interest Coverage Ratio for the then most recently concluded Rolling Period
(a "PRICING CERTIFICATE"), the Applicable margin shall thereafter be
determined in accordance with the grid set forth below, in each case based
upon said financial statements and Pricing Certificate:
<TABLE>
<CAPTION>
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Applicable Margin (% p.a.)
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Committed
Interest Eurodollar Facility Utilization
Coverage Ratio Advance Fee Fee
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<S> <C> <C> <C>
Less than 3.0 to 1 0.550 0.350 0.100
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Less than 4.0 to 1
but greater than
or equal to 3.0 to 1 0.425 0.275 0.100
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Less than 5.0 to 1
but greater than
or equal to 4.0 to 1 0.325 0.225 0.100
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Less than 6.0 to 1
but greater than
or equal to 5.0 to 1 0.300 0.150 0.100
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Less than 8.0 to 1
but greater than
or equal to 6.0 to 1 0.275 0.125 0.100
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Greater than or equal to 8.0
to 1 0.275 0.125 0.050
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</TABLE>
PROVIDED that the following provisions shall apply during the period from the
Fixed Pricing Date until the delivery by the Company of the audited
Consolidated financial statements of the Company and its Subsidiaries for the
fiscal year of the Company ending December 31, 1998 (the "AUDITED 1998
FINANCIALS") and a Pricing Certificate for the Rolling Period ending on said
date: (1) the Fixed Pricing (irrespective of usage) shall continue to apply
after the Fixed Pricing Date until such time as
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the Company shall deliver to the Facility Agent either (i) an unaudited
Consolidated balance sheet of the Company and its Subsidiaries and related
Consolidated statements of income and cash flows for the fiscal year of the
Company ended December 31, 1998, certified (subject to normal year-end
adjustments and the absence of footnotes) as to conformity with GAAP by a
Responsible Officer ("UNAUDITED 1998 FINANCIALS"), together with a Pricing
Certificate for the Rolling Period ending on said date or (ii) the audited
1998 financials together with a Pricing Certificate for said Rolling Period;
(2) if after the Fixed Pricing Date the Company delivers unaudited 1998
financials, together with a Pricing Certificate, demonstrating that the
Applicable Margin, based on the Interest Coverage Ratio for the Rolling
Period ending on December 31, 1998, should be lower than the Fixed Pricing,
the Applicable Margin shall automatically be adjusted, with effect from the
delivery of such financials, to said lower rate until the delivery of the
audited 1998 financials; and (3) if the Company delivers the audited 1998
financials, together with a Pricing Certificate, demonstrating that the
Applicable Margin, based on the Interest Coverage Ratio for the Rolling
Period ending on December 31, 1998, should be higher than the rate otherwise
applicable pursuant to this definition, the Applicable Margin shall
automatically be retroactively adjusted, for the period from the Fixed
Pricing Date to the date of delivery of said financials, to such higher rate;
and PROVIDED FURTHER that any time when clause (B) of this definition is in
effect, (a) no change in the Applicable Margin shall be effective until three
Business Days after the date on which the Facility Agent receives the
financial statements required to be delivered pursuant to Section 5.01(a)(i)
or (a)(ii), as the case may be, and the Pricing Certificate demonstrating
such ratio and (b) the Applicable Margin shall be at the most onerous pricing
level set forth in the grid above for so long as the Company has not
submitted to the Facility Agent the information described in clause (a) of
this proviso within three Business Days of the date on which it is required
to do so under Section 5.01(a)(i) or (a)(ii), as the case may be.
"ARRANGER" means ABN Amro Bank N.V.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender, as assignor, and an assignee, and accepted by the
Facility Agent and the Company, in substantially the form of Exhibit B hereto.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the higher 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) 1/2 of one percent per annum above the Federal
Funds Rate.
"BASE RATE ADVANCE" means a Committed Advance that bears
interest based on the Base Rate.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWING" means a Term Borrowing, a Revolving Credit
Borrowing or a Competitive Bid Borrowing, and shall include the Bridge
Borrowings.
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"BRIDGE ADVANCE" means each Committed Advance, if any, made on
August 31, 1998.
"BRIDGE BORROWING" means each Committed Borrowing consisting of
Bridge Advances.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Advances, on which dealings
in Dollar deposits are carried on in the London interbank market.
"CAMCO" means Camco International Inc., a Delaware corporation
with its principal office in Houston, Texas.
"CAMCO CREDIT AGREEMENT" means the Credit Agreement dated as of
October 22, 1997 between Camco, the lenders party thereto, Bank of America
National Trust and Savings Association, Toronto Dominion (Texas), Inc. and
Wachovia Bank, N.A., as co-agents, The Bank of New York, as administrative
agent, and BNY Capital Markets, Inc., as arranger.
"CAMCO MERGER" means the merger of a Wholly-Owned Subsidiary of
the Company with and into Camco.
"CAPITAL LEASE OBLIGATIONS" means, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet for such Person under GAAP, and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"CAPITAL STOCK" of any Person means any and all shares,
interests, participation, or other equivalent (however designated) of such
Person's capital stock and any rights (other than debt securities convertible
into or exchangeable for capital stock), warrants or options to purchase the
foregoing whether now outstanding or issued after the date hereof.
"CASH FLOW" means, for any period, for the Company and its
Subsidiaries (determined on a Consolidated basis), the sum of (i) net income
before discontinued operations (exclusive of (x) extraordinary items and
(y) the income or loss of any Person accounted for by the Company on the
equity method) for such period plus (ii) to the extent deducted in
determining net income, the sum for such period of (x) depreciation and
amortization expense, (y) income tax expense and (z) Interest Expense;
PROVIDED that "Cash Flow" shall exclude all reasonable costs and expenses
relating to (A) the Camco Merger and the transactions directly relating
thereto and (B) this Agreement and the financing contemplated hereby.
"CLASS", when used in reference to any Advances or a Commitment
to make Advances or any Borrowing, refers to whether such Advances, or the
Advances constituting such Borrowing, are Revolving Credit Advances, Term
Advances or Competitive Bid Advances.
"CITIBANK" means Citibank, N.A.
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"COMMITTED" means, with respect to any Advance, that such Advance is
either a Revolving Credit Advance or a Term Advance and, with respect to any
Borrowing, that such Borrowing is either a Revolving Credit Borrowing or a
Term Borrowing.
"COMMITMENT" means a Revolving Credit Commitment or a Term Commitment.
"COMPETITIVE BID" means an offer by a Lender to make a Competitive Bid
Advance in accordance with Section 2.03.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to the Company as
part of a Competitive Bid Borrowing resulting from the auction bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a
Eurodollar Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such borrowing has been accepted
under the auction bidding procedure described in Section 2.03.
"COMPETITIVE BID MARGIN" means the margin above or below the Eurodollar
Rate that a Lender offers in making a Competitive Bid.
"COMPETITIVE BID RATE" means, with respect to any Competitive Bid, the
Competitive Bid Margin or the Fixed Rate, as applicable, offered by the
Lender making such Competitive Bid.
"COMPETITIVE BID REDUCTION" has the meaning specified in Section 2.01.
"COMPETITIVE BID REQUEST" means a request by the Company for Competitive
Bids in accordance with Section 2.03.
"CONFIDENTIAL INFORMATION" means information that the Company furnishes
to the Facility Agent or any Lender in a writing designated as confidential or
that a reasonable person would believe is confidential or proprietary in
nature, but does not include any such information that (a) is or becomes
generally available to the public (other than as a result of a breach by the
Facility Agent or any Lender of its confidentiality obligations hereunder or
under any confidentiality agreement with or for the benefit of the Company in
connection with the Commitments hereunder or the transactions contemplated
hereby) or (b) is or becomes available to the Facility Agent or any Lender
from a source other than the Company that is not, to the best of the Facility
Agent's or such Lender's knowledge, acting in violation of a confidentiality
agreement with or for the benefit of the Company or any of its Affiliates or
otherwise legally prohibited from disclosing such information.
"CONSOLIDATED" refers to the consolidation of financial accounts in
accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means, at any date, for the Company and
its Subsidiaries (determined on a Consolidated basis), the sum of the
following:
(a) total assets, MINUS
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(b) the sum of the following: the book value of all Property that
should be classified as intangibles (without duplication of deductions in
respect of items already deducted in arriving at total assets) but in any
event including goodwill, minority interests, research and development costs,
trademarks, trade names, copyrights, patents and franchises, unamortized debt
discount and expense, all reserves for bad debts and inventory obsolescence,
and any write-up in the book value of Property resulting from a revaluation
thereof subsequent to December 31, 1997.
"CONTINUATION", "CONTINUE" and "CONTINUED" each refers to a continuation
of a Eurodollar Advance from one Interest Period to the next Interest Period
pursuant to Section 2.09.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
an Advance of one Type into an Advance of the other Type pursuant to Section
2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of Property or services (other than trade payables
and other accounts payable incurred in the ordinary course of business and
deferred compensation), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
Property), (e) all Capital Lease Obligations of such Person, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all net
obligations of such Person in respect of Hedge Agreements, (h) all Debt of
others referred to in clauses (a) through (g) above or clause (i) below
guaranteed directly or indirectly in any manner by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds for
the payment or purchase of such Debt, (2) to purchase, sell or lease (as
lessee or lessor) Property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for Property or
services irrespective of whether such Property is received or such services
are rendered) or (4) otherwise to assure a creditor against loss, and (j) all
Debt referred to in clauses (a) through (h) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"DEFAULT" means any Event of Default or any event that would, unless
cured or waived, constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
"DOLLARS" and "$" mean lawful currency of the United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name
on Schedule 2.01 or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Company and the Facility Agent.
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"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or determination
relating to the environment, health, safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA GROUP" means the Company and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D.
"EURODOLLAR", when used in reference to any Advance or Borrowing, refers
to whether such Advance, or the Advances constituting such Borrowing, are
bearing interest at a rate determined by reference to the Eurodollar Rate.
"EURODOLLAR ADVANCE" means a Committed Advance that bears interest as
provided in Section 2.07(b) or a Competitive Bid Advance that bears interest
as provided in Section 2.07(e).
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time specify to the Company and the Facility Agent.
"EURODOLLAR RATE" means, for any Interest Period for any Eurodollar
Advance (a) the rate or, if more than one rate appears, the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/100%), as calculated by the
Facility Agent, of the respective rates per annum for the offering of
deposits in Dollars appearing on the Screen at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior to
the first day of such Interest Period as LIBOR having a term comparable to
such Interest Period; or (b) if the Screen shall cease to report LIBOR, the
Eurodollar Rate shall mean, for such Interest Period, the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/100 of 1%), as calculated by
the Facility Agent, of the rates per annum quoted by the Reference Banks at
approximately 11:00 a.m. London time (or as soon thereafter as practicable)
two Business Days prior to the first day of such Interest Period for the
offering by the Reference Banks to lending banks in the London interbank
market of deposits in Dollars having a term comparable to such Interest
Period and in an amount equal to $5,000,000.
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for any Interest
Period for any Committed Eurodollar Advance 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 Board for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal
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reserve requirement) for such Lender 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.
"EXISTING CREDIT AGREEMENT" means the $500,000,000 Credit Agreement
dated as of December 31, 1993 among the Company, certain banks listed
therein, The Chase Manhattan Bank (National Association) and Morgan Guaranty
Trust Company of New York, as co-arrangers, and Morgan Guaranty Trust Company
of New York, as administrative agent.
"EXPOSURE" means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender's Revolving Credit Advances and
Term Advances at such time.
"FACILITY AGENT'S ACCOUNT" means the account of the Facility Agent
maintained by the Facility Agent at Citibank's office at Two Penn's Way, Suite
200, New Castle, Delaware 19720, ABA #021 0000 89, Account No. 36852248,
Attention: Rupal Hirwe.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period 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 Facility Agent from three Federal
funds brokers of recognized standing selected by it.
"FINAL MATURITY DATE" means the date five years after the date hereof,
PROVIDED THAT, if such date is not a Business Day, the "Final Maturity Date"
shall be the next preceding Business Day.
"FISCAL DATE" means the last day of each fiscal quarter of the Company.
"FIXED PRICING DATE" means the date six months after the date hereof,
PROVIDED THAT, if such date is not a Business Day, the Fixed Pricing Date
shall be the next succeeding Business Day.
"FIXED RATE" means, with respect to any Competitive Bid Advance (other
than a Eurodollar Competitive Bid Advance), the fixed rate of interest per
annum specified by the Lender making such Competitive Bid Advance in its
related Competitive Bid.
"FIXED RATE ADVANCE" means a Competitive Bid Advance bearing interest at
a Fixed Rate.
"FUNDED DEBT" means, for the Company and its Subsidiaries (determined on
a Consolidated basis), all Debt of the types referred to in clauses (a)
through (e) of the definition of "Debt", other than Subordinated Funded Debt
owing to any Affiliate of the Company; PROVIDED that solely for purposes of
Section 5.03, "Funded Debt" shall exclude Rigs Capital Lease Obligations.
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"FUNDED DEBT TO ADJUSTED CASH FLOW RATIO" means, as at any Fiscal Date,
the ratio of:
(a) Funded Debt as of such Fiscal Date TO
(b) (i) Adjusted Cash Flow for the Rolling Period ending on
such Fiscal Date MULTIPLIED BY (in the case of each of the first
three Rolling Periods) (ii) a fraction, the numerator of which is
equal to four and the denominator of which is equal to the number of
complete fiscal quarters in such Rolling Period.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"HAZARDOUS MATERIALS" means petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
radon gas and any other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic", or words of similar
import, under any federal, state, local or foreign statute, law, ordinance,
rule, regulation or code.
"HEDGE AGREEMENTS' means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"INFORMATION MEMORANDUM" means the confidential information memorandum
dated July 1998 used by the Lead Arrangers in connection with the syndication
of the Commitments.
"INTEREST COVERAGE RATIO" means, at any Fiscal Date, the ratio of (a)
Adjusted Cash Flow for the Rolling Period ending on such Fiscal Date to (b)
Interest Expense for such Rolling Period.
"INTEREST EXPENSE" means, for any period, the sum, for the Company and
its Subsidiaries (determined on a Consolidated basis), of the following: (a)
all interest expense (net of interest income) in respect of Funded Debt
(including, without limitation, the interest component of any payments in
respect of Capital Lease Obligations) accrued or capitalized during such
period PLUS (b) the net amount payable (or MINUS the net amount receivable)
under Hedge Agreements during such period (whether or not actually paid or
received during such period): PROVIDED that Interest Expense shall exclude
all interest expense in respect of Subordinated Debt owing to any Affiliate
of the Company; and PROVIDED FURTHER that, solely for purposes of Section
5.03, "Interest Expense" shall exclude the interest component of any payments
in respect of Rigs Capital Lease Obligations. For the avoidance of doubt, the
term "Interest Expense" shall not include fees payable
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in connection with the Camco Merger and the transactions directly relating
thereto, or in connection with this Agreement and the financing contemplated
hereby.
"INTEREST PERIOD" means, (a) with respect to any Committed Eurodollar
Borrowing, the period commencing on the date of such Eurodollar Borrowing or
the date of the Conversion of any Base Rate Borrowing into or Continuation
of any Committed Eurodollar Borrowing as a Committed Eurodollar Borrowing
and ending on the last day of the period selected by the Company pursuant to
the provisions hereof and, thereafter, 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 Company pursuant to the provisions
hereof, (b) with respect to any Fixed Rate Borrowing, the period (which shall
not be less than seven days) commencing on the date of such Borrowing and
ending on the date specified in the applicable Competitive Bid Request and (c)
with respect to any Competitive Bid Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the last day of the
period selected by the Company pursuant to the provisions hereof. The
duration of each Interest Period applicable to Eurodollar Borrowings shall be
one, two, three or six months (or (i) in the case of Competitive Bid
Borrowings, nine or twelve months or (ii) in the case of Committed Borrowings,
if deposits in Dollars are readily available in the London interbank market
for such periods, nine or twelve months), as the Company may select pursuant
to the provisions hereof; PROVIDED HOWEVER, that:
(i) the Company may not select any Interest Period that ends after
the Final Maturity Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Advances constituting part of the same Borrowing shall be of the same
duration;
(iii) 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, HOWEVER, 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;
(iv) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month; and
(v) until the earlier of (x) the date 90 days after the date hereof
and (y) the date on which the Facility Agent (after consultation with the
Lead Arrangers) notifies the Company that the general syndication of the
credit extended under this Agreement has been completed, the Company may
not select Interest Periods for Committed Eurodollar Borrowings in excess
of one month.
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Notwithstanding the foregoing, the Interest Period, in the case of each
Bridge Borrowing, shall be the period commencing on the date of such Bridge
Borrowing and ending on the next succeeding Business Day.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"LEAD ARRANGERS" means Banque Nationale de Paris, Chase Securities Inc.
and Citicorp Securities, Inc.
"LENDERS" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Sections 2.05(b) or 8.07.
"LIBOR" means, for any Interest Period, the rate at which deposits in
Dollars are offered to leading banks in the London interbank market.
"LIEN" means any lien, security interest or other charge or encumbrance
of any kind, or any preferential arrangement having the practical effect of a
lien or security interest, including, without limitation, the lien or
retained security title of a conditional vendor.
"MARGIN STOCK" shall mean "margin stock" within the meaning of Regulations
U and X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
Property, financial condition or results of operations the Company and its
Subsidiaries taken as a whole (after giving PRO FORMA effect to the
consummation of the Camco Merger and the transactions directly relating
thereto and of this Agreement and the financing contemplated hereby), (b) the
rights and remedies of the Facility Agent or the Lenders under this Agreement
or (e) the ability of the Company to perform its obligations under this
Agreement.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan,
within the meaning of Section 4001(a)(3) of ERISA, to which any member of the
ERISA Group (i) is then making or accruing an obligation to make
contributions or (ii) has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period and in respect of
which any member of the ERISA Group could reasonably be expected to have
liability under Title IV of ERISA.
"NOTICE OF BORROWING" has the meaning specified in Seciton 2.02(a).
"PARENT" means Schlumberger N.V. (Schlumberger Limited), a corporation
organized and existing under the law of the Netherlands Antilles.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" means any of the following:
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(a) Liens for taxes, assessments and governmental charges or levies
to the extent payable thereafter without penalty or not required to be
paid under Section 5.01(b).
(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 (i) are not
overdue for a period of more than 90 days or (ii) are being contested in
good faith and by appropriate proceedings and as to which appropriate
reserves are being maintained;
(c) pledges or deposits to secure obligations under workers'
compensation laws, unemployment insurance laws or other similar
legislation or to secure public or statutory obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, leases, contracts (other than for the repayment of
borrowed money), surety and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business;
(e) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor
or sublessor may be subject that is incurred in the ordinary course of
business;
(f) Liens in favor of customs and revenue authorities arising as a
matter of law or pursuant to a bond to secure payment of customs duties
in connection with the importation of goods;
(g) customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions in which such cash is maintained in
the ordinary course of business;
(h) Liens arising out of judgments or awards that do not constitute
an Event of Default under Section 6.01(h) and in respect of which the
Company or any of its Subsidiaries subject thereto shall be prosecuting
an appeal or proceedings for review in good faith and shall be maintaining
appropriate reserves with respect to any such judgment or award;
(i) Liens securing reimbursement obligations under commercial
letters of credit incurred in the ordinary course of business;
(j) easements, operating agreements, covenants, conditions, rights
of way, survey exceptions, sewers, electric lines, licenses, telegraph and
telephone lines, zoning restrictions and other encumbrances on title to,
or restrictions on the use of, real property that do not render title to
the property encumbered thereby unmarketable or adversely affect the use
of such property for its present purposes in any material manner; and
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(k) Liens existing on the date of this Agreement securing
obligations (other than Debt of the types described in clauses (a) and
(b) of the definition of "Debt") that are incurred in the ordinary course
of business and are not likely to be material to the Property, financial
condition or results of operations of the Company and its Subsidiaries
taken as a whole.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a nation or
Governmental Authority.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan), which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any Person
which was at such time a member of the ERISA Group and in respect of which
any member of the ERISA Group could reasonably be expected to have liability
under Title IV of ERISA.
"PRINCIPAL OFFICE" means Citibank's principal office at 399 Park Avenue,
New York, New York 10043.
"PROPERTY" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"REFERENCE BANKS" means ABN Amro Bank N.V., Banque Nationale de Paris,
The Chase Manhattan Bank and Citibank (and any successors thereof).
"REGISTER" has the meaning specified in Section 8.07(e).
"REGULATIONS A. D. U and X" means Regulations A, D, U and X,
respectively, of the Board, as in effect from time to time.
"REQUIRED LENDERS" means, at any time, Lenders having Exposures and
unused Commitments representing more than 50% of the sum of the total
Exposures and unused Commitments at such time.
"RESPONSIBLE OFFICER" means (i) the president, any vice president or the
controller of the Company, (ii) any officer succeeding to the
responsibilities of any of the officers listed in clause (i) or (ii) any other
officer of the Company who is responsible for compliance by the Company with
the requirements of this Agreement.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to the Company
pursuant to Section 2.01(a).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders
pursuant to Section 2.01.
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"REVOLVING CREDIT COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving credit Advances during
the period from the Effective Date until the Final Maturity Date in an
aggregate amount up to the amount of such commitment (or the maximum aggregate
amount of Revolving Credit Advances to be made by such Lender hereunder, as
the context may require), as such commitment may be (a) reduced from time to
time pursuant to Section 2.05 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 8.07. The
initial amount of each Lender's Revolving Credit Commitment is set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Credit Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Credit Commitments is
$1,000,000,000.
"REVOLVING CREDIT LENDER" means each Lender specified in Schedule 2.01
(or in an Assignment and Acceptance pursuant to which it becomes a Lender
hereunder) as having a Revolving Credit Commitment and, after the expiration
or termination of the Revolving Credit Commitments, each Lender holding a
Revolving Credit Advance.
"RIGS CAPITAL LEASE OBLIGATIONS" means Debt in the form of Capital
Lease Obligations of the Company or of a Subsidiary thereof to finance the
construction of two new-generation Sedco Express deepwater semisubmersible
offshore rigs, the amount of which is anticipated to be approximately
$400,000,000.
"ROLLING PERIOD: means:
(a) with respect to determinations made as at December 31, 1998, the
period commencing on October 1, 1998 and ending on December 31, 1998;
(b) with respect to determinations made as at March 31, 1999, the
period commencing on October 1, 1998 and ending on March 31, 1999;
(c) with respect to determinations made as at June 30, 1999, the
period commencing on October 1, 1998 and ending on June 30, 1999; and
(d) with respect to determinations made on or after September 30, 1999,
the period of four consecutive complete fiscal quarters ending on or most
recently ended prior to such date.
"SCREEN" means display page 3750 of the Telerate Service of Bridge
Information Services (or any successor or substitute page).
"SIGNIFICANT SUBSIDIARY" means at any time any Subsidiary that would
at such time constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission as in effect on the
Effective Date) of the Company.
"SUBORDINATED" means, with respect to any Debt of the Company, Debt
that is subordinated in right of payment to the principal of and interest on
all Advances and all fees and other amounts payable by the Company hereunder
on terms and conditions substantially as set forth in Schedule 1.01.
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"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding Voting Stock (irrespective of
whether at the time Capital Stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership
or joint venture or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"TERM ADVANCE" means an advance made pursuant to Section 2.01(b).
"TERM ADVANCE COMMITMENT TERMINATION DATE" means December 31, 1998.
"TERM BORROWING" mans a borrowing consisting of simultaneous Term
Advances of the same Type.
"TERM COMMITMENT" means, with respect to each Lender, the commitment,
if any, of such Lender to make Term Advances during the period from the
Effective Date until the Term Advance Commitment Termination Date in an
aggregate amount up to the amount of such commitment (or the maximum principal
amount of the Term Advances to be made by such Lender hereunder, as the
context may require), as such commitment may be (a) reduced from time to time
pursuant to Section 2.05 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 8.07. The
initial amount of each Lender's Term Commitment is set forth on Schedule 2.01
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Term Commitment, as applicable. The initial aggregate amount of
the Lenders' Term Commitments is $3,000,000,000.
"TERM LENDERS" means each Lender specified in Schedule 2.01 (or in an
Assignment and Acceptance pursuant to which it becomes a Lender hereunder) as
having a Term Commitment and, after the expiration or termination of the Term
Commitments, each Lender holding a Term Advance.
"TYPE", when used in reference to any Advance or Borrowing, refers to
whether the rate of interest on such Advance, or on the Advances constituting
such Borrowing, is determined by reference to the Eurodollar Rate or the Base
Rate or, in the case of a Competitive Bid Advance or Borrowing, the Eurodollar
Rate or a Fixed Rate.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions used
for funding the Plan pursuant to Section 412 of the Internal Revenue Code,
exceeds (ii) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all as determined by the Plan actuary as of the Plan's then
most recent valuation date.
"VOTING STOCK" means Capital Stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to
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vote for the election of directors (or persons performing similar functions)
of such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary all of the outstanding
Capital Stock (other than, in the case of a corporation or other similar legal
entity, directors' qualifying shares or shares held by residents of the
jurisdiction in which such corporation or other similar legal entity is
organized pursuant to a requirement of the law of such jurisdiction) of which
shall at the time be owned by the Company and/or by one or more Wholly-Owned
Subsidiaries.
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 mean "to but excluding".
SECTION 1.03 ACCOUNTING TERMS AND FISCAL DATES.
(a) 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, HOWEVER, that, if any changes in
accounting principles from those used in the preparation of the Consolidated
financial statements of the Company and its Subsidiaries for the fiscal year
of the Company ended December 31, 1997 are applied in the Consolidated
financial statements of the Company delivered under Section 5.01(a)(i) or
5.01(a)(ii) and such changes would affect (or would result in a change in the
method of calculation of) any of the covenants set forth in Section 5.03 in
any material respect, or any of the defined terms related thereto contained in
Section 1.01, then upon the request of the Required Lenders, the Company, the
Facility Agent and the Lenders shall enter into negotiations in good faith, if
and to the extent necessary, to amend in accordance with Section 8.01 all such
covenants or terms as would be affected by such changes in GAAP in such manner
as would maintain the economic terms of such covenants as in effect under this
Agreement, prior to giving effect to the occurrence of any such changes; and
PROVIDED FURTHER, HOWEVER, that until the amendment of the covenants and the
defined terms referred to in the immediately preceding PROVISO becomes
effective, all covenants and defined terms shall be performed, observed and
determined, and any determination of compliance with any such covenant shall
be made, as though no such changes in accounting principles had been made.
(b) To enable the consistent determination of compliance with the
covenants set forth in Section 5.03 and of the Applicable Margin, the Company
will not change the last day of its fiscal year from December 31 of each year
or the last days of its first three fiscal quarters in each of its fiscal
years from March 31, June 30 and September 30 of each year, respectively.
SECTION 1.04 CLASSES AND TYPES OF ADVANCES. For purposes of this
Agreement, Advances may be classified and referred to by Class (e.g., a
"Revolving Credit Advance") or by Type (e.g., a "Eurodollar Advance") or by
Class and Type (e.g., a "Eurodollar Revolving Credit Advance"). Borrowings
also may be classified and referred to by Class (e.g., a "Revolving Credit
Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Credit Borrowing"). Commitments also may be
classified and referred to by Class (e.g., a "Revolving Credit Commitment").
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 THE COMMITTED ADVANCES.
(a) REVOLVING CREDIT FACILITY. (i) Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances to the Company from time to time on any Business Day during the
period from the Effective Date until the Final Maturity Date in an aggregate
amount not to exceed at any time such Lender's Revolving Credit Commitment,
PROVIDED that the aggregate amount of the Revolving Credit Commitments of the
Lenders shall be deemed used from time to time to the extent of the aggregate
amount of the Competitive Bid Advances then outstanding and such deemed use
of the aggregate amount of the Revolving Credit Commitments shall be
allocated among the Lenders ratably according to their respective Revolving
Credit Commitments (such deemed use of the aggregate amount of the Revolving
Credit Commitments being a "COMPETITIVE BID REDUCTION").
(ii) Each Revolving Credit Borrowing shall consist of Revolving
Credit Advances of the same Type made on the same day by the Revolving Credit
Lenders ratably according to their respective Revolving Credit Commitments.
Within the limits of each Lender's Revolving Credit Commitment, the Company
may borrow under this Section 2.01(a), prepay pursuant to Section 2.10 and
reborrow under this Section 2.01(a).
(b) TERM LOAN FACILITY. (i) Each Team Lender severally agrees, on the
terms and conditions hereinafter set forth, to make advances to the Company
from time to time on any Business Day during the period from the Effective
Date until the Term Advance Commitment Termination Date in an aggregate
amount not to exceed such Lender's Term Commitment.
(ii) Each Term Borrowing shall consist of Term Advances of the same
Type made on the same day by the Term Lenders ratably according to their
respective Term Commitments.
SECTION 2.02 MAKING COMMITTED ADVANCES.
(a) Each Committed Borrowing shall be made on notice, given not later
than 12:00 noon (New York City time) on the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing comprising
Eurodollar Advances, or 10:00 a.m. (New York City time) on the date of the
proposed Borrowing in the case of a Borrowing comprising Base Rate Advances,
except that in the case of the Bridge Borrowings, such notice may be given
not later than 10:30 a.m. (New York City time) on the first Business Day
prior to the date of such Borrowings, in each case by the Company to the
Facility Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telecopy or by telephone, confirmed promptly by hand
delivery or telecopy, in substantially the form of the Exhibit A-1 for
Revolving Credit Borrowings, or Exhibit A-2 for Term Borrowings, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Advances
constituting such Borrowing, (iii) aggregate amount of such Borrowing and
(iv) in the case of a Borrowing consisting of Eurodollar Advances, initial
Interest Period for each such Advance (PROVIDED that, if the
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Company fails to select an Interest Period, the Interest Period shall be one
month and PROVIDED FURTHER that, if the Company selects an Interest Period of
nine or twelve months, the Company shall simultaneously specify, as an
alternative in the event that the Facility Agent determines in accordance
herewith that deposits in Dollars are not readily available for the period
selected, at the Company's option, an Interest Period of one, two, three or
six months or a Base Rate Borrowing). Each Lender shall, before 12:00 noon
(New York City time) on the date of such Borrowing, make available for
account of its Applicable Lending Office to the Facility Agent at the
Facility Agent's Account, in same day funds, such Lender's ratable portion of
such Borrowing. After the Facility Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Facility Agent will make such same day funds available to the Company at the
Company's account at Citibank's Principal Office or as otherwise specified by
the Company in the related Notice of Borrowing.
(b) Each Committed Borrowing must be in an aggregate minimum amount of
$10,000,000 and in multiples of $1,000,000 in excess thereof (or, if less, an
aggregate amount equal to the amount by which the aggregate amount of a
proposed Competitive Bid Borrowing requested by the Company exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the
Lenders and accepted by the Company in respect of such Competitive Bid
Borrowing, if such Competitive Bid Borrowing is made on the same date as such
Revolving Credit Borrowing).
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Company. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Advances, the Company shall
indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date of
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense (not including loss of anticipated profit) incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Facility Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available
to the Facility Agent such Lender's ratable portion of such Borrowing, the
Facility Agent may assume that such Lender has made such portion available to
the Facility Agent on the date of such Borrowing in accordance with subsection
(a) of this Section 2.02 and the Facility Agent may, in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent that such Lender shall not have so much such
ratable portion available to the Facility Agent, such Lender and the Company
severally agree to repay to the Facility Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Company until the date such amount
is repaid to the Facility Agent, at (i) in the case of the Company, the
interest rate applicable at the time to Advances constituting such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Facility Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement and shall be made available in same day funds for
account of its Applicable Lending Office to the Company's account at
Citibank's Principal Office.
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(e) The failure of any Lender to make the Advance to be made by
it as part of any Committed Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date of such
Committed Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on the
date of any Committed Borrowing.
SECTION 2.03 THE COMPETITIVE BID ADVANCES.
(a) Subject to the terms and conditions set forth herein, from
time to time on any Business Day during the period from the Effective Date
until the Final Maturity Date, the Company may request Competitive Bids and
may (but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Bid Advances; PROVIDED that the sum of the aggregate unpaid
principal amount of Revolving Credit Advances plus the aggregate unpaid
principal amount of Competitive Bid Advances at any time outstanding shall
not exceed the total Revolving Credit Commitments. To request Competitive
Bids, the Company shall notify the Facility Agent of such request by
telephone, (i) in the case of a Eurodollar Competitive Bid Borrowing, not
later than 12:00 noon, New York City time, four Business Days before the
proposed date of such Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the proposed date of such Borrowing. Each such telephonic Competitive
Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Facility Agent of a written Competitive Bid Request substantially in the form
of Exhibit E-1 signed by the Company. Each such telephonic and written
Competitive Bid Request shall specify the following information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(v) the interest payment date or dates relating thereto; and
(vi) other terms (if any) to be applicable to such Borrowing.
Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Facility Agent shall notify the Revolving
Credit Lenders of the details thereof by telecopy, inviting the Revolving
Credit Lenders to submit Competitive Bids.
(b) Each Revolving Credit Lender may (but shall not have any
obligation to) irrevocably make one or more Competitive Bids to the Company
in response to a Competitive Bid Request. Each Competitive Bid by a Revolving
Credit Lender must be substantially in the form of Exhibit E-2 and must be
received by the Facility Agent by telecopy, in the case of a Eurodollar
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before the proposed date of such Borrowing, and in the case of
a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Borrowing. Competitive Bids that do not
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conform substantially to Exhibit E-2 may be rejected by the Facility Agent,
and the Facility Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount
(which shall be a minimum of $10,000,000 and an integral multiple of
$1,000,000, and which may equal the entire principal amount of the Competitive
Borrowing requested by the Company) of the Competitive Bid Advance or
Advances that the Lender is willing to make and which amounts may exceed such
Lender's Revolving Credit Commitment, if any, so long as such amounts do not
exceed the aggregate Revolving Credit Commitments of the Lenders (computed
without regard to any Competitive Bid Reduction), (ii) the Competitive Bid
Rate or Rates at which the Lender is prepared to make such Competitive Bid
Advance or Advances (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places), (iii) the Interest Period
applicable to each such Competitive Bid Advance and the last day thereof and
(iv) the Applicable Lending Office with respect to such Competitive Bid
Advance.
(c) The Facility Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in
each Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Company may either cancel any Competitive Bid Request or accept or reject any
Competitive Bid. The Company shall notify the Facility Agent by telephone,
confirmed by telecopy in a form approved by the Facility Agent, whether and
to what extent it has decided to accept or reject each Competitive Bid, in
the case of a Eurodollar Competitive Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the proposed date of such
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 11:00
a.m., New York City time, on the proposed date of such Borrowing, PROVIDED
that (i) the failure of the Company to give such notice shall be deemed to be
a rejection of each Competitive Bid, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company
rejects a Competitive Bid made at a lower Competitive Bid Rate (unless the
Competitive Bid made at such lower rate includes, pursuant to
Section 2.03(a)(vi), other terms that the Company deems undesirable), (iii)
the aggregate amount of the Competitive Bids accepted by the Company shall
not exceed the aggregate amount of the requested Competitive Bid Borrowing
specified in the related Competitive Bid Request and (iv) to the extent
necessary to comply with clause (iii) above, the Company may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance,
in the case of multiple Competitive Bids at such Competitive Bid Rate, shall
be made pro rata in accordance with the amount of each such Competitive Bid.
A notice of acceptance of a Competitive Bid given by the Company pursuant to
this paragraph shall be irrevocable.
(e) The Facility Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and,
if so, the amount and Competitive Bid Rate so accepted), and each successful
bidder will thereupon become bound, subject to the terms and conditions
hereof, to make the Competitive Bid Advance in respect of which its
Competitive Bid has been accepted.
(f) If the Facility Agent shall elect to submit a Competitive
Bid in its capacity as a Revolving Credit Lender, it shall submit such
Competitive Bid directly to the Company at least one quarter of an hour
earlier than the time by which the other Lenders are required to submit their
Competitive Bids to the Facility Agent pursuant to paragraph (b) of this
Section.
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(g) Each Revolving Credit Lender that is to make a Competitive
Bid Advance as part of such Competitive Bid Borrowing shall, before 12:00
noon (New York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Facility Agent, make available for
account of its Applicable Lending Office to the Facility Agent at the
Facility Agent's Account, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable conditions set
forth in Article III and after receipt by the Facility Agent of such funds,
the Facility Agent will make such funds available to the Company at the
Facility Agent's address referred to in Section 8.02 or as otherwise
specified by the Company in the related Competitive Bid Request. Promptly
after each Competitive Bid Borrowing the Facility Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
SECTION 2.04 FEES.
(a) FACILITY FEE. The Company agrees to pay to the Facility
Agent for account of each Lender a facility fee, which shall accrue at a rate
per annum equal to the Applicable Margin for facility fees, on the daily
aggregate amount of such Lender's Commitments irrespective of usage from the
date of this Agreement in the case of each Initial Lender, and from the
effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender, until the Final
Maturity Date; PROVIDED that, without limiting the foregoing, facility fee
shall accrue on (i) the aggregate principal amount of each Lender's Term
Advances from the Term Advance Commitment Termination Date until such Term
Advances are paid in full and (ii) the aggregate principal amount of each
Lender's Revolving Credit Advances from the termination of the Revolving
Credit Commitments until such Revolving Credit Advances are paid in full.
Facility fee shall be payable in arrears quarterly on the third Business Day
of each April, July, October and January, commencing October 5, 1998, on the
Final Maturity Date and on the payment in full of all Advances.
(b) UTILIZATION FEE. For each day on which the aggregate
principal amount of Advances outstanding exceeds 50% of (i) prior to the Term
Advance Commitment Termination Date, the aggregate Commitments and (ii) from
and after the Term Advance Commitment Termination Date, the sum of (x) the
aggregate Revolving Credit Commitments and (y) the aggregate principal
amount of the Term Advances outstanding at the close of business on such day,
the Company agrees to pay to the Facility Agent for account of each Lender a
utilization fee on the aggregate principal amount of Advances of such Lender
outstanding on such day at a rate per annum equal to the Applicable Margin
for utilization fees, payable in arrears quarterly on the third Business Day
of each April, July, October and January, commencing October 5, 1998, on the
Final Maturity Date and on the payment in full of all Advances.
(c) FACILITY AGENT'S FEES. The Company shall pay to the
Facility Agent for its own account such fees as may from time to time be
agreed between the Company and the Facility Agent.
SECTION 2.05 TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) The Company shall have the right, upon at least three
Business Days' notice to the Facility Agent, to terminate in whole or reduce
ratably in part the unused portions of the Term
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Commitments and/or the Revolving Credit Commitments, PROVIDED that each
partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, and PROVIDED FURTHER that
the aggregate amount of the Revolving Credit Commitments of the Lenders shall
not be reduced to an amount that is less than the aggregate principal amount
of the Revolving Credit Advances and Competitive Bid Advances then
outstanding.
(b) If (i) any Lender requests compensation under Section 2.11
or (ii) the Company is required to pay any additional amount to any Lender
or any Governmental Authority for account of any Lender pursuant to
Section 2.14 or (iii) the obligation of any Lender to make Eurodollar
Advances shall be suspended pursuant to Section 2.12 or (iv) any Lender
defaults in its obligation to fund Advances hereunder or (v) any Lender
declines any request of the Company to enter into any amendment or waiver or
to consent to any departure by the Company from the terms hereof pursuant to
Section 8.01, then the Company may, at its sole expense, upon notice to such
Lender and the Facility Agent, require such Lender to assign and delegate (in
accordance with and subject to the restrictions contained in Section 8.07),
all its interests, rights and obligations under this Agreement (other than
any outstanding Competitive Bid Advances held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); PROVIDED that (A) the Company shall have
received the prior written consent of the Facility Agent, which consent shall
not unreasonably be withheld or delayed, (B) such Lender shall have received
payment of an amount equal to the outstanding principal of its Advances
(other than Competitive Bid Advances), accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Company (in the case of all other amounts), (C) in the case of any such
assignment resulting from a claim for compensation under Section 2.11 or
payments required to be made pursuant to Section 2.14, such assignment will
result in a reduction in such compensation or payments, (D) except in the case
of a circumstance described in clause (v) above, no Event of Default shall
have occurred and be continuing and (E) in the case of any Lenders refusing
to consent as described in clause (v) above, only Lenders having in the
aggregate Exposures and unused Commitments representing not more than 10% of
the sum of the total Exposures and unused Commitments at such time may be
required by the Company to make any such assignment and delegation pursuant to
this Section.
SECTION 2.06 REPAYMENT; EVIDENCE OF DEBT
(a) REPAYMENT. (i) The Company hereby promises to repay to the
Facility Agent for the ratable account of the Lenders on the Final Maturity
Date the aggregate principal amount of the Committed Advances then
outstanding.
(ii) The Company hereby promises to repay to the Facility Agent
for account of each Lender the principal amount of each Competitive Bid
Advance made by such Lender on the last day of the Interest Period for such
Competitive Bid Advance as established pursuant to Section 2.03.
(b) ACCOUNTS. (i) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the
Company to such Lender resulting from each Advance made by such Lender,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
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(ii) The Facility Agent shall maintain accounts in which it
shall record (x) the amount of each Advance made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (y) the amount of
any principal or interest due and payable or to become due and payable from
the Company to each Lender hereunder and (z) the amount of any sum received
by the Facility Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(iii) The entries made in the accounts maintained pursuant to
clauses (i) or (ii) of this Section 2.06(b) shall be PRIMA FACIE evidence of
the existence and amounts of the obligations recorded therein; PROVIDED that
the failure of any Lender or the Facility Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Company to repay the Advances in accordance with the terms of this Agreement.
(c) PROMISSORY NOTES. Any Lender may request, (i) in the case
of an Initial Lender at least five Business Days prior to the Effective Date
or (ii) in the case of any other Lender, on the date on which such Lender
becomes a party hereto pursuant to Section 8.07, that the (x) Term Advances
of such Lender be evidenced by a single promissory note in the amount of such
Lender's Term Commitment, (y) Revolving Credit Advances of such Lender be
evidenced by a single promissory note in the amount of such Lender's
Revolving Credit Commitment and/or (z) Competitive Bid Advances of such
Lender be evidenced by a single promissory note in the amount of the
Revolving Credit Commitments of all Lenders. In such event, the Company shall
prepare, execute and deliver to such Lender the requested promissory note(s)
within ten Business Days after such request payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns), and each reference herein to "this Agreement" shall, unless the
context otherwise requires, include a reference to such promissory note(s).
SECTION 2.07 INTEREST ON ADVANCES. The Company shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) BASE RATE ADVANCES. 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, payable quarterly in arrears on the third Business
Day of each April, July, October and January during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(b) COMMITTED EURODOLLAR ADVANCES. During such periods as such
Advance is a Committed Eurodollar Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of
more than three months, at three month intervals after the first day of such
Interest Period and on the date such Advance shall be Converted or paid in
full.
(c) BRIDGE ADVANCES. In respect of each Bridge advance, a rate
of [ ]% per annum, payable in arrears to the Lender of such Bridge Advance
on the first day on which interest is due and payable on any Committed
Advance in the ensuing Interest Period.
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(d) FIXED RATE ADVANCES. In respect of each Fixed Rate Advance, a
rate per annum equal to Fixed Rate applicable to such Fixed Rate Advance,
payable as specified in the applicable Competitive Bid Request.
(e) COMPETITIVE BID EURODOLLAR ADVANCES. In respect of each
Competitive Bid Eurodollar Advance, a rate per annum equal to the Eurodollar
Rate for the Interest Period applicable to such Advance plus (or minus, as
applicable) the Competitive Bid Margin applicable to such Advance, payable as
specified in the applicable Competitive Bid Request.
(f) DEFAULT INTEREST. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default under Section
6.01(a), the overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal
of any Advance, 2% plus the rate otherwise applicable to such Advance as
provided in the preceding paragraphs of this Section or (ii) to the fullest
extent permitted by applicable law, in the case of any other amount, 2% plus
the rate applicable to Base Rate Advances as provided in paragraph (a) of
this Section.
SECTION 2.08 INTEREST RATE DETERMINATION.
(a) If LIBOR does not appear on the Screen, each Reference Bank
agrees to furnish to the Facility Agent timely information for the purpose of
determining each Eurodollar Rate. If LIBOR does not appear on the Screen, and
if any one or more of the Reference Banks shall not furnish such timely
information to the Facility Agent for the purpose of determining the
Eurodollar Rate, the Facility Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference Banks. The
Facility Agent shall give prompt notice to the Company and the applicable
Lenders of the applicable interest rate determined by the Facility Agent for
purposes of Section 2.07, and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rates under Sections 2.07(b)
and 2.07(e).
(b) If, due to a major disruption in the interbank funding market
with respect to any Eurodollar Advances, the Required Lenders notify the
Facility Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Advances for such
Interest Period, the Facility Agent shall forthwith so notify the Company and
the Lenders, whereupon (i) each Eurodollar 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 Lenders to make, or to Convert
Advances into, or to Continue, Eurodollar Advances shall be suspended until
the Facility Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Company shall fail to select the duration of any
Interest Period for any Committed Eurodollar Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Facility Agent will forthwith so notify the Company and the Lenders and
the Company will be deemed to have selected an Interest Period for such
Committed Eurodollar Advances of one month.
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(d) Upon the occurrence and during the continuance of any Event of
Default, then at the request of the Required Lenders: (i) each Committed
Eurodollar Advance will, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Committed Advances into, or to Continue,
Committed Eurodollar Advances shall be suspended.
(e) If LIBOR does not appear on the Screen and fewer than two
Reference Banks furnish timely information to the Facility Agent for
determining the Eurodollar Rate for any Eurodollar Advances,
(i) the Facility Agent shall forthwith notify the Company and the
Lenders that the interest rate cannot be determined for such Eurodollar
Advances,
(ii) each such Committed 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),
(iii) the obligation of the Lenders to make, or to Convert Committed
Advances into, or to Continue, Eurodollar Advances shall be suspended until
the Facility Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist, and
(iv) any request by the Company for a Competitive Bid Eurodollar
Borrowing shall be ineffective; PROVIDED that if the circumstances
giving rise to such notice do not affect the Revolving Credit Lenders,
then requests by the Company for Eurodollar Competitive Bid Borrowings
may be made to Revolving Credit Lenders that are not affected thereby.
SECTION 2.09. OPTION CONVERSION OF COMMITTED ADVANCES; CONTINUATIONS.
The Company may on any Business Day, upon notice given to the Facility Agent
not later than 12:00 noon (New York City time) on the third Business Day
prior to the date of the proposed Conversion in the case of a Conversion of
Base Rate Advances into Committed Eurodollar Advances or on the same Business
Day as the date of the proposed Conversion in the case of a Conversion of
Committed Eurodollar Advances into Base Rate Advances or on the first
Business Day prior to the date of the proposed Conversion in the case of a
Conversion of Bridge Advances into Committed Eurodollar Advances, and in any
case, subject to the provisions of Sections 2.08 and 2.12, Convert any
Committed Borrowing of one Type into Committed Borrowings of the other Type
and may, upon notice given to the Facility Agent not later than 12:00 noon
(New York City time) on the third Business Day prior to the date of the
proposed Continuation, subject to the provisions of Sections 2.08 and 2.12,
elect to Continue the Committed Eurodollar Advances constituting any
Borrowing as Committed Eurodollar Advances, such notice to specify the
duration of such ensuing Interest Period in accordance with the definition of
Interest Period; PROVIDED that any Conversion of Base Rate Advances into
Eurodollar Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b). Each such notice of a Conversion or Continuation
shall, within the restrictions specified above, specify (i) the date of such
Conversion or Continuation, (ii) the Advances to be Converted or Continued,
and (iii) if such Conversion is into Eurodollar Advances, or in the case of a
Continuation, the duration of the initial Interest Period for
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each such Advance (provided that, if the Company selects an Interest Period
of nine or twelve months, the Company shall simultaneously specify, as an
alternative in the event that the Facility Agent determines in accordance
herewith that deposits in Dollars are not readily available for the period
selected, at the Company's option, an Interest Period of one, two, three or
six months or a Base Rate Borrowing). Each notice of Conversion shall be
irrevocable and binding on the Company. Competitive Bid Advances may not be
Converted or Continued.
SECTION 2.10 OPTIONAL PREPAYMENTS OF ADVANCES. The Company may,
upon notice given not later than 10:00 a.m. (New York City time) on the date
of prepayment, in the case of Base Rate Advances, and three Business Days'
notice, in the case of Committed Eurodollar Advances, to the Facility Agent
stating the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Company shall, repay the outstanding principal
amount of the Committed Advances constituting 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 that (x) each partial
prepayment shall be in an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Committed Eurodollar Advance, the Company shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c). The Company may not prepay any Competitive Bid Advance without the
consent of the Lender of such Competitive Bid Advance except to the extent
specified in the related Notice of Competitive Bid Borrowing and accepted by
such Lender in its Competitive Bid.
SECTION 2.11 INCREASED COSTS.
(a) If, due to either (i) the introduction of or any change in any
law or regulation or in the interpretation or administration of any law or
regulation by any Governmental Authority charged with the interpretation or
administration thereof after the date of this Agreement or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority which becomes effective after the date of this
Agreement that would be complied with generally by similarly situated banks
acting reasonably (whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Advances (excluding for purposes of this Section any
such increased costs resulting from (A) Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (B) 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 Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof) by an amount deemed by such Lender to be material, then the Company
shall from time to time, within ten Business Days of receipt of demand by
such Lender (with a copy of such demand to the Facility Agent), pay to the
Facility Agent for account of such Lender additional amounts efficient to
compensate such Lender for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Company and the Facility
Agent by such Lender, shall be conclusive and binding for all purposes as to
the calculations therein, absent manifest error. Such certificate shall be in
reasonable detail and shall certify that the claim for additional amounts
referred to therein is generally consistent with such Lender's treatment of
similarly situated customers of such Lender whose transactions with such
Lender are similarly affected by the change in circumstances giving rise to
such payment, but such Lender shall not be required to disclose any
confidential or proprietary information therein. Notwithstanding the foregoing,
no Lender shall be entitled to request compensation under this paragraph with
respect to
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any Competitive Bid Advance if the change giving rise to such request was
applicable to such Lender at the time of submission of such Lender's
Competitive Bid.
(b) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation which becomes effective after
the date hereof or (ii) compliance with any guideline or request from any
Governmental Authority which becomes effective after the date hereof, there
shall be any increase in the amount of capital required or expected to be
maintained by any Lender or any corporation controlling such Lender and the
amount of such capital is increased by or based upon the existence of such
Lender's Advances or Commitments hereunder and other commitments of this type
by an amount deemed by such Lender to be material, then, within ten Business
Days of receipt of demand by such Lender (with a copy of such demand to the
Facility Agent), the Company shall pay to the Facility Agent for account of
such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender or such corporation in the light
of such circumstances, to the extent that such Lender reasonably determines
such increase in capital to be allocable to the existence of such Lender's
Advances or Commitments hereunder. A certificate as to such amounts submitted
to the Company and the Facility Agent by such Lender shall be conclusive and
binding for all purposes as to the calculations therein, absent manifest
error. Such certificate shall be in reasonable detail and shall certify that
the claim for additional amounts referred to therein is generally consistent
with Lender's treatment of similarly situated customers whose transactions
with such Lender are similarly affected by the change in circumstances giving
rise to such payment, but shall not be required to disclose any confidential
or proprietary information therein.
(c) Without limiting the effect of the foregoing, the Company shall
pay to each Lender on the last day of each Interest Period for Committed
Eurodollar Advances so long as such Lender is maintaining reserves for
liabilities or assets consisting of or including against Eurocurrency
Liabilities an additional amount (determined by such Lender and notified to
the Company through the Facility Agent) equal to the product of the following
for each Committed Eurodollar Advance for each day during such Interest Period:
(i) the principal amount of such Committed Eurodollar Advance
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the
rate (expressed as a decimal) at which interest accrues on such Committed
Eurodollar Advance for such Interest Period as provided in this Agreement
(less the Applicable Margin) and the denominator of which is one MINUS the
Eurodollar Rate Reserve Percentage in effect on such day MINUS (y) such
numerator; and
(iii) 1/360.
Such notice shall be reasonable detail and shall certify that the claim for
additional amounts referred to therein is generally consistent with such
Lender's treatment of similarly situated customers of such Lender whose
transactions with such Lender are similarly affected by the change in
circumstances giving to such payment, but such Lender shall not be required
to disclose any confidential or proprietary information therein.
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(d) Failure or delay on the part of any Lender to demand
compensation pursuant to paragraphs (a), (b) or (c) or of this Section shall
not constitute a waiver of such Lender's right to demand such compensation;
PROVIDED that the Company shall not be required to compensate a Lender
pursuant to paragraph (a), (b) or (c) of this Section for any increased costs
incurred more than 90 days prior to the date that such Lender notifies the
Company of the change giving rise to such increased costs and of such Lender's
intention to claim compensation therefor; PROVIDED FURTHER that, if the change
giving rise to such increased costs is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive
effect thereof; and PROVIDED FURTHER, HOWEVER, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous
to such Lender. If a Lender demands compensation under paragraph (a) or (c) of
this Section with respect to Committed Eurodollar Advances, the Borrower may,
upon at least three Business Days' notice to the Lender (with a copy of such
notice to the Facility Agent), elect that, until the circumstances causing
such demand for compensation no longer apply to such Lender, all Committed
Eurodollar Advances that would otherwise be made by such Lender as part of any
Committed Borrowing shall be made instead as Base Rate Advances and all
payments of principal of and interest on such Base Rate Advances shall be made
at the same time as payments on the Committed Eurodollar Advances otherwise
constituting part of such Borrowing. Each Lender will use all reasonable
efforts to give prompt notice to the Company of the event giving rise to any
such demand for compensation.
SECTION 2.12 ILLEGALITY. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Facility Agent
(and provide to the Company an opinion of counsel to the effect) that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any Governmental Authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Committed Eurodollar Advances or to fund or
maintain Committed Eurodollar Advances hereunder, (i) each Committed
Eurodollar Advance of such Lender will automatically, on the last day of the
applicable Interest Period therefor if permitted by law or otherwise upon
demand, Convert into a Base Rate Advance and (ii) the obligation of such
Lender to make or to Continue Committed Eurodollar Advances, and to Convert
Base Rate Advances into, Committed Eurodollar Advances shall be suspended
until the Facility Agent shall notify the Company that the circumstances
causing such suspension no longer exist; and PROVIDED FURTHER, HOWEVER, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the circumstances permitting such demand and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous
to such Lender; and PROVIDED FURTHER that if a Lender makes such a demand, the
Company may, upon at least three Business Days' notice to such Lender (with a
copy of such notice to the Facility Agent), elect that, until the
circumstances causing such demand no longer apply to such Lender, all
Committed Eurodollar Advances that would otherwise be made by such Lender as
part of any Committed Borrowing shall be made instead as Base Rate Advances
and all payments of principal of and interest on such Base Rate Advances shall
be made at the same time as payments on the Committed Eurodollar Advances
otherwise constituting part of such Borrowing.
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SECTION 2.13 PAYMENTS AND COMPUTATIONS.
(a) The Company shall make each payment hereunder not later
than 12:00 noon (New York City time) on the day when due in Dollars to the
Facility Agent at the Facility Agent's Account in same day funds without
setoff or counterclaim. The Facility Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees or utilization fees ratably (other than amounts payable pursuant
to Section 2.03, 2.05(b), 2.11, 2.14, or 8.04(e)) to the Lenders for account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for 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 8.07(d), from and after the effective date specified in
such Assignment and Acceptance, the Facility Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest based on clause (a) of the
definition of "Base Rate" shall be made by the Facility 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 or the Federal Funds Rate and of
facility fees and utilization fees shall be made by the Facility Agent 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 facility or utilization fees are payable. Each
determination by the Facility Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder 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 or facility or utilization
fees, as the case may be; PROVIDED that, if such extension would cause payment
of interest on or principal of Eurodollar Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Facility Agent shall have received notice
from the Company prior to the date on which any payment is due to the Lenders
hereunder that the Company will not make such payment in full, the Facility
Agent may assume that the Company has made such payment in full to the
Facility Agent on such date and the Facility Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Company
shall not have so made such payment in full to the Facility Agent, each Lender
shall repay to the Facility Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Facility Agent, at the Federal Funds Rate.
SECTION 2.14 TAXES.
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(a) Each Lender is exempt from any withholding imposed under
the laws of the United States in respect of any fees, interest or other
payments to which it is entitled pursuant to this Agreement (the "INCOME")
because (i) the Lender is organized under the laws of the United States; (ii)
the Income is effectively connected with the conduct of a trade or business
within the United States within the meaning of Section 871 of the Internal
Revenue Code; or (iii) the Income is eligible for an exemption by reason of a
tax treaty. The Facility Agent is exempt from any withholding tax imposed
under the laws of the United States in respect of the Income because the
Facility Agent is organized under the laws of the United States.
(b) Each Lender organized under the laws of a jurisdiction
outside the United States (each, a "FOREIGN LENDER") shall (i) on or prior to
the date of its execution and delivery of this Agreement in the case of each
Initial Lender, and on the date of the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Foreign Lender and from
time to time thereafter if requested in writing by the Company or the Facility
Agent, provide the Facility Agent and the Company with two properly completed
and duly executed copies of Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Foreign Lender is exempt or entitled to a
reduced rate of United States withholding tax on any Income that is the
subject of such forms or to the extent permitted by law, as an alternative to
such Internal Revenue Service Form 1001 or 4224, each such Lender may provide
the Facility Agent and the Company with two properly completed and duly
executed copies of Internal Revenue Service Form W-8, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from United States federal income withholding tax pursuant to Section
871(b) or Section 881(c) of the Internal Revenue Code, together with an annual
certificate in form and substance satisfactory to the Facility Agent and the
Company stating that such Lender is not a "person" described in Section
871(b)(3) or Section 881(c)(3) of the Internal Revenue Code, and (ii) further
deliver to the Facility Agent and the Company two properly completed and duly
executed copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Company. If the form provided by a Foreign Lender at
the time such Foreign Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes as defined in Section
2.14(e). For purposes of this clause (b) the term "United States" shall have
the meaning specified in Section 7701 of the Internal Revenue Code.
(c) Based on Section 2.14(a) and (b), any and all payments
by the Company hereunder shall be made free and clear of and without deduction
for any present United States Federal income withholding taxes imposed on a
Foreign Lender under the Internal Revenue Code (such withholding taxes being
hereinafter referred to as "TAXES").
(d) If, as a result of the enactment, promulgation,
execution or ratification of, or any change in or amendment to, any United
States law or any tax treaty (or in the application or official interpretation
of any law or any tax treaty) that occurs after the date a Foreign Lender
first becomes a party to this Agreement (a "CHANGE IN LAW"), a Foreign Lender
cannot comply with Section 2.14(b) or, if despite such compliance, the Company
shall be required to deduct any Taxes from or in respect of any Income, then:
(i) the sum payable to such Foreign Lender shall be increased as may be
necessary so that after making all required deductions for such Taxes
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(including deductions applicable to additional sums payable under this Section
2.14) such Foreign Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. Notwithstanding the foregoing, the Company shall be entitled to pay any
Taxes in any lawful manner so as to reduce any deductions and such Foreign
Lender shall to the extent it is reasonably able provide any documentation or
file any forms as may be required by the Internal Revenue Service or any other
foreign governmental agency. In addition, if any Foreign Lender or the
Facility Agent (in lieu of such Foreign Lender), as the case may be, is
required to pay directly any Taxes as a result of a Change in Law because the
Company cannot or does not legally or timely do so, the Company shall
indemnify such Foreign Lender or Facility Agent for payment of such Taxes,
without duplication of, or increase in, the amount of Taxes otherwise due to
the Foreign Lender. Notwithstanding anything to the contrary in this clause
(d), each Lender shall upon the written request of the Company use reasonable
efforts to change the jurisdiction of its Applicable Lending Office if the
making of such change would avoid the need for, or reduce the amount of, any
such Taxes that may thereafter accrue and would not, in the reasonable
judgment of such lender, cause imposition on such Lender of any material legal
or regulatory burdens or any material cost.
(e) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies (excluding any income or franchise taxes, business
taxes or capital taxes of any nature and any present or future stamp or
documentary taxes or any excise or property taxes, charges or similar levies
that arise as a result of sales by any Lender of participations in any loan
pursuant to Section 8.07) that arise from the execution, delivery or
registration of, or otherwise with respect to this Agreement (hereinafter
referred to as "OTHER TAXES"). If a Lender is required to pay directly Other
Taxes because the Company cannot or does not legally or timely do so, the
Company shall indemnify such Lender for such payment of Other Taxes.
Notwithstanding anything to the contrary in this clause (e), each Lender shall
upon the written request of the Company use reasonable efforts to change the
jurisdiction of its Applicable Lending Office if the making of such change
would avoid the need for, or reduce the amount of, any such Other Taxes that
may thereafter accrue and would not, in the reasonable judgment of such
Lender, cause imposition on such Lender of any material legal or regulatory
burdens or any material cost.
(f) Within 30 days after the date of any payment of Taxes or
foreign withholding taxes, the Company shall furnish to the Facility Agent, at
its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof to the extent such receipt is received by
the Company, or other written proof of payment reasonably satisfactory to the
Facility Agent showing payment thereof. Prior to making any payment hereunder
through an account or branch outside the United States or any payment made on
behalf of the Company by a payor that is not a United States person (a
"FOREIGN PAYMENT"), the Company shall determine that no foreign withholding
taxes are payable in respect thereof, and at its expense, shall furnish, or
shall cause such payor to furnish, to the Facility Agent, at such address, a
certificate from each appropriate taxing authority, or an opinion of counsel
reasonably acceptable to the Facility Agent, in either case stating that
such Foreign Payment is exempt from or not subject to foreign withholding
taxes. Each Lender shall cooperate with the Company's efforts described in
this subsection by providing to the extent reasonably within its means any
forms requested by the Company substantiating an exemption from foreign
withholding taxes required by any governmental agency. For purposes of this
clause (f), the
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terms "United States" and "United States person" shall have the meaning
specified in Section 7701 of the Internal Revenue Code. If, as a result of the
enactment, promulgation, execution or ratification of, or any change in or
amendment to, any applicable foreign law or any tax treaty (or in the
application or official interpretation of any law or any tax treaty) that
occurs after the date a tax opinion is rendered pursuant to the terms of this
subsection, and which renders such tax opinion incorrect as to the absence of
any foreign withholding tax (the "FOREIGN CHANGE IN LAW"), the Company shall
be required to deduct any foreign withholding taxes from or in respect of any
Income, then: (i) the sum payable to the applicable Lender shall be increased
as may be necessary so that after making all required deductions for foreign
withholding taxes (including deductions applicable to additional sums payable
under this Section 2.14) such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. Notwithstanding the foregoing, the Company shall be entitled
to pay any foreign withholding taxes in any lawful manner so as to reduce any
deductions and such Lender shall to the extent it is reasonably able provide
any documentation or file any forms as may be required by the Internal Revenue
Service or any other foreign governmental agency. In addition, if any Lender
is required to pay directly any foreign withholding tax in respect of any
Foreign Payments made pursuant to this Agreement because the Company cannot or
does not legally or timely do so, the Company shall indemnify such Lender for
payment of such tax.
(g) For any period with respect to which a Lender has failed
to comply with the requirements of subsection (b) or (f) relating to certain
forms intended to reduce withholding taxes (other than if such failure is due
to a Change in Law of a Foreign Change in Law), such Lender shall not be
entitled to indemnification under subsection (c), (d) or (f).
(h) Upon a Change in Law or the imposition of any foreign
withholding tax in respect of Foreign Payments, a Lender shall, upon the
written request of the Company, use reasonable efforts to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such taxes that may
thereafter accrue and would not, in the reasonable judgment of such Lender,
cause the imposition on such Lender of any material legal or regulatory
burdens or material cost.
(i) Without prejudice to the survival of any other agreement
of the Company hereunder, the agreements and obligations of the Company and any
Lender contained in this Seciton 2.14 shall survive the payment in full of
principal and interest hereunder until the applicable statute of limitations
relating to the payment of any Taxes under Section 2.14(d) has expired.
(j) Any request by any Lender for payment of any amount
under this Section 2.14 shall be accompanied by a certification that (i) such
Lender's claim for said amount is generally consistent with such Lender's
treatment of similarly situated customers of such Lender whose transactions
with such Lender are similarly affected by the change in circumstances giving
rise to such payment, and (ii) identifies with reasonable specificity the
basis for calculation of such amount, but such Lender shall not be required to
disclose any confidential or proprietary information therein.
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(k) If a Lender changes its Applicable Lending Office (other
than pursuant to subsection (d), (e) or (h) above) and the effect of such
change, as of the date of such change, would be to cause the Company to
become obligated to pay any additional amounts under this Section 2.14, the
Company shall not be obligated to pay such additional amounts.
SECTION 2.15 SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Advances of any Class
owing to it (other than pursuant to Section 2.05(b), 2.11, 2.14 or 8.04(c))
in excess of its ratable share of payments on account of the Advances of such
Class obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the Advances of such Class owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; PROVIDED HOWEVER, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender
shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any Lender
so purchasing a participation from another Lender pursuant to this
Section 2.15 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 Lender were the direct creditor of the
Company in the amount of such participation.
SECTION 2.16 USE OF PROCEEDS. The proceeds of the Advances
shall be available (and the Company agrees that such proceeds shall be used)
for general corporate purposes of the Company and its Subsidiaries, including
working capital, stock repurchases, capital investments and acquisitions,
PROVIDED that the proceeds of the initial Term Borrowing shall be used solely
in connection with the Camco Merger and the transactions directly relating
thereto, the refinancing of existing Debt of Camco and the payment of fees
and expenses incurred in connection with the Camco Merger and the
transactions directly relating thereto and this Agreement and the financing
contemplated hereby.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "EFFECTIVE DATE") on which the
following conditions precedent have been satisfied:
(a) The Facility Agent shall have received the following, in
form and substance satisfactory to the Facility Agent in its reasonable
determination and (except in the case of clause (i) below) in sufficient
copies for each Lender.
(i) Promissory note(s) payable to the order of each Lender
that requested promissory note(s) at least five Business Days prior to the
Effective Date.
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(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the other
documents to be delivered hereunder.
(iv) A favorable opinion of David Browning, Esq., counsel of
the Company, substantially in the form of Exhibit C-1 hereto and a
favorable opinion of Shearman & Sterling, special New York counsel to
the Company, substantially in the form of Exhibit C-2 hereto.
(v) A favorable opinion of Milbank, Tweed, Hadley & McCloy,
special New York counsel to the Facility Agent, the Agents and the Lead
Arrangers, substantially in the form of Exhibit D hereto.
(b) On the Effective Date, the following statements shall be
true and the Facility Agent shall have received a certificate signed by a
Responsible Officer, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct in all material respects on and as of the
Effective Date (other than any such representation and warranty that, by
its terms, refers to a date other than the Effective Date, in which case
as of such date),
(ii) No event has occurred and is continuing that
constitutes a Default, and
(iii) The Company has given notice of immediate termination
of the commitments to make extensions of credit to the Company by the
lenders parties to the Existing Credit Agreement and has paid in full
all principal, interest and fees owing under the Existing Credit
Agreement.
(c) As of the Effective Date, the Company shall have paid all
accrued fees and expenses of the Facility Agent, the Agents, the Lead
Arrangers and the Arranger (including the accrued fees and expenses of
counsel to the Facility Agent) for which the Company shall have received a
reasonably detailed invoice at least three Business Days prior to the
Effective Date.
SECTION 3.02 CONDITIONS PRECEDENT TO EACH BORROWING. The
obligation of each Lender to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Company of the proceeds of such Borrowing
shall constitute a representation and warranty by the Company that on the
date of such Borrowing such statements are true):
(i) The representations and warranties contained in
Section 4.01 (except the representations set forth in clause (d)(iii)
thereof and in clause (e)(i) thereof) are correct in
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all material respects on and as of the date of such Borrowing, before
and after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date (other than
any such representation and warranty that, by its terms, refers to a
date other than the date of such Borrowing, in which case as of such
date), and
(ii) No event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03 DETERMINATIONS UNDER SECTION 3.01. The Facility
shall promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas.
(b) The execution, delivery and performance by the Company of
this Agreement are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any Governmental Authority and do not contravene,
or constitute a default under, any provision of applicable law or regulation
or of the articles of incorporation or by-laws of the Company or of any
material debt instrument, agreement, judgment, injunction, order or decree
binding upon the Company.
(c) This Agreement has been duly executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(d) (i) The Consolidated balance sheet of the Company and
its Subsidiaries as at December 31, 1997, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, reported on by PriceWaterhouseCoopers
LLP, copies of which have been delivered to each of the Lenders, present
fairly, in all material respects, the Consolidated financial position of
the Company and its Subsidiaries as of such date and their Consolidated
results of operations and cash flows for such fiscal year, in conformity
with GAAP.
(ii) The unaudited Consolidated balance sheet of the Company
and its Subsidiaries as at March 31, 1998, and the related unaudited
Consolidated statements of income and cash flows of the Company and its
Subsidiaries for the fiscal quarter then ended, copies of which have
been delivered to each of the Lenders, present fairly, in all material
respects, the Consolidated financial position of the Company and its
Subsidiaries as at such date and the Consolidated results of the
operations of the Company and its Subsidiaries for
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such fiscal quarter (subject to normal year-end adjustments and the
absence of footnotes) in conformity with GAAP.
(iii) As of the Effective Date, there has occurred no event
or circumstance that has had a Material Adverse Effect since December 31,
1997 (after giving PRO FORMA effect to the consummation of the Camco
Merger and the transactions directly relating thereto and to this
Agreement and the financing contemplated hereby).
(e) (i) As of the Effective Date, except as set forth on
Schedule 4.01(e), there is no action, suit or proceeding (including,
without limitation, any action, suit or proceeding involving
Environmental Laws) pending against, or to the knowledge of the Company
threatened against, the Company or any of its Subsidiaries before any
court or arbitrator or any Governmental Authority in which there is a
reasonable probability of an adverse decision and which is reasonably
likely to have a Material Adverse Effect.
(ii) There is no action, suit or proceeding pending against,
or to the knowledge of the Company threatened against, the Company which
draws into question the legality, validity or enforceability of this
Agreement.
(f) Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan, and is in compliance with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan, except as is not reasonably likely to have a Material
Adverse Effect.
(g) Except with respect to the matters described on
Schedule 4.01(g) and any other matters that, individually or in the aggregate,
are not reasonably expected to have a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law.
(h) When the tender offer for the shares of Camco has been
consummated it will have been made in compliance with the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
(i) Following application of the proceeds of each Advance, the
Company will be in compliance with Regulation X.
(j) The Company is not an "investment company" or a company
"controlled by" an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(k) The Company has (i) initiated a review and assessment of
all areas within its and each of its Significant Subsidiaries' business and
operations that would be adversely affected by the "Year 2000 Problem" (that
is, the risk that computer applications used by the Company or any of its
Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (ii) developed a plan for addressing the Year 2000 Problem on a timely
basis, and (iii) initiated implementation of that plan. Based on the
foregoing, the Company believes that all computer applications that are
material to its
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or any of its Significant Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000,
except to the extent that a failure to do so is not reasonably be expected to
have Material Adverse Effect.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01 AFFIRMATIVE COVENANTS. So long as any principal of or
interest on any Advance or any other amount payable hereunder shall remain
unpaid or any Lender shall have any Commitment hereunder:
(a) REPORTING REQUIREMENTS. The Company will deliver to each of the
Lenders:
(i) as soon as available and in any event within 100 days after the
end of each fiscal year of the Company, a copy of the annual audit report
for such year for the Company and its Subsidiaries, containing the
Consolidated balance sheet of the Company and its Subsidiaries as of the
end of such fiscal year and the related Consolidated statements of income
and cash flows of the Company and its Subsidiaries for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on without material qualification by
PriceWaterhouseCoopers LLP or other independent public accountants of
nationally recognized standing;
(ii) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Company,
an unaudited Consolidated balance sheet of the Company and its Subsidiaries
as of the end of such quarter and the related unaudited Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for such quarter and for the portion of the Company's fiscal year ended
at the end of such quarter, setting forth in the case of such statements
of income and cash flows in comparative form the figures for the
corresponding quarter in, and the corresponding portion of, the Company's
previous fiscal year, all certified (subject to normal year-end
adjustments and the absence of footnotes) as to conformity with GAAP by a
Responsible Officer;
(iii) simultaneously with the delivery of each set of financial
statements referred to in clauses (i) and (ii) above, a certificate of the
president, a vice president or the controller of the Company setting forth
in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Section 5.03 on the date
of such financial statements;
(iv) as soon as possible and in any event within five Business Days
after a Responsible Officer has knowledge of the occurrence of any
Default, if such Default is then continuing, a certificate of a Responsible
Officer setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(v) promptly upon their becoming available, copies of all
registration statements (other than those on Form S-8) and regular periodic
reports, if any, that the Company shall
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have filed with the Securities and Exchange Commission or any national
securities exchange;
(vi) promptly after the commencement thereof, notice of all actions,
suits and proceedings, other than the matters described on Schedule 4.01(e),
instituted by or before any court or Governmental Authority against the
Company in which there is a reasonable probability of an adverse decision
and that are reasonably likely to have a Material Adverse Effect; and
(vii) promptly from time to time such additional information
regarding the Consolidated financial position or Consolidated results of
operations of the Company and its Subsidiaries, taken as a whole, as the
Facility Agent or any Lender through the Facility Agent may reasonably
request.
(b) PAYMENT OF OBLIGATIONS. The Company will (i) pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, at or before
maturity, all its respective obligations and liabilities, including, without
limitations, tax liabilities, except where (a) the same may be contested in
good faith by appropriate proceedings or (b) non-payment would not have
Material Adverse Effect and (ii) maintain, for itself and its Subsidiaries,
in accordance with GAAP, appropriate reserves for the accrual of any of the
same.
(c) MAINTENANCE OF PROPERTY; INSURANCE.
(i) The Company will maintain and preserve, and will cause each
Significant Subsidiary to maintain and preserve, all Property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted, except where the failure to do so is not likely to have a
Material Adverse Effect.
(ii) The Company will, and will cause each of its Significant
Subsidiaries to, maintain (either in the name of the Parent, the Company or
such Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all its respective Properties in at least such
amounts and against at least such risks as are usually insured against, and
will furnish to the Lenders, upon request from the Facility Agent,
information presented in reasonable detail as to the insurance so carried;
PROVIDED HOWEVER, that notwithstanding the foregoing provisions of this
Section, the Company and its Significant Subsidiaries may maintain (either
in the name of the Parent, the Company or such Subsidiary's own name) such
self-insurance and other risk retention programs and practices as the
Company or such Significant Subsidiary deems appropriate in accordance with
prudent business practices.
(d) CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Company
and its Significant Subsidiaries, taken as a whole, will continue to engage
in business of the same general type as now conducted by the Company and its
Significant Subsidiaries taken as a whole or one or more businesses
reasonably incidental or related thereto. The Company will preserve, renew
and keep in full force and effect, and will cause each Significant Subsidiary
to preserve, renew and keep in full force and effect, its respective
corporate existence and its respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; PROVIDED that
nothing in this
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Section 5.01(d) shall prohibit any transaction expressly permitted by Section
5.02(b), and PROVIDED FURTHER that neither the Company nor any of its
Significant Subsidiaries shall be required to preserve any right, privilege
or franchise if the management of the Company or such Significant Subsidiary
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Significant Subsidiary, as the
case may be, and that the loss thereof is not likely to have a Material
Adverse Effect.
(e) COMPLIANCE WITH LAWS. The Company will comply, and cause each of
its Subsidiaries to comply, in all material respects with all applicable
laws, ordinances, rules, regulations and requirements of Governmental
Authorities (including, without limitation, ERISA and Environmental Laws and
the rules and regulations thereunder) except where (a) the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
(b) non-compliance is not likely to have Material Adverse Effect.
(f) VISITATION. Upon the occurrence and during the continuance of an
Event of Default, during reasonable business hours and upon reasonable
advance notice, the Company will permit, and cause each of its Significant
Subsidiaries to permit, the Facility Agent or any of the Lenders or any
agents or representatives thereof:
(i) to visit the Properties of the Company and any of its Significant
Subsidiaries;
(ii) to examine and make copies of and abstracts from the records
and books of account of the Company and its Significant Subsidiaries (other
than trade secrets and information and materials subject to confidentiality
agreements with third parties); and
(iii) to discuss the affairs, finances and accounts of the Company
and any of its Significant Subsidiaries with their appropriate
representatives and, in the presence of an appropriate representative or
appropriate representatives thereof, with the Company's independent public
accountants.
The provisions of this Section 5.01(f) shall be subject to the terms of
Section 8.08. The reasonable out-of-pocket costs and expenses incurred by the
Facility Agent in the exercise of its rights under this Section 5.01(f) shall
be for account of and reimbursed within ten Business Days of delivery of a
reasonably detailed invoice to the Company.
(g) KEEPING OF BOOKS. The Company will keep, and cause each of its
Significant 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 Company and each such Significant
Subsidiary in accordance with GAAP.
(h) EXISTING CREDIT AGREEMENT. Within ten Business Days after the
consummation of the Camco Merger, the principal of and interest on, and all
fees owing in respect of, the Debt under this Camco Credit Agreement shall
have been paid in full and any commitments to extend credit under the Camco
Credit Agreement shall have been cancelled or terminated.
(i) TRANSACTIONS WITH AFFILIATES. The Company will 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 no less favorable to the Company or such
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Subsidiary than it would obtain in a comparable arm's-length transaction with
a Person not an Affiliate except where the failure to do so, in the
aggregate, is not reasonably likely to have a Material Adverse Effect.
SECTION 5.02 NEGATIVE COVENANTS. So long as any principal of or
interest on any Advance or any other amount payable hereunder shall remain
unpaid or any Lender shall have any Commitment hereunder:
(a) NEGATIVE PLEDGE. Neither the Company nor any Subsidiary thereof
will create, assume or suffer to exist any Lien on any Property now owned or
hereafter acquired by it, except:
(i) Liens existing on the date of this Agreement, securing Debt for
or in respect of borrowed money or evidenced by notes, bonds, debentures or
other similar instruments, and listed in Schedule 5.02;
(ii) any Lien existing on any Property of any Person at the time
such Person becomes a Subsidiary of the Company and not created in
contemplation of such event; PROVIDED that no such Lien shall extend to or
cover other Property;
(iii) purchase money Liens upon or in any Property acquired or held
by the Company or any of its Subsidiaries in the ordinary course of business
to secure the purchase price of such Property or to secure Debt incurred for
the purpose of financing the acquisition, construction or improvement of
such Property, or Liens existing on any such Property at the time of or
within one year of its acquisition or the completion of the construction or
improvement thereof, PROVIDED, HOWEVER, that no such Lien shall extend to or
cover any Property other than the Property being acquired, constructed or
improved;
(iv) any Lien or any Property of any Person existing at the time
such Person is merged or consolidated with or into the Company or a
Subsidiary of the Company and not created in contemplation of such event;
PROVIDED that no such Lien shall extend to or cover other Property;
(v) any Lien existing on any Property prior to the acquisition
thereof by the Company or a Subsidiary thereof and not created in
contemplation of such acquisition; PROVIDED that no such Lien shall extend
to or cover other Property;
(vi) Permitted Liens;
(vii) Liens arising in connection with Capital Lease Obligations
otherwise permitted under Section 5.03; PROVIDED, HOWEVER, that no such Lien
shall extend to or cover any Property other than the Property subject to
such Capital Lease Obligations;
(viii) Liens on accounts or notes receivable (whether such accounts
or notes receivable constitute accounts, instruments, chattel paper or
general intangibles) and other related assets, and sales of or discounts on
the foregoing, arising solely in connection with the securitization thereof
(whether in one transaction or in a series of transactions);
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(ix) Liens arising in connection with repurchase
agreements, reverse purchase agreements and other similar agreements
for the purchase, sale or loan of securities; PROVIDED that no such
Lien shall extend to or cover any Property other than the securities
subject thereto;
(x) Liens on Property of any Subsidiary of the Company
securing obligations owing to the Company or any of its other
Subsidiaries;
(xi) Liens on Margin Stock;
(xii) other Liens securing Debt and other obligations up to
an aggregate principal amount at any time outstanding not exceeding
10% of Consolidated Tangible Assets at such time; and
(xiii) the replacement, extension or renewal of any Lien
otherwise permitted under this Section upon or in the same Property
theretofore subject thereto; PROVIDED that no such extension, renewal
or replacement shall extend to or cover any Property not theretofore
subject to the Lien being extended, renewed or replaced.
(b) MERGERS, ETC. The Company will not 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 Property (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that:
(i) any Subsidiary may merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of all or
substantially all of its Property to, any other Subsidiary of the
Company;
(ii) any Subsidiary of the Company may merge or
consolidate with or into, or convey, transfer, lease or otherwise
dispose of all or substantially all of its Property to, the Company
so long as the Company is the surviving corporation or the surviving
corporation assumes, pursuant to documentation satisfactory to the
Facility Agent, the obligations of the Company hereunder and such
surviving corporation is organized under the laws of the United
States or any State thereof;
(iii) the Company may merge with or consolidate into any
Person so long as the Company is the surviving corporation or the
surviving corporation assumes, pursuant to documentation satisfactory
to the Facility Agent, the obligations of the Company hereunder and
such surviving corporation is organized under the laws of the United
States or any State thereof; and
(iv) subject to (A) a good-faith determination by the
Company that the continued existence of such Subsidiary or that the
ownership or maintenance of such Property are no longer necessary or
desirable in the conduct of the business or the continued operations
of the Company and its Subsidiaries, taken as a whole, and (B)
compliance with the covenants set forth in Section 5.03 on a PRO
FORMA basis as of the last day of the Rolling Period ending on or
most recently ended prior to such date, any Subsidiary of the Company
may merge or
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consolidate with or into, or convey, transfer, lease or otherwise
dispose of all or substantially all of its Property to, one or more
other Persons;
PROVIDED that, (x) the foregoing provisions of this Section 5.02(b) shall not
apply to any Margin Stock and (y) in the cases of subclauses (iii) and (iv) of
this Section 5.02(b), no Event of Default shall have occurred and be
continuing at the time of such proposed transaction or shall occur as a result
thereof.
SECTION 5.03 FINANCIAL COVENANTS. So long as any
principal of or interest on any Advance or any other amount payable hereunder
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will not permit, at any Fiscal Date occurring on or after December 31,
1998;
(a) the Funded Debt to Adjusted Cash Flow Ratio to exceed
4.5 to 1; or
(b) The Interest Coverage Ratio to be less than 2.5 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 EVENTS OF DEFAULT. If one or more of the
following events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) The Company shall fail to pay when due any principal of
any Advance, or the Company shall fail to pay within three Business Days of
the due date thereof any interest, facility fee, utilization fee or other
amount payable hereunder; or
(b) The Company shall fail to observe or perform any
covenant or agreement contained in Section 5.01(a), 5.02 or 5.03; or
(c) The Company shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after written notice thereof has been
given to the Company by the Facility Agent at the request of any Lender; or
(d) Any representation, warranty, certification or statement
made by the Company in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove
to have been incorrect in any material respect when made (or deemed made); or
(e) The Company or any of its Significant Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt having an
aggregate principal amount (or in the case of Hedge Agreements, having an
aggregate net payment amount) of at least $50,000,000 (but excluding Debt
outstanding hereunder) when the same becomes due and payable (whether at
scheduled maturity, by required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument
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relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption); purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(f) The Company or any of its Significant Subsidiaries shall
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 Company or any of its Significant Subsidiaries 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 or 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 60 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 Company or any of its
Significant Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this clause (f); or
(g) Any member of the ERISA Group shall fail to pay within
60 days of the date when due an amount or amounts aggregating in excess of
$50,000,000 which it shall have become liable to pay under Title IV of ERISA;
or notice of intent to terminate a Plan or Plans having aggregate Unfunded
Liabilities in excess of $50,000,000 (collectively, a "MATERIAL PLAN") shall
be filed under Title IV of ERISA (other than in a standard termination under
Section 4041(b) of ERISA) by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability (other
than for the premiums under Section 4007 of ERISA) in respect of or to cause
the trustee to be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled under Section
4042(a)(1) or (2) or ERISA to obtain a decree adjudicating that any Material
Plan must be terminated; or there shall occur with respect to one or more
Multiemployer Plans (x) a complete or partial withdrawal, or (y) a default
within the meaning of Section 4219(c)(5) of ERISA, which is the case of the
event described in clause (x) or (y), that is reasonably expected to cause one
or more members of the ERISA Group to incur a current payment obligation in
excess or $50,000,000; or
(h) One or more final judgments for the payment of money in
excess of $50,000,000 in the aggregate shall be rendered against the Company
or any of its Significant Subsidiaries and the Company or such Significant
Subsidiary shall not discharge the same or provide for its discharge in
accordance with its terms, or procure a stay of execution thereof, within 60
days after the date of entry thereof; PROVIDED, HOWEVER, that any such
judgment or order shall not be (and shall not constitute part of) an Event of
Default under this Section 6.01(h) if and for so long as (i) the amount of
such judgment or order is covered by a valid and binding policy of insurance
between the
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defendant and the insurer covering payment thereof and (ii) such insurer has
been notified of, and has not disputed the claim made for payment of, the
amount of such judgment or order; or
(i) Any Person or group of Persons (within the meaning of
Section 13 or Section 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of 40%
or more of the outstanding shares of Capital Stock of the Parent at the time
entitled to vote for election of directors of the Parent; or
(j) The Parent shall cease for any reason to own directly
or indirectly more than 50% of the outstanding shares of Capital Stock of the
Company at the time entitled to vote for the election of directors of the
Company;
then, and in any such event, the Facility Agent (i) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Company,
terminate the Commitments, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders,
by notice to the Company, 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
or further notice of any kind, all of which are hereby expressly waived by
the Company; PROVIDED that in the event of an actual or deemed entry of an
order for relief with respect to the Company under the Federal Bankruptcy
Code, (A) the Commitments shall automatically terminate and (B) the Advances,
all interest thereon and all such other amounts shall automatically become
and be due and payable, without presentment, protest or any notice of any
kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE FACILITY AGENT
SECTION 7.01 AUTHORIZATION AND ACTION. Each Lender
hereby appoints and authorizes the Facility Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Facility Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement, the
Facility 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 Lenders, and such instructions shall be binding upon all
Lenders; PROVIDED that the Facility Agent shall not be required to take any
action that exposes the Facility Agent to personal liability or that is
contrary to this Agreement or applicable law. The Facility Agent agrees to
give to each Lender prompt notice of each notice given to it by the Company
pursuant to the terms of this Agreement.
SECTION 7.02 FACILITY AGENT'S RELIANCE, ETC. Neither the
Facility 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 this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Facility
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Agent: (i) may treat the payee of any promissory note as the holder thereof
until the Facility Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such promissory note, as
assignor, and an assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Company), 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; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for
any statements, warranties or representations (whether written or oral) made
in or in connection with this Agreement; (iv) 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 this Agreement on the part of the Company
or to inspect the Property (including the books and records) of the Company;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or other parties.
SECTION 7.03 CITIBANK AND AFFILIATES. With respect to
its Commitment and the Advances made by it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Facility Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with,
the Company, any of its Subsidiaries and any Person who may do business with
or own securities of the Company or any such Subsidiary, all as if Citibank
were not the Facility Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04 LENDER CREDIT DECISION. Each Lender
acknowledges that it has, independently and without reliance upon the
Facility Agent or any other Lender and based on the financial statements
referred to in Section 4.01 and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Facility Agent or any other
Lender 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.
SECTION 7.05 INDEMNIFICATION. The Lenders agree to
indemnify the Facility Agent (to the extent not reimbursed by the Company),
ratably according to the amounts of their respective Exposures and unused
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Facility Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Facility
Agent under this Agreement, PROVIDED that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Facility Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Facility
Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the
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Facility 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, this Agreement, to the extent that the
Facility Agent is not reimbursed for such expense by the Company.
SECTION 7.06 SUCCESSOR FACILITY AGENT. The Facility Agent may
resign at any time by giving notice thereof to the Lenders and the Company.
Upon any such resignation the Required Lenders shall have the right to
appoint a successor Facility Agent with, unless an Event of Default has
occurred and is continuing, the consent of the Company, which consent shall
not be unreasonably withheld or delayed. If no successor Facility Agent shall
have been so appointed by the Required Lenders and, if applicable, the Company,
and shall have accepted such appointment, within 30 days after the retiring
Facility Agent's giving of notice of resignation, then the retiring Facility
Agent may, on behalf of the Lenders, appoint a successor Facility Agent with,
unless an Event of Default has occurred and is continuing, the consent of the
Company, which consent shall not be unreasonably withheld or delayed, which
successor Facility Agent shall be a commercial bank organized 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 Facility Agent hereunder by a successor Facility Agent, such
successor Facility Agent shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges and duties of the retiring
Facility Agent, and the retiring Facility Agent shall be discharged from its
duties and obligations under this Agreement, but shall not be discharged
from any duties or obligations under this Agreement prior to its retirement
as Facility Agent. After any retiring Facility Agent's resignation or removal
hereunder as Facility 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 Facility Agent under this Agreement.
SECTION 7.07 AGENTS, LEAD ARRANGERS AND ARRANGER. Without
prejudice to the obligations of the Facility Agent hereunder, the Agents, the
Lead Arrangers and the Arranger, in their capacities as such, have no duties,
obligations or responsibilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Company
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; PROVIDED that no amendment, waiver or consent shall, unless
in writing and signed by all the Lenders (in the case of clauses (a), (e) and
(f)) or by the Required Lenders and each Lender that has Exposure or an unused
Commitment under such Class (in the case of clauses (b), (c) and (d)), do any
of the following: (a) waive any of the conditions specified in Section 3.01,
(b) increase the Commitments of such Lender or subject such Lender to any
additional obligations, (c) reduce the principal of, or stated rate of
interest on, the Advances owing to such Lender or any fees or other amounts
payable hereunder to such Lender, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances owing to such Lender or
any fees or other amounts
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payable hereunder to such Lender, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or
the number of Lenders, that shall be required for the Lenders or any of them
to take any action hereunder or (f) amend this Section 8.01; and PROVIDED
FURTHER that no amendment, waiver or consent shall, unless in writing and
signed by the Facility Agent in addition to the Lender required above to take
such action, affect the rights or duties of the Facility Agent under this
Agreement.
SECTION 8.02 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or telex communication) and mailed, telecopied, telegraphed, telexed or
delivered, if to the Company, at its address at 277 Park Avenue, New York,
New York 10172 Attention: Jorge A. Celaya (Telecopy No. 212-350-9564;
Telephone No. 212-350-8134); if to any Initial Lender, at its Domestic
Lending Office specified in Schedule 2.01; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant
to which it became a Lender, and if to the Facility Agent, at its address at
Two Penn's Way, Suite 200, New Castle, Delaware 19720, Attention: Rupal
Hirwe; or as to the Company or the Facility 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 Company and the Facility Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed
or telex, be effective when deposited in the mails, telecopied, delivered to
the telegraph company or confirmed by telex answerback, respectively, except
that notices and communications to the Facility Agent pursuant to Article II,
III or VII shall not be effective until received by the Facility Agent.
SECTION 8.03 NO WAIVER; REMEDIES. No failure by the Facility
Agent or any Lender in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 8.04 COSTS AND EXPENSES.
(a) The Company agrees to pay on demand all reasonable out-of-pocket
costs and expenses (including, without limitation, reasonable counsel fees
and expenses) of (i) the Facility Agent in connection with the preparation,
negotiation, execution, delivery and administration of this Agreement, and
(ii) the Facility Agent and the Lenders in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement and the other documents to be delivered hereunder, including,
without limitation, reasonable fees and expenses of counsel for the Facility
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Company agrees to indemnify and hold harmless the Facility
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation,
litigation or proceeding arising out of, related to or in connection with
this Agreement,
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any of the transactions contemplated herein or the actual or proposed use of
the proceeds of the Advances; PROVIDED that the foregoing indemnity shall
not, as to any Indemnified Party, apply to claims, damages, losses,
liabilities and expenses to the extent they have resulted from (i) the gross
negligence or willful misconduct of such Indemnified Party or any of its
affiliates, officers, directors, employees, agents or advisors, (ii) any
breach of any obligation of such Indemnified Party under this Agreement,
(iii) any claim against any Indemnified Party by another Indemnified Party or
any prospective Lender or participant or prospective participant or (iv) any
action or claim between the Company or any of its Affiliates and one or more
Indemnified Parties where the Company or such Affiliate prevails. No
Indemnified Party shall settle, compromise or otherwise pay or agree to pay
any claim, damage, loss, liability or expense for which the Company is
required to provide indemnification hereunder without the prior consent of
the Company, which consent shall not be unreasonably delayed or withheld. If
any claim, action or proceeding for which indemnification by the Company may
be sought under this Agreement is brought against any Indemnified Party, such
Indemnified Party shall promptly notify the Company of the institution of
such claim, action or proceeding and the Company shall thereupon participate
in all respects in the defense thereof and have the right, at its sole
option, to elect to assume the defense of such claim, action or proceeding,
including the employment of counsel (reasonably satisfactory at all times to
such Indemnified Party) and payment of expenses. Once the Company has assumed
the defense of any such claim, action or proceeding, the Company shall no
longer be liable to any such Indemnified Party for any expenses subsequently
incurred thereby in connection with such claim, action or proceeding unless
specifically provided for in the next succeeding sentence. Such Indemnified
Party shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the employment of such counsel shall have
authorized in writing by the Company in connection with the defense of such
claim, action or proceeding, (ii) the parties against which such claim,
action or proceeding is brought include both such Indemnified Party and the
Company and such Indemnified Party reasonably concludes (based upon the
advice of counsel) that there are legal defenses available to it which are
different from or in addition to those available to the Company and that such
different or additional defenses conflict therewith or (iii) any such claim,
action or proceeding is brought by the Company or for its benefit, in which
case the reasonable fees and expenses of such counsel shall be borne by the
Company and the Company shall not have the right to direct the defense of
such claim, action or proceeding on behalf of such Indemnified Party (but it
shall retain the right to direct the defense of such claim, action or
proceeding on its own behalf). In addition, notwithstanding the foregoing by
the Company shall not be liable as to any claim, action or proceeding for
which indemnification by the Company may be sought hereunder for the fees and
expenses of more than one counsel for any Indemnified Party in any
jurisdiction. The Company shall not settle or compromise any claim, action or
proceeding on behalf of any Indemnified Party without such Indemnified
Party's consent, which consent shall not be unreasonably withheld or delayed,
if the settlement or compromise involves any non-monetary relief to be
performed, or admission of guilt or wrongdoing, by such Indemnified Party.
(e) If any payment of principal of, or Conversion of, any
Eurodollar Advance is made by the Company to or for account of a Lender
other than on the last day of an Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.09,
2.10 or 2.12, acceleration of the maturity of the Advances pursuant to
Section 6.01 or for any other reason, the Company shall within ten Business
Days of demand by such Lender (with a copy of
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such demand to the Facility Agent), pay to the Facility Agent for account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss, cost or
expense (not including loss of anticipated profit) incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
Sections 2.11 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder.
SECTION 8.05 RIGHT OF SET-OFF. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Facility Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates 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 Lender or such Affiliate to or for the credit or the
account of the Company against any and all of the obligations of the Company
now or hereafter existing under this Agreement, whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Company after
such set-off and application, PROVIDED that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06 BINDING EFFECT. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in Section
3.01) when it shall have been executed by the Company and the Facility Agent
and when the Facility Agent shall have been notified by each Initial Lender
that such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Company, the Facility Agent and each Lender
and their respective successors and assigns, except that the Company shall
have no right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders.
SECTION 8.07 ASSIGNMENTS AND PARTICIPANTS.
(a) Each Lender may assign to one or more Person all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
any promissory note or notes held by it); PROVIDED THAT (i) each such
assignment shall be of a constant, and not a varying percentage of all rights
and obligations under this Agreement (other than Competitive Bid Advances
owing to it), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of
a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender of any Class being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall be $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) the parties to each
such assignment shall execute and deliver to the Facility Agent, for its
acceptance and recording in the
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Register (as defined in clause (e) below), an Assignment and Acceptance,
together with any promissory note subject to such assignment and a processing
and recordation fee of $3,000 and (iv) except in the case of an assignment to
a Person that, immediately prior to such assignment, was a Lender or an
Affiliate of a Lender or a Federal Reserve Bank, each such assignment shall
be made only upon the prior approval of the Company and the Facility Agent,
such approval in each case not to be unreasonably withheld or delayed (it
being understood that if an Event of Default has occurred and is continuing
at the time of such assignment, the consent of the Company shall not be
required hereunder in connection with such assignment).
(b) Upon such 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 Lender
hereunder and (y) the Lender 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 or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender 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 Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Company or the performance or observance by the Company of
any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 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 Facility Agent, such
assigning Lender or any other Lender 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; (v)
such assignee appoints and authorizes the Facility Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Facility Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, together with any promissory note(s) subject to such
assignment, the Facility Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within ten Business Days after
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receipt by the Company of such notice, the Company, at its own expense, if so
requested by such assignee, shall execute and deliver to the Facility Agent
in exchange for the surrendered promissory note(s) a new promissory note or
new promissory notes to the order of such assignee in an amount equal to the
Commitment(s) assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained any Commitment(s) hereunder, if so
requested by such assigning Lender, new promissory note(s) to the order of
the assigning Lender in an amount equal to the Commitment(s) retained by it
hereunder. Such new promissory note(s) shall be in aggregate principal amount
equal to the aggregate principal amount of such surrendered promissory
note(s), shall be dated the effective date of such Assignment and Acceptance.
(e) The Facility 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 Lenders and, with respect to Lenders, the Commitment under each Class
of, and principal amount of the Advances of each Class owing to, each Lender
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Company, the Facility Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(f) Each Lender may, upon notice to the Facility Agent and the
Company, sell participations to one or more banks or other entities in all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment(s), the Advances owing
to it and the promissory note or notes held by it); PROVIDED that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment(s) hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such
promissory note for all purposes of this Agreement, (iv) the Company, the
Facility Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement, or any consent to any departure by the Company
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Advances 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 Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company furnished to such Lender
by or on behalf of the Company; PROVIDED that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree
to preserve the confidentiality of any Confidential Information relating to
the Company received by it from such Lender in accordance with and on the
terms set forth in Section 8.08.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion
of its rights under this Agreement
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(including without limitation, the Advances owing to it) in favor of any
Federal Reserve Bank in accordance with Regulation A.
SECTION 8.08 CONFIDENTIALITY. Neither the Facility Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Company, other than (a) to the Facility Agent's or such
Lender's Affiliates and their officers, directors, employees, agents and
advisors, and then only on a confidential basis, and, as contemplated by
Section 8.07(g), to actual or prospective assignees and participants, (b) as
required by any law, rule or regulation or judicial process, PROVIDED that
the Facility Agent or such Lender, as the case may be, shall notify the
Company of the requirement or request that it disclose any such Confidential
Information prior to doing so unless such notification is prohibited by the
related judicial or legal process or (c) as requested or required by any
Federal, State, or foreign authority or examiner regulating banks or banking.
SECTION 8.09 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 8.10 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any member 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 telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11 JURISDICTION, ETC.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its Property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United
States of America sitting in New York County, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, 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 any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law, in such
Federal court. 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 in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in
any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 8.12 WAIVER OF JURY TRIAL. THE COMPANY, THE FACILITY AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO
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TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE ACTIONS OF THE FACILITY AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.13 NON-RELIANCE. Each of the Lenders represents to the
Facility Agent and each of the other Lenders that it in good faith is not
relying upon any Margin Stock as collateral in the extension or maintenance
of the credit provided for this Agreement.
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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.
SCHLUMBERGER TECHNOLOGY
CORPORATION
By
---------------------------------
Title:
CITIBANK, N.A., individually and as Facility
Agent
By
---------------------------------
Title:
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BANQUE NATIONALE DE PARIS DUBLIN
BRANCH
By
---------------------------------
Title:
THE CHASE MANHATTAN BANK
By
---------------------------------
Title:
ABN AMRO BANK N.V.
By
---------------------------------
Title:
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