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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
(Amendment No. 6)
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)
---------------------------
UNION TEXAS PETROLEUM HOLDINGS, INC.
(Name of Subject Company)
---------------------------
VWK ACQUISITION CORP.
ATLANTIC RICHFIELD COMPANY
(Bidders)
---------------------------
Common Stock, Par Value $0.05 Per Share
(including the associated Common Stock Purchase Rights)
(Title of Class of Securities)
---------------------------
90864010 5
(CUSIP Number of Class of Securities)
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Diane A. Ward, Esq.
VWK Acquisition Corp.
c/o Atlantic Richfield Company
515 South Flower Street
Los Angeles, CA 90071
(213) 486-2808
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
---------------------------
Copies to:
Richard Hall, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
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<PAGE>
Atlantic Richfield Company ("ARCO") and VWK Acquisition Corp.
(the "Purchaser") hereby amend and supplement their Tender Offer Statement
on Schedule 14D-1 and Schedule 13D, originally filed on May 8, 1998, as
amended by Amendment Nos. 1, 2, 3, 4 and 5 filed on May 12, May 18, May 20,
June 3 and June 8, 1998, respectively (as amended, the "Original Filing"),
with respect to the offer (the "Offer") by the Purchaser to purchase all
outstanding shares of Common Stock, par value $0.05 per share (the "Common
Stock"), of Union Texas Petroleum Holdings, Inc., a Delaware corporation
(the "Company"), as set forth in this Amendment No. 6. Capitalized terms
used and not defined herein shall have the meanings given to them in the
Original Filing.
Item 4. Source and Amount of Funds or Other Consideration.
(b) On June 5, 1998, ARCO entered into an agreement for a $3.0
billion revolving credit facility (the "Credit Agreement") with Morgan
Guaranty Trust Company of New York, as Agent, Bank of America National
Trust & Savings Association, The Chase Manhattan Bank, N.A. and Citicorp
USA, Inc. The facility established pursuant to the Credit Agreement
constitutes the New Facility described in the Original Filing and will be
used, among other purposes, to support commercial paper borrowings
associated with funding the consummation of the Offer and the Merger,
including the purchase of shares of Preferred Stock pursuant to the
Preferred Offer. A copy of the Credit Agreement is attached hereto as
Exhibit (a)(14) and is incorporated herein by reference.
Item 11. Material to be Filed as Exhibits.
(a)(14) Credit Agreement, dated June 5, 1998.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: June 9, 1998
VWK ACQUISITION CORP.
By: /s/ Terry G. Dallas
----------------------
Name: Terry G. Dallas
Title: President
ATLANTIC RICHFIELD COMPANY
By: /s/ Terry G. Dallas
----------------------
Name: Terry G. Dallas
Title: Senior Vice President
and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit Page
Number Exhibit Name Number
(a)(14) Credit Agreement, dated June 5, 1998. 5
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ATLANTIC RICHFIELD COMPANY
$3,000,000,000
CREDIT AGREEMENT
Dated as of June 5, 1998
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Agent
---------------------------------------
J.P. MORGAN SECURITIES INC.,
as Lead Arranger
BANCAMERICA ROBERTSON STEPHENS,
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.,
as Co-Arrangers
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<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
Definitions
SECTION 1.01. Definitions......................................... 1
SECTION 1.02. Accounting Terms and Determinations................. 17
ARTICLE 2
The Credits
SECTION 2.01. Commitments to Lend................................. 17
SECTION 2.02. Notice of Syndicated Borrowings..................... 17
SECTION 2.03. Money Market Borrowings............................. 18
SECTION 2.04. Notice to Banks; Funding of Loans................... 24
SECTION 2.05. Notes............................................... 24
SECTION 2.06. Method of Electing Interest Rates................... 25
SECTION 2.07. Interest Rates...................................... 27
SECTION 2.08. Fees................................................ 32
SECTION 2.09. Optional Termination or Reduction of
Commitments....................................... 32
SECTION 2.10. Maturity of Loans; Mandatory
Termination of Commitments........................ 32
SECTION 2.11. Optional Prepayments................................ 33
SECTION 2.12. General Provisions as to Payments................... 33
SECTION 2.13. Funding Losses...................................... 35
SECTION 2.14. Computation of Interest and Fees.................... 35
SECTION 2.15. Judgment Currency................................... 36
SECTION 2.16. Foreign Taxes....................................... 36
SECTION 2.17. Maximum Interest Rate............................... 39
ARTICLE 3
Conditions to Borrowings
SECTION 3.01. Initial Borrowing by Each Borrower.................. 39
SECTION 3.02. Each Borrowing...................................... 41
ARTICLE 4
Representations and Warranties
SECTION 4.01. Representations and Warranties of
the Company....................................... 42
SECTION 4.02. Representations and Warranties of
Each Subsidiary Borrower.......................... 45
<PAGE>
PAGE
ARTICLE 5
Covenants
SECTION 5.01. Certain Information to Be Furnished
by the Company.................................... 47
SECTION 5.02. Limitation on Mortgages............................. 49
SECTION 5.03. Limitation on Sale and Lease-Back................... 50
SECTION 5.04. Consolidation, Merger, Disposition
of Assets......................................... 51
SECTION 5.05. Use of Proceeds..................................... 52
ARTICLE 6
Defaults
SECTION 6.01. Defaults............................................ 52
SECTION 6.02. Notice of Default................................... 55
ARTICLE 7
The Agent
SECTION 7.01. Appointment and Authorization....................... 55
SECTION 7.02. Agent and Affiliates................................ 55
SECTION 7.03. Action by Agent..................................... 55
SECTION 7.04. Consultation with Experts........................... 55
SECTION 7.05. Liability of Agent.................................. 56
SECTION 7.06. Indemnification..................................... 56
SECTION 7.07. Credit Decision..................................... 56
SECTION 7.08. Successor Agent..................................... 56
ARTICLE 8
Change In Circumstances
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair.............................. 57
SECTION 8.02. Illegality.......................................... 60
SECTION 8.03. Increased Cost and Reduced Return................... 61
SECTION 8.04. Substitute Loans.................................... 63
SECTION 8.05. Regulation D Compensation........................... 63
SECTION 8.06. Substitution of Bank................................ 64
ARTICLE 9
The Guarantee
SECTION 9.01. The Guarantee....................................... 64
SECTION 9.02. Guarantee Unconditional............................. 65
<PAGE>
SECTION 9.03. Waiver by the Company............................... 66
SECTION 9.04. Subrogation; Stay of Acceleration................... 66
SECTION 9.05. Reinstatement in Certain
Circumstances..................................... 66
ARTICLE 10
Miscellaneous
SECTION 10.01. Notices............................................ 67
SECTION 10.02. No Waiver.......................................... 67
SECTION 10.03. Governing Law...................................... 67
SECTION 10.04. Expenses........................................... 67
SECTION 10.05. Amendments, Etc.................................... 68
SECTION 10.06. Counterparts; Effectiveness........................ 68
SECTION 10.07. Successors and Assigns............................. 69
SECTION 10.08. Survival........................................... 70
SECTION 10.09. Acknowledgment..................................... 70
SECTION 10.10. Headings........................................... 71
SECTION 10.11. Sharing of Setoffs................................. 71
SECTION 10.12. Collateral......................................... 71
SECTION 10.13. Consent to Jurisdiction............................ 71
SCHEDULE I - Euro-Currency Payment Offices of the Agent
EXHIBIT A - Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E - Form of Certificate of Incumbency
EXHIBIT F - Form of Opinion of Counsel for the
Borrower
EXHIBIT G - Form of Opinion of Special Counsel
for the Agent
EXHIBIT H - Assignment and Assumption Agreement
EXHIBIT I - Notice of Effectiveness
<PAGE>
Credit Agreement (the "Agreement") dated as of June 5, 1998
among Atlantic Richfield Company (the "Company" or a "Borrower"),
each Subsidiary of the Company which has executed and delivered a
counterpart of this Agreement (individually, a "Subsidiary
Borrower" and collectively with the Company, the "Borrowers"),
each of the Banks listed on the signature pages hereof which has
executed and delivered this Agreement (individually, a "Bank" and
collectively, the "Banks") and Morgan Guaranty Trust Company of
New York, as Agent (the "Agent").
The Borrowers desire to borrow from the Banks from time to
time amounts in Dollars and other currencies, the aggregate
Dollar Amount of which will not exceed in the aggregate
$3,000,000,000 outstanding at the time of any Borrowing, for
their general corporate purposes and the Banks are prepared to
make loans upon the terms hereof. Accordingly, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. In addition to terms defined
elsewhere in this Agreement, as used in this Agreement the
following terms shall have the following meanings (all terms
defined in this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Absolute Rate Auction" shall mean a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.03.
"Adjusted CD Rate" shall have the meaning set forth in
Section 2.07(b).
"Administrative Questionnaire" means, with respect to any
Bank, an administrative questionnaire in the form prepared by the
Agent and submitted to the Agent (with a copy to the Company)
duly completed by such Bank.
"Agent" shall mean Morgan Guaranty Trust Company of New York
in its capacity as agent for the Banks hereunder, and its
successors in such capacity.
<PAGE>
"Agreed Currency" shall mean Dollars, Canadian dollars,
Deutsche Marks, French francs, Japanese yen and pounds sterling
and any other currency which is freely transferable and
convertible into Dollars, in which deposits are customarily
offered to banks in the London interbank market, which the
Company requests the Agent to include as an Agreed Currency
hereunder and which is acceptable to each Bank; provided that the
Agent shall promptly notify each Bank of each such request and
each Bank shall be deemed to have agreed to each such request if
its objection thereto has not been received by the Agent within
five Domestic Business Days from the date of such notification by
the Agent to such Bank.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Domestic Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Currency Loans, its
Euro-Currency Lending Office and (iii) in the case of its Money
Market Loans, its Money Market Lending Office.
"Approximate Equivalent Amount" of any currency with respect
to any amount of Dollars at any date shall mean the Equivalent
Amount of such currency with respect to such amount of Dollars at
such date (i) if such currency is an Agreed Currency listed
below, rounded up to the nearest amount of such Agreed Currency
set forth below opposite such amount of Dollars:
<TABLE>
<CAPTION>
Amount of Amount of Amount of Amount of Amount of
Amount of Canadian Deutsche French Japanese Pounds
Dollars Dollars Marks Francs Yen Sterling
<S> <C> <C> <C> <C> <C>
up to 1,000,000 1,000 1,000 1,000 1,000 1,000
1,000,000 to 10,000 10,000 10,000 10,000 10 ,000
9,999,999
10,000,000 to 100,000 100,000 100,000 100,000 100,000
99,999,999
100,000,000 and 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000
upwards
</TABLE>
and (ii) if such currency is not an Agreed Currency listed above, rounded
up to the nearest amount of such currency as determined by the Agent from
time to time. "Assessment Rate" shall have the meaning set forth in Section
2.07(b). "Assignee" has the meaning set forth in Section 10.07(c).
"Authorized Officer" and "Authorized Representative" of any
Borrower shall mean an officer
<PAGE>
or other representative of such Borrower designated in the latest
Certificate of Incumbency of such Borrower. The Agent and the
Banks shall be conclusively entitled to rely on the latest such
Certificate of Incumbency of such Borrower delivered to the
Agent.
"Bank" shall mean each bank which is listed on the signature
pages hereof as having a Commitment and which has executed and
delivered this Agreement, and its successors and assigns.
"Base Rate" means, for any day, a rate per annum equal to
the higher of (i) the Prime Rate for such day or (ii) the sum of
1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Syndicated Loan which bears
interest at the Base Rate pursuant to the applicable Notice of
Syndicated Borrowing or Notice of Interest Rate Election or the
provisions of Article VIII or (ii) an overdue amount which was a
Base Rate Loan immediately before it became overdue.
"Borrower" shall mean the Company or any Subsidiary
Borrower.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a
Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.
"Borrowing" shall mean the aggregation of Loans of the same
type and currency of one or more Banks made or to be made to any
one Borrower pursuant to Article II on a single date and for a
single Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Currency Borrowing" is a
Borrowing comprised of Euro-Currency Loans) or by reference to
the provisions of Article II under which participation therein is
determined (e.g., a "Syndicated Borrowing" is a Borrowing under
Section 2.01 in which all Banks participate in proportion to
their Commitments and a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are determined
by the Agent in accordance therewith).
"CD Base Rate" shall have the meaning set forth in Section
2.07(b).
<PAGE>
"CD Loan" shall mean (i) a Syndicated Loan which bears
interest at a CD Rate pursuant to the applicable Notice of
Syndicated Borrowing or Notice of Interest Rate Election or the
provisions of Article VIII or (ii) an overdue amount which was a
CD Loan immediately before it became overdue.
"CD Margin" shall have the meaning set forth in Section
2.07(h).
"CD Rate" means a rate of interest determined pursuant to
Section 2.07 on the basis of an Adjusted CD Rate.
"CD Reference Banks" shall mean Morgan Guaranty Trust
Company of New York, Bank of America National Trust & Savings
Association, Citibank, N.A., and The Chase Manhattan Bank and
each such other bank as may be appointed pursuant to Section
10.07(d).
"Certificate of Incumbency" shall mean a Certificate of
Incumbency described in Section 3.01(ii) and any successor or
replacement Certificate of Incumbency delivered hereunder.
"Commitment" shall mean, as to each Bank, the Dollar Amount
set forth opposite its name on the signature pages hereof under
the heading "Commitment" (as such amount may be reduced from time
to time as provided in Sections 2.09 and 2.10).
"Company" shall mean Atlantic Richfield Company, a Delaware
corporation, and its permitted successors and assigns pursuant to
Section 5.04 or 10.07(a) hereof.
"Consolidated Net Tangible Assets" shall mean at any date
the total amount of assets (less applicable reserves and other
properly deductible items) after deducting therefrom (a) all
current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which
the amount thereof is being computed), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as set forth on the
most recent balance sheet of the Company and its Consolidated
Subsidiaries and computed in accordance with generally accepted
accounting principles.
<PAGE>
"Consolidated Subsidiary" shall mean, on any date, any
Subsidiary or other entity (including an Excluded Subsidiary) the
accounts of which would be consolidated with those of the Company
in its consolidated financial statements as of such date.
"Debt" shall mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Default" shall mean any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived,
become an Event of Default.
"Designated Currency" shall mean (i) each Agreed Currency,
(ii) any other currency which is freely transferable and
convertible into Dollars, in which deposits are customarily
offered to banks in the London interbank market and which the
Company designates as a Designated Currency hereunder upon five
Domestic Business Days' notice in writing to the Banks through
the Agent and (iii) any other currency which is freely
transferable and convertible into Dollars, in which deposits are
not customarily offered to banks in the London interbank market
and which the Company designates as a Designated Currency
hereunder by notice in writing to the Banks through the Agent;
provided that any notice given pursuant to this clause (iii)
shall also propose an appropriate amendment to this Agreement to
provide for the basis for determining the rate to which Money
Market Margins are to be added or subtracted in the relevant
Money Market Quotes and to amend any other relevant provisions
hereof as necessary and that any such notice and proposed
amendment shall be effective for all purposes hereunder on the
20th Domestic Business Day after the date of such notification by
the Agent to each Bank if no Bank has objected thereto to the
Agent before such 20th Domestic Business Day.
"Dollar Amount" of any currency at any date shall mean (i)
the amount of such currency if such currency is Dollars or (ii)
the equivalent amount of Dollars if such currency is any currency
other than Dollars, calculated on the basis of the arithmetical
mean of the buy and sell spot rates of exchange of the Agent for
such currency at the opening of business in London on the
relevant FX Date.
<PAGE>
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Domestic Business Day" shall mean any day except a
Saturday, Sunday or other day on which commercial banks in New
York City are authorized by law to close.
"Domestic Lending Office" shall mean, as to each Bank, its
office, branch or affiliate specified as its "Domestic Lending
Office" in its Administrative Questionnaire or such other office,
branch or affiliate as such Bank may from time to time specify to
the Agent and each Borrower as its Domestic Lending Office;
provided that any Bank may from time to time by notice to each
Borrower and the Agent designate separate Domestic Lending
Offices for its Base Rate Loans, on the one hand, and its CD
Loans, on the other hand, in which case all references herein to
the Domestic Lending Office of such Bank shall be deemed to refer
to either or both of such offices, as the context may require.
"Domestic Loans" shall mean CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" shall have the meaning set
forth in Section 2.07(b).
"Effective Date" has the meaning set forth in Section 10.06.
"Equivalent Amount" of any currency with respect to any
amount of Dollars at any date shall mean the equivalent in such
currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange
of the Agent for such other currency at the opening of business
in London on the relevant FX Date.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"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.
"Euro-Currency Business Day" shall mean any Domestic
Business Day on which commercial banks are
<PAGE>
open for international business (including dealings in Dollar
deposits) in London and, where funds are to be paid or made
available in a currency other than Dollars, on which commercial
banks are open for domestic and international business (including
dealings in deposits in such currency) in both London and the
place where such funds are to be paid or made available.
"Euro-Currency Lending Office" shall mean, as to each Bank,
(i) for loans denominated in each of Dollars, Canadian dollars,
Deutsche Marks, French francs, Japanese yen and pounds sterling,
its office, branch or affiliate specified as its "Euro-Currency
Lending Office" for such currency in its Administrative
Questionnaire (or, if no such office is specified, its Domestic
Lending Office for Base Rate Loans) or such other office, branch
or affiliate of such Bank as it may from time to time specify to
the Agent and each Borrower as its Euro-Currency Lending Office
and (ii) for loans denominated in each other Agreed Currency
permitted hereunder from time to time, such office, branch or
affiliate of such Bank as it may from time to time specify to the
Agent and each Borrower as its Euro-Currency Lending Office for
such other currency (or, if no such office is specified, its
Domestic Lending Office for Base Rate Loans).
"Euro-Currency Loan" shall mean (i) a Syndicated Loan which
bears interest at a Euro-Currency Rate pursuant to the applicable
Notice of Syndicated Borrowing or Notice of Interest Rate
Election or the provisions of Article VIII or (ii) an overdue
amount which was a Euro-Currency Loan immediately before it
became overdue.
"Euro-Currency Margin" shall have the meaning set forth in
Section 2.07(h).
"Euro-Currency Payment Office" of the Agent shall mean, (i)
for each of Dollars, Canadian dollars, Deutsche Marks, French
francs, Japanese yen and pounds sterling, the office, branch or
affiliate of the Agent specified as the "Euro-Currency Payment
Office" for such currency in Schedule I hereto or such other
office, branch, affiliate or correspondent bank of the Agent as
it may from time to time specify to each Borrower and each Bank
as its Euro-Currency Payment Office and, (ii) for each other
Designated Currency, such office, branch, affiliate or
correspondent bank of the Agent as it may from time to time
specify to each
<PAGE>
Borrower and each Bank as its Euro-Currency Payment Office for
such Designated Currency.
"Euro-Currency Rate" means a rate of interest determined
pursuant to Section 2.07 on the basis of the London Interbank
Offered Rate.
"Euro-Currency Reference Banks" shall mean the principal
London offices of Morgan Guaranty Trust Company of New York, Bank
of America National Trust & Savings Association, Citibank, N.A.,
and The Chase Manhattan Bank and each such other bank as may be
appointed pursuant to Section 10.07(f).
"Euro-Currency Reserve Percentage" shall mean with respect
to any Bank for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement imposed on such Bank in
respect of "Eurocurrency Liabilities" as defined in Regulation D
promulgated by such Board (or in respect of any other category of
liabilities which includes deposits by reference to which the
interest rate on Euro-Currency Loans and Money Market LIBOR Loans
is determined or in respect of any category of extensions of
credit or other assets which includes loans by a non-United
States office of such Bank to United States residents).
"Event of Default" shall have the meaning assigned to that
term in Section 6.01.
"Excluded Subsidiaries" means at any time (i) ARCO Chemical
Company and its subsidiaries if the Company owns at such time
directly or indirectly less than 90% of the outstanding voting
securities of ARCO Chemical Company, (ii) Vastar Resources, Inc.
and its subsidiaries if the Company owns at such time directly or
indirectly less than 90% of the outstanding voting securities of
Vastar Resources, Inc. and (iii) any corporation or other entity
that (x) would otherwise be a "Subsidiary" but for the first
parenthetical phrase of the definition thereof and (y) is a
single-purpose entity with indebtedness incurred to finance the
construction or development of any properties or assets, or the
acquisition from a Person other than the Company or its
Subsidiaries of any properties or assets, if the Person or
Persons providing such financing expressly agree to look to the
properties or assets financed or to be financed and the revenues
to
<PAGE>
be generated by the operation of, or loss or damage to, such
properties or assets as the principal source for the repayment of
such indebtedness, notwithstanding the existence of any
guarantees with respect to repayment of such indebtedness.
"Facility Fee Rate" has the meaning set forth in
Section 2.07(h).
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the nearest 1/100th
of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day;
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such transactions
as determined by the Agent.
"Fixed CD Rate" shall have the meaning set forth in
Section 2.07(b).
"Fixed Rate Loans" shall mean CD Loans or Euro-Currency
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)(iii)) or any combination of the foregoing.
"Foreign Subsidiary Borrower" shall mean a Subsidiary
Borrower (i) incorporated in a jurisdiction other than a
jurisdiction of the United States of America or (ii)
incorporated in a jurisdiction of the United States of
America and treated as resident for tax purposes in a
jurisdiction other than a jurisdiction of the United States
of America by the relevant taxing authority of such other
jurisdiction.
"FX Date" shall mean the date on which the Agent's spot
rate of exchange shall be determined for purposes of
calculating the Dollar Amount and Equivalent Amount of any
currency at any time. With respect to any
<PAGE>
calculation of Dollar Amount or Equivalent Amount as of:
(i) any borrowing date and the last day of
each Interest Period for any type of Borrowing or
Group of Loans, the relevant FX Date shall be the
latest date by which a Notice of Borrowing or
Notice of Interest Rate Election (if any) is
required to be delivered with respect to such
Borrowing or Group of Loans (unless the Group or
Borrowing consists of Base Rate Loans or CD Loans
pursuant to Section 2.04(c), 8.01(a), 8.02 or
8.04(b), in which case the relevant FX Date shall
be four Euro-Currency Business Days before the
borrowing date or last day of the Interest
Period);
(ii) any date of prepayment of any Loan which
is not also a borrowing date, the relevant FX Date
shall be the date of such prepayment;
(iii) the Maturity Date, the relevant FX Date
shall be four Euro-Currency Business Days before
such day; and
(iv) each day on which any vote or other
action by the Required Banks or Banks having a
specified proportion of the principal amount of
the Loans is to be taken or to be effective and
each other day not specified above on which the
Dollar Amount or Equivalent Amount is to be
determined (including, without limitation,
pursuant to Section 6.01(e) and 6.01(i)), the
relevant FX Date shall be such day.
"Group of Loans" means at any time a group of Loans
consisting of (i) all Syndicated Loans which are Base Rate
Loans at such time, (ii) all Euro-Currency Loans having the
same Interest Period at such time or (iii) all CD Loans
having the same interest period at such time, provided that,
if a Syndicated Loan of any particular Bank is converted to
or made as a Base Rate Loan pursuant to Section 8.02 or
8.03, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in
if it had not been so converted or made.
<PAGE>
"guarantee" shall mean to guarantee or act, directly or
indirectly, as a surety for any Debt or other obligation of
any other Person and, without limiting the generality of the
foregoing, to incur or assume any obligation, direct or
indirect, contingent or otherwise, (i) to purchase or pay
(or advance or supply funds for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in
part); provided that the term "guarantee" shall not include
to endorse for collection or deposit in the ordinary course
of business.
"Interest Period" shall mean: (1) with respect to each
Euro-Currency Borrowing, the period commencing on the date
of borrowing specified in the applicable Notice of Borrowing
or on the date specified in the applicable Notice of
Interest Rate Election and ending 1, 2 or 3 months
thereafter as the Borrower of such Borrowing may elect in
the applicable notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day
shall be extended to the next succeeding Euro-Currency
Business Day unless such Euro-Currency Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Currency Business Day;
(b) any Interest Period which begins on the last
Euro-Currency Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Currency Business Day of a calendar month;
and
(c) any Interest Period which would otherwise end
after the Maturity Date shall end on the Maturity Date.
<PAGE>
(2) with respect to each CD Loan, the period commencing
on the date of borrowing specified in the applicable Notice
of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending 30, 60 or 90
days thereafter as the Borrower of such Borrowing may elect
in the applicable notice; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day
shall be extended to the next succeeding Euro-Currency
Business Day; and
(b) any Interest Period which would otherwise end
after the Maturity Date shall end on the Maturity Date.
(3) with respect to each Base Rate Loan, the period
commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in
the applicable Notice of Interest Rate Election and ending
30 days thereafter; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day
shall be extended to the next succeeding Euro-Currency
Business Day; and
(b) any Interest Period which would otherwise end
after the Maturity Date shall end on the Maturity Date.
(4) with respect to each Money Market LIBOR Loan, the
period commencing on the date of borrowing specified in the
applicable Notice of Borrowing and ending such whole number
of months thereafter as the Borrower of such Borrowing may
elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day
shall be extended to the next succeeding Euro-Currency
Business Day unless such Euro-Currency Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Currency Business Day;
(b) any Interest Period which begins on the last
Euro-Currency Business Day of a calendar month (or on a
day for which there is no
<PAGE>
numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Currency
Business Day of a calendar month; and
(c) any Interest Period which begins before the
Maturity Date and would otherwise end after the
Maturity Date shall end on the Maturity Date; and
(5) with respect to each Money Market Absolute Rate
Loan, the period commencing on the date of borrowing
specified in the applicable Notice of Borrowing and ending
on such day (not earlier than the seventh day) thereafter as
the Borrower of such Loan may elect in accordance with
Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Currency Business Day
shall be extended to the next succeeding Euro-Currency
Business Day; and
(b) any Interest Period which begins before the
Maturity Date and would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, or any successor statute.
"LIBOR Auction" shall mean a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Loan" shall mean a Domestic Loan or a Euro-Currency
Loan or a Money Market Loan and "Loans" means Domestic Loans
or Euro-Currency Loans or Money Market Loans or any
combination of the foregoing.
"London Interbank Offered Rate" shall have the meaning
set forth in Section 2.07(c).
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$200,000,000.
"Material Subsidiary" shall mean at any time a
Subsidiary which as of such time meets the definition of a
"significant subsidiary" contained as of the date
<PAGE>
hereof in Rule 1-02 of Regulation S-X of the Securities and
Exchange Commission; provided that, for purposes only of
Section 6.01(e) hereof, all references to "10 percent" in
such Rule 1-02 of Regulation S-X shall be deemed to be
references to "5 percent".
"Maturity Date" means November 9, 1998, or, if such day
is not a Euro-Currency Business Day, the next succeeding
Euro-Currency Business Day unless such Euro-Currency
Business Day falls in another calendar month, in which case
the Maturity Date shall be the next preceding Euro-Currency
Business Day.
"Money Market Absolute Rate" shall have the meaning set
forth in Section 2.03(d)(ii)(E).
"Money Market Absolute Rate Loan" shall mean a Loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" shall mean, as to each
Bank, (i) for Money Market Loans denominated in Dollars, its
Domestic Lending Office for Base Rate Loans or such other
office, branch or affiliate of such Bank as it may from time
to time specify as its Money Market Lending Office by notice
to each Borrower and the Agent and (ii) for Money Market
Loans denominated in each other Designated Currency, such
office, branch or affiliate of such Bank as it may from time
to time specify as its Money Market Lending Office for such
other Designated Currency by notice to each Borrower and the
Agent (or, if no such office is specified, its Domestic
Lending Office for Base Rate Loans); provided that any Bank
may from time to time by notice to each Borrower and the
Agent designate separate Money Market Lending Offices for
each of its Money Market LIBOR Loans denominated in each
Designated Currency and its Money Market Absolute Rate Loans
in which case all references herein to the Money Market
Lending Office of such Bank shall be deemed to refer to one
or all of such offices, as the context may require.
"Money Market LIBOR Loan" shall mean a Loan to be made
by a Bank pursuant to a LIBOR Auction (including such a Loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" shall mean a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
<PAGE>
"Money Market Margin" shall have the meaning set forth
in Section 2.03(d)(ii)(D).
"Money Market Quote" shall mean an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Mortgage" shall mean, with respect to any asset, any
mortgage, lien, pledge or other encumbrance of any kind in
respect of such asset.
"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
is then making or accruing an obligation to make
contributions or 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.
"New York Interbank Offered Rate" applicable to any
Interest Period for any Euro-Currency Loan or Money Market
LIBOR Loan shall mean the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in the currency in which
such Euro-Currency Loan or Money Market LIBOR Loan is
denominated are offered to each of the Euro-Currency
Reference Banks in the New York interbank market at
approximately 11:00 a.m., New York City time, two
Euro-Currency Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Currency Loan of such
Euro-Currency Reference Bank to which such Interest Period
is to apply and for a period of time comparable to such
Interest Period.
"Notes" means promissory notes of a Borrower,
substantially in the form of Exhibit A hereto and issued to
a Bank upon its request pursuant to Section 2.05, evidencing
the obligation of such Borrower to repay the Loans made by
it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" shall mean a Notice of Syndicated
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)) and "the
date of a Notice of Borrowing" shall mean the date the
Notice of Borrowing is given to the Agent pursuant to
Section 2.02 or 2.03(f), as the case may be.
<PAGE>
"Notice of Interest Rate Election" has the meaning set
forth in Section 2.06.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section
10.07(b).
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"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.
"Prime Rate" shall mean the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Qualifying Bank" shall mean, with respect to a Money
Market Borrowing, any Bank incorporated in, or formed under
the law of, the country designated in the Money Market Quote
Request for such Borrowing or any other Bank whose Money
Market Lending Office for such Money Market Borrowing is
located in such country.
"Quarterly Date" shall mean the last day of each
February, May, August and November, commencing with August,
1998.
"Reference Banks" shall mean the CD Reference Banks or
the Euro-Currency Reference Banks, as the
<PAGE>
context may require, and "Reference Bank" shall mean any one
of such Reference Banks.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from
time to time (including any successor provision thereto or
any other United States law or regulation imposing reserves
on deposits or loans).
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time (including any successor provision thereto).
"Required Banks" shall mean at any date Banks having at
least 51% of the aggregate amount of the Commitments or, if
the Commitments shall have been terminated, having Loans the
Dollar Amount of the aggregate principal amount of which
evidence at least 51% of the Dollar Amount of the
outstanding aggregate principal amount of all the Loans.
"Restricted Property" shall mean:
(a) any property interest owned by the Company or
a Subsidiary in land located in the continental United
States of America (which for the purposes hereof shall
include any property located off the coast of the
continental United States of America on which the
Company or any Subsidiary conducts operations pursuant
to leases, rights or other authorizations from the
United States of America or any state thereof located
within the continental United States of America) and
classified by such owner as productive of crude oil,
natural gas or other petroleum hydrocarbons in paying
quantities;
(b) any refining plant or manufacturing plant
owned by the Company or a Subsidiary and located in the
continental United States of America, except (i)
related facilities which in the opinion of the Board of
Directors of the Company are transportation or
marketing facilities, and (ii) a refining plant or
manufacturing plant which in the opinion of the Board
of Directors of the Company is not a principal plant of
the Company and its Subsidiaries; and
(c) any shares of capital stock or indebtedness of
a Restricted Subsidiary (excluding
<PAGE>
any of such shares which constitute "margin stock" as
defined in Regulation U).
"Restricted Subsidiary" shall mean any Subsidiary of
the Company which owns any Restricted Property, except a
Subsidiary substantially all the physical properties of
which are located outside the continental United States of
America.
"Revolving Credit Period" shall mean the period from
the date hereof to and including the Maturity Date.
"Subsidiary" shall mean any corporation or other entity
(other than an Excluded Subsidiary) of which securities or
other ownership interests having ordinary voting power to
elect a majority of the board of directors or other Persons
performing similar functions (whether or not any other class
of securities has or might have voting power by reason of
the happening of a contingency) are at the time owned
directly or indirectly by the Company.
"Subsidiary Borrower" shall mean each Subsidiary which
has executed and delivered to the Agent a counterpart of
this Agreement.
"Syndicated Loan" shall mean a Domestic Loan or a
Euro-Currency Loan made by a Bank pursuant to Section 2.01;
provided that, if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of
Interest Rate Election, the term "Syndicated Loan" shall
refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts
resulting from such subdivision, as the case may be.
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present
value of all benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of
ERISA.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting
<PAGE>
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be
prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most
recent audited consolidated financial statements of the
Company and its Consolidated Subsidiaries delivered to the
Banks.
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) During the
Revolving Credit Period each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to lend to
the Borrowers severally pursuant to this Section from time
to time amounts such that the Dollar Amount of the aggregate
principal amount of all Syndicated Loans by such Bank
outstanding to all Borrowers on the date of any such
Borrowing shall not exceed the amount of its Commitment.
Each Borrowing under this subsection (a) shall be in an
aggregate principal amount of $50,000,000 (or the
Approximate Equivalent Amount thereof) or any larger
multiple of $5,000,000 (or the Approximate Equivalent Amount
thereof) (except that, subject to the provisions of Section
3.02(ii), any such Borrowing may be in the aggregate amount
of the unused Commitments or the Equivalent Amount thereof)
and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the
foregoing limits, each Borrower may borrow under this
subsection, repay, or to the extent permitted by Section
2.11, prepay Loans and reborrow at any time during the
Revolving Credit Period under this subsection.
(b) Each Bank severally agrees to make Euro-Currency
Loans in the Agreed Currencies; provided that, after giving
effect to such Borrowing, the Euro-Currency Loans shall be
denominated in not more than six Agreed Currencies
(including Dollars).
SECTION 2.02. Notice of Syndicated Borrowings. Each
Borrower shall give the Agent notice (a "Notice of
Syndicated Borrowing") not later than (w) 12:00 noon, New
York City time, on the Domestic Business Day of each Base
Rate Borrowing, (x) 12:00 noon, New York City time, the next
Domestic Business Day before each CD
<PAGE>
Borrowing (or the second Domestic Business Day before any CD
Borrowing for which a 360 day Interest Period is requested),
(y) 12:00 noon, New York City time, in the case of a
Euro-Currency Borrowing to be made in Dollars, the third
Euro-Currency Business Day before each such Euro-Currency
Borrowing (or the fourth Euro-Currency Business Day before
any such Euro-Currency Borrowing for which a 9 or 12 month
Interest Period is requested) and (z) (A) in the case of a
Euro-Currency Borrowing to be made in English pounds
sterling, 11:00 a.m., New York City time, on the second
Euro-Currency Business Day before each such Euro-Currency
Borrowing and (B) in the case of a Euro-Currency Borrowing
to be made in an Agreed Currency other than Dollars or
English pounds sterling, 12:00 noon, New York City time, on
the fourth Euro-Currency Business Day before each such
Euro-Currency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Currency Business Day in the case
of a Euro-Currency Borrowing,
(ii) the aggregate amount of such Borrowing;
provided that, in any period of five consecutive
Domestic Business Days, the aggregate Dollar Amounts of
all Syndicated Borrowings and all Money Market
Borrowings in Canadian dollars and French francs as of
the respective dates of Borrowing shall not exceed
$300,000,000 in each such currency,
(iii) whether the Loans comprising such Borrowing
are to bear interest initially at the Base Rate, a CD
Rate or a Euro-Currency Rate and, if at a Euro-Currency
Rate, the currency thereof in accordance with the
provisions of Section 2.01(b) and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period and provided that deposits in the currency of
such Borrowing are being offered for such Interest
Period to the Euro-Currency Reference Banks in the
London interbank market.
SECTION 2.03. Money Market Borrowings. (a) In addition
to Syndicated Borrowings pursuant to Section
<PAGE>
2.01, each Borrower may, as set forth in this Section,
request the Banks (or, if the Borrower has requested Money
Market Quotes only from Qualifying Banks pursuant to
subsection (b)(iii) of this Section, the Qualifying Banks)
during the Revolving Credit Period to make offers to make
Money Market Loans to such Borrower. The Banks may, but
shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section.
(b) When a Borrower wishes to request offers to make
Money Market Loans under this Section, it shall transmit to
the Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of Exhibit B hereto
so as to be received no later than (x) 10:00 a.m., London
time, on the fifth Euro-Currency Business Day prior to the
date of Borrowing proposed therein, in the case of a LIBOR
Auction in a Designated Currency other than Dollars, (y)
11:00 a.m., New York City time, on the fourth Euro-Currency
Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction in Dollars or (z)
11:00 a.m., New York City time, on the next Domestic
Business Day before the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in any such
case, such other time and date as such Borrower and the
Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective), specifying:
(i) the proposed date of Borrowing, which shall be
a Euro-Currency Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction;
(ii) the proposed currency of such Borrowing,
which shall be a Designated Currency in the case of a
LIBOR Auction or Dollars in the case of an Absolute
Rate Auction; provided that after giving effect to such
Borrowing, the outstanding Loans shall be denominated
in not more than six Designated Currencies (including
Dollars);
(iii) if the Borrower is a Foreign Subsidiary
Borrower and will realize a tax benefit (or avoid a tax
or reimbursement liability) with respect to Loans made
by Qualifying Banks but not with
<PAGE>
respect to Loans made by other Banks, whether the Money
Market Quotes are being requested from all of the Banks
or only from Qualifying Banks;
(iv) the aggregate amount of such Borrowing, which
shall be at least $50,000,000 (or the Approximate
Equivalent Amount thereof) or a larger multiple of
$5,000,000 (or the Approximate Equivalent Amount
thereof); provided that the Dollar Amount of such
Borrowing shall not be more than the then aggregate
amount of the Commitments and, in any period of five
consecutive Domestic Business Days, the aggregate
Dollar Amount of all Syndicated Borrowings and all
Money Market Borrowings in Canadian dollars and French
francs as of the respective dates of Borrowing shall
not exceed $300,000,000 in each such currency;
(v) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period; and
(vi) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market
Absolute Rate.
Such Borrower may request offers to make Money Market
Loans for more than one Interest Period but not more than
one currency in a single Money Market Quote Request. No
Money Market Quote Request shall be given within five
Euro-Currency Business Days (or such other number of days as
the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Promptly upon receipt of a Money Market Quote
Request, the Agent shall send to the Banks (or, if the
Borrower has requested Money Market Quotes only from
Qualifying Banks pursuant to subsection (b)(iii) of this
Section, to the Qualifying Banks) by telex or facsimile
transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall
constitute an invitation by such Borrower to each Bank to
submit Money Market Quotes offering to make the Money Market
Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) (i) Each Bank (or, if the Borrower has requested
Money Market Quotes only from Qualifying Banks pursuant to
subsection (b)(iii) of this Section, each Qualifying Bank)
may submit a Money Market Quote containing an offer or
offers to make Money Market
<PAGE>
Loans in response to any Invitation for Money Market Quotes.
Each Money Market Quote must comply with the requirements of
this subsection and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 10.01 not later than (x) 3:00 p.m.,
London time, on the fourth Euro-Currency Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction in a Designated Currency other than Dollars, (y)
10:00 a.m., New York City time, on the third Euro-Currency
Business Day prior to the proposed date of Borrowing, in the
case of a LIBOR Auction in Dollars, or (z) 9:30 a.m., New
York City time, on the proposed date of Borrowing, in the
case of an Absolute Rate Auction (or, in any such case, such
other time and date as such Borrower and the Agent shall
have mutually agreed and shall have notified to the Banks
not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided that Money
Market Quotes submitted by the Agent (or any affiliate of
the Agent) in the capacity of a Bank may be submitted, and
may only be submitted, if the Agent or such affiliate
notifies such Borrower of the terms of the offer or offers
contained therein not later than (A) 2:00 p.m., London time,
on the fourth Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction
in a Designated Currency other than Dollars, (B) 9:30 a.m.,
New York City time, on the third Euro-Currency Business Day
prior to the proposed date of Borrowing, in the case of a
LIBOR Auction in Dollars, or (C) 9:15 a.m., New York City
time, on the proposed date of Borrowing, in the case of an
Absolute Rate Auction. Subject to Articles III and VI, any
Money Market Quote so made shall be irrevocable except with
the written consent of the Agent given on the instructions
of such Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in
any case specify:
(A) the proposed date of Borrowing and, in
the case of a LIBOR Auction, the proposed currency
of such Borrowing;
(B) the principal amount of each Money Market
Loan for which each such offer is being made, (w)
the Dollar Amount of which principal amount may be
greater or less than the Commitment of the quoting
Bank, (x) which
<PAGE>
principal amount must be $5,000,000 (or the
Approximate Equivalent Amount thereof) or a larger
multiple of $1,000,000 (or the Approximate
Equivalent Amount thereof), (y) which principal
amount may not exceed in the aggregate with the
other Money Market Loans included in such offer
the principal amount of Money Market Loans for
which offers were requested and (z) which
principal amount may be subject to an aggregate
limitation as to the principal amount of Money
Market Loans for which offers being made by such
quoting Bank may be accepted;
(C) the duration of the Interest Period
applicable to each Money Market Loan for which
each such offer is being made, subject to the
provisions of the definition of Interest Period;
(D) in the case of a LIBOR Auction, the
margin above or below the applicable London
Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed
as a percentage (rounded to the nearest 1/10,000th
of 1%) to be added to or subtracted from such base
rate;
(E) in the case of an Absolute Rate Auction,
the rate of interest per annum (rounded to the
nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market
Loan;
(F) the identity of the quoting Bank; and
(G) if the Borrower has requested Money
Market Quotes only from Qualifying Banks pursuant
to subsection (b)(iii) of this Section, a
representation and warranty from the quoting Bank
that it is a Qualifying Bank.
(iii) Any Money Market Quote shall be disregarded
that:
(A) is not substantially in the form of
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii) of this
Section;
<PAGE>
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation
for Money Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i) of this Section.
(e) The Agent shall promptly notify such Borrower of
the terms (i) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) of this Section
and (ii) of any subsequent Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same
Money Market Quote Request; provided that any such
subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to such Borrower shall
specify (x) the aggregate principal amount and currency of
Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market
Quote Request, (y) the respective principal amounts and
Money Market Margins or Money Market Absolute Rates, as the
case may be, so offered and (z) if applicable, limitations
on the aggregate principal amount of Money Market Loans for
which offers in any single Money Market Quote may be
accepted.
(f) Not later than (x) 5:00 p.m., London time, on the
fourth Euro-Currency Business Day prior to the proposed date
of Borrowing, in the case of a LIBOR Auction in a Designated
Currency other than Dollars, (y) 11:15 a.m., New York City
time, on the third Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction
in Dollars, or (z) 10:30 a.m., New York City time, on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in any such case, such other time and date as
such Borrower and the Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be
effective), such Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e) of this Section. In the case of
acceptance, such notice
<PAGE>
(a "Notice of Money Market Borrowing") shall specify the
aggregate principal amount of offers for each Interest
Period that are accepted. Such Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request;
(ii) the principal amount of each Money Market
Borrowing must be at least $50,000,000 (or the
Approximate Equivalent Amount thereof) or a larger
multiple of $5,000,000 (or the Approximate Equivalent
Amount thereof); provided that the Dollar Amount of
such Borrowing shall not be more than the then
aggregate amount of the Commitments;
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be; and
(iv) such Borrower may not accept any offer that
is described in subsection (d)(iii) of this Section or
that otherwise fails to comply with the requirements of
this Agreement.
(g) If offers are made by two or more Banks with the
same Money Market Margins or Money Market Absolute Rates, as
the case may be, for a greater aggregate principal amount of
Money Market Loans than can be accepted for the related
Interest Period (after giving effect to the acceptance of
all lower Money Market Margins or Money Market Absolute
Rates, as the case may be, properly offered for such
Interest Period), the principal amount of Money Market Loans
which can be accepted shall be allocated by the Agent among
such Banks as nearly as possible (in such multiples of
$1,000,000 (or the Approximate Equivalent Amount thereof),
as the Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers. Determinations by
the Agent of the amounts of Money Market Loans by each Bank
shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans. (a)
Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of
such Bank's ratable share (if any) of such
<PAGE>
Borrowing and such Notice of Borrowing shall not thereafter
be revocable by the Borrower giving such notice except
pursuant to subsection (c) of this Section or Section
8.01(a).
(b) On the date of each Borrowing, each Bank
participating therein shall make available its ratable share
of such Borrowing, (i) if such Borrowing is denominated in
Dollars, not later than 12:00 noon, New York City time (or,
in the case of any Borrowing of Base Rate Loans, 1:00 p.m.,
New York City time), in Federal or other funds immediately
available to the Agent, in New York City at its address
specified in or pursuant to Section 10.01 and (ii) if such
Borrowing is denominated in another currency, not later than
12:00 noon, local time in the city of the Agent's
Euro-Currency Payment Office for such currency, in such
funds as may then be customary for the settlement of
international transactions in such currency in the city of
and at the address of the Agent's Euro-Currency Payment
Office for such currency. Unless the Agent determines that
any applicable condition specified in Article III has not
been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower making such
Borrowing at the Agent's aforesaid address.
(c) Notwithstanding the satisfaction of all conditions
referred to in Section 2.01(b), 2.02 or 2.03(b) with respect
to any Borrowing in any currency other than Dollars, if
there shall occur on or prior to the date of such Borrowing
any change in national or international financial, political
or economic conditions or currency exchange rates or
exchange controls which would in the opinion of the Agent
make it impracticable for the Euro-Currency Loans or Money
Market LIBOR Loans comprising such Borrowing to be
denominated in the currency specified by the Borrower, then
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, and such Loans shall not be
denominated in such currency but shall be made on the date
of such Borrowing in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Notice of Borrowing, as Base
Rate Loans, unless the Borrower notifies the Agent at least
one Domestic Business Day before such date that it elects
not to borrow on such date.
SECTION 2.05. Notes. (a) Each Bank may, by notice to a
Borrower and the Agent (to be given not later than
<PAGE>
two Domestic Business Days prior to the initial Borrowing)
request either that (i) its Loans be evidenced by a single
Note of such Borrower payable to the order of such Bank for
the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such
Bank's Loans to such Borrower or (ii) its Loans of a
particular type to such Borrower be evidenced by a separate
Note of such Borrower in an amount equal to the aggregate
unpaid principal amount of such Loans to such Borrower.
Except as so requested by a Bank and to the extent a Note is
issued by a Borrower pursuant to this Section 2.05, Loans
made by such Bank are not represented or evidenced by any
promissory note.
(b) Each Note issued pursuant to this Section 2.05
shall be in substantially the form of Exhibit A hereto with
appropriate modifications, if such Note evidences solely
Loans of a particular type, to reflect such fact. Each
reference in this Agreement to a "Note" or the "Notes" of
such Bank shall be deemed to refer to and include any or all
of such Notes of each Borrower, as the context may require.
(c) Upon receipt of each Note of a Borrower (if any)
pursuant to Section 3.01(vi), the Agent shall send such Note
to the relevant Bank. Each Bank shall record, and may, if
such Bank so elects in connection with any transfer or
enforcement of its Note of any Borrower, endorse on the
schedule forming a part thereof appropriate notations to
evidence the date, currency, amount and maturity of each
Loan made by it to such Borrower and the date and amount of
each payment of principal made by such Borrower with respect
thereto; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the
obligations of such Borrower hereunder or under its Note.
Each Bank is hereby irrevocably authorized by each Borrower
so to endorse such Borrower's Note and to attach to and make
a part of any such Note a continuation of any such schedule
as and when required.
SECTION 2.06. Method of Electing Interest Rates. (a)
The Loans included in each Syndicated Borrowing shall bear
interest initially at the type of rate specified by the
Borrower in the applicable Notice of Syndicated Borrowing.
Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by each
Group of Loans (subject in each case to the provisions of
Article VIII), as follows:
<PAGE>
(i) if such Loans are Base Rate Loans, the
Borrower may elect to convert such Loans to CD Loans as
of any Domestic Business Day or to Euro-Currency Loans
as of any Euro-Currency Business Day;
(ii) if such Loans are CD Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or
Euro-Currency Loans or elect to continue such Loans as
CD Loans for an additional Interest Period, subject to
Section 2.13 in the case of any such conversion or
continuation effective on any day other than the last
day of the then current Interest Period applicable to
such Loans; and
(iii) if such Loans are Euro-Currency Loans, the
Borrower may elect to convert such Loans to Base Rate
Loans or CD Loans or elect to continue such Loans as
Euro-Currency Loans for an additional Interest Period,
subject to Section 2.13 in the case of any such
conversion or continuation effective on any day other
than the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice
(a "Notice of Interest Rate Election") to the Agent not
later than (w) 12:00 noon, New York City time, on the
Domestic Business Day of any conversion into or continuation
as Base Rate Loans, (x) 12:00 noon, New York City time, the
next Domestic Business Day before any conversion into or
continuation as CD Loans (or the second Domestic Business
Day before any CD Loans for which a 360 day Interest Period
is requested), (y) 12:00 noon, New York City time, on the
third Euro-Currency Business Day before any conversion into
or continuation as Euro-Currency Loans (or the fourth
Euro-Currency Business Day before any such conversion into
or continuation as Euro-Currency Loans for which a 9 or 12
month Interest Period is requested) and (z) 12:00 noon, New
York City time, on the fourth Euro-Currency Business Day
before any conversion into or continuation as Euro-Currency
Loans in an Agreed Currency other than Dollars. A Notice of
Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the
remaining portion to which it does not
<PAGE>
apply, are each $50,000,000 or any larger multiple of
$5,000,000.
(b) Each Notice of Interest Rate Election shall
specify:
(i) the Group of Loans (or portion thereof) to
which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be
effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans (including the
currency thereof) and, if the Loans being converted are
to be Fixed Rate Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans
or Euro-Currency Loans in the same currency for an
additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest
Rate Election shall comply with the provisions of the
definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election
from the Borrower pursuant to subsection (a) above, the
Agent shall promptly notify each Bank of the contents
thereof and such notice shall not thereafter be revocable by
the Borrower. If the Borrower fails to deliver a timely
Notice of Interest Rate Election to the Agent for any Group
of Fixed Rate Loans, such Loans shall be converted into Base
Rate Loans on the last day of the then current Interest
Period applicable thereto.
(d) An election by the Borrower to change or continue
the rate of interest applicable to any Group of Loans
pursuant to this Section 2.06 shall not constitute a
"Borrowing" for purposes of the provisions of Section 3.02
or otherwise.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan
shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until
the last day of each Interest Period applicable thereto, at
a rate per annum equal to the
<PAGE>
Base Rate for such day. Such interest shall be payable for
each Interest Period on the last day thereof and, with
respect to the principal amount of any Base Rate Loan
converted to a CD Loan or a Euro-Currency Loan, on each date
a Base Rate Loan is so converted. Any overdue principal of
or interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per
annum equal to the sum of 1% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest
Period applicable thereto, at a rate per annum equal to the
sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to such Interest Period; provided that if any CD
Loan or any portion thereof shall, as a result of clause
(2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such portion shall
bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such
interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
90 days, at intervals of 90 days after the first day
thereof. Any overdue principal of or interest on any CD Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the sum
of the CD Margin plus the Adjusted CD Rate applicable to
such Loan at the date such payment was due.
The "Fixed CD Rate" applicable to any Interest Period
means a rate per annum equal to the sum of the CD Margin
plus the applicable Adjusted CD Rate.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
ACDR = CBDR
{ }*
{ } + AR
---------------------
1.00 - DRP
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
<PAGE>
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%.
The "CD Base Rate" applicable to any Interest Period is
the rate of interest determined by the Agent to be the
arithmetic average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 a.m., New York City time (or as soon thereafter
as practicable), on the first day of such Interest Period by
two or more New York certificate of deposit dealers of
recognized standing for the purchase at face value from each
CD Reference Bank of its certificates of deposit in an
amount comparable to the unpaid principal amount of the CD
Loan of such CD Reference Bank to which such Interest Period
applies and having a maturity comparable to such Interest
Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves)
for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York
City having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The Fixed CD
Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve
Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. ss. 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Currency Loan shall bear interest on the
outstanding principal amount thereof, for each day during
each Interest Period applicable thereto, at a
<PAGE>
rate per annum equal to the sum of the Euro-Currency Margin
for such day plus the London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
The "London Interbank Offered Rate" applicable to any
Interest Period for any Loan shall mean the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in the currency
in which such Loan is denominated are offered to each of the
Euro-Currency Reference Banks in the London interbank market
at approximately 11:00 a.m., London time, two Euro-Currency
Business Days before the first day of such Interest Period
(or, in the case of a Euro-Currency Borrowing to be made in
English pounds sterling, at approximately 11:00 a.m., London
time, on the first Euro-Currency Business Day before the
first day of such Interest Period), in an amount
approximately equal to the principal amount of the Loan of
such Euro-Currency Reference Bank to which such Interest
Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any
Euro-Currency Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof was
due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 1% plus the Euro-Currency
Margin for such day plus the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which one day (or, if such amount due
remains unpaid more than three Euro-Currency Business Days,
then for such other period of time not longer than three
months as the Agent may elect) deposits in the relevant
currency in an amount approximately equal to such overdue
payment due to each of the Euro-Currency Reference Banks are
offered to such Euro-Currency Reference Bank in the London
interbank market for the applicable period determined as
provided above (or, if the circumstances described in clause
(a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of (i) if such Euro-Currency Loan is
denominated in Dollars, 1% plus the rate applicable to Base
Rate Loans for such day and (ii) if such Euro-Currency Loan
is denominated in any other currency, 1% plus the cost to
such Bank of funding or
<PAGE>
maintaining such Euro-Currency Loan. The certificate of such
Bank as to the cost of funding or maintaining such
Euro-Currency Loan shall be conclusive absent manifest
error).
(e) Subject to Section 8.01(a)(1), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with subsection (c) of this Section as if each
Euro-Currency Reference Bank were to participate in the
related Money Market Borrowing ratably in proportion to its
Commitment) plus (or minus) the Money Market Margin quoted
by the Bank making such Loan in accordance with Section
2.03. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Absolute Rate quoted by the Bank
making such Loan in accordance with Section 2.03. Such
interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first
day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of (i) if such
Money Market Loan is denominated in Dollars, 1% plus the
rate applicable to Base Rate Loans for such day and (ii) if
such Money Market Loan is denominated in any other currency,
1% plus the cost to such Bank of funding or maintaining such
Money Market Loan. The certificate of such Bank certifying
the cost of funding or maintaining such Money Market Loan
shall be conclusive absent manifest error.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the appropriate Borrower and the
participating Banks by telex or cable of each rate of
interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts
to furnish quotations to the Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely
quotation, the Agent shall determine the relevant interest
rate on the basis of the quotation or quotations furnished
by the remaining
<PAGE>
Reference Bank or Banks or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01
shall apply.
(h) As used herein, the following terms have the
following meanings:
"CD Margin" means 0.275%.
"Euro-Currency Margin" means 0.15%.
"Facility Fee Rate" means 0.05% per annum.
SECTION 2.08. Fees. (a) The Company shall pay to the
Agent for the account of the Banks ratably a facility fee at
the Facility Fee Rate for such day. Such facility fee shall
accrue (i) from and including the Effective Date to but
excluding the date of termination of the Commitments in
their entirety, on the daily aggregate amount of the
Commitments (whether used or unused) and (ii) from and
including such date of termination to but excluding the date
the Loans shall be repaid in their entirety, on the daily
aggregate outstanding principal amount of the Loans.
(b) The Company shall pay to the Agent for its own
account fees in the amounts and at the times previously
agreed upon between the Company and the Agent.
(c) Accrued fees under subsection (a) of this Section
shall be payable quarterly in arrears on the fifth Domestic
Business Day after each Quarterly Date for the quarter
ending on such Quarterly Date or, if earlier, the fifth
Domestic Business Day after the date of termination of the
Commitments in their entirety, and on the fifth Domestic
Business Day after the date on which the Loans shall be
repaid in their entirety.
SECTION 2.09. Optional Termination or Reduction of
Commitments. During the Revolving Credit Period, the Company
may, upon at least three Domestic Business Days' irrevocable
notice to the Agent, terminate at any time, or reduce from
time to time by an aggregate amount of $50,000,000 or a
larger multiple of $5,000,000 the aggregate amount of the
Commitments in excess of the Dollar Amount of the aggregate
outstanding principal amount of the Loans.
SECTION 2.10. Maturity of Loans; Mandatory Termination
of Commitments. (a) The Commitments shall terminate on the
Maturity Date.
<PAGE>
(b) The outstanding principal balance of each
Syndicated Loan shall be due and payable on the Maturity
Date.
(c) The outstanding principal balance of each Money
Market Loan shall be payable on the last day of the Interest
Period applicable to such Loan.
(d) On the last day of each Interest Period, the
Company shall repay, or cause one or more Subsidiary
Borrowers to repay, such principal amount (together with
accrued interest thereon) of each Bank's outstanding
Syndicated Loans, if any, as may be necessary so that after
such repayment the Dollar Amount of the aggregate
outstanding principal amount of all Loans outstanding
hereunder does not exceed the amount of the Commitments on
such day.
SECTION 2.11. Optional Prepayments. (a) Each Borrower
may, upon at least one Domestic Business Day's notice to the
Agent, prepay any Group of Base Rate Loans (or any Money
Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or, subject to Section 2.13 and
upon at least three Euro-Currency Business Days' notice to
the Agent, prepay any Group of CD or Euro-Currency Loans in
whole at any time, or from time to time in part in amounts
aggregating $50,000,000 (or the Approximate Equivalent
Amount thereof) or any larger multiple of $1,000,000 (or the
Approximate Equivalent Amount thereof), by paying the
principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Group. No
Borrower may prepay all or any portion of the principal
amount of any Money Market Loan (other than a Money Market
LIBOR Loan bearing interest at the Base Rate pursuant to
Section 8.01(a)) prior to the maturity thereof.
(b) Upon receipt of a notice of prepayment pursuant to
this Section, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share (if
any) of such prepayment and such notice shall not thereafter
be revocable by any Borrower.
SECTION 2.12. General Provisions as to Payments. (a)
All payments to be made by each Borrower hereunder or under
the Notes in Dollars shall be made not later than 12:00
noon, New York City time, on the date when
<PAGE>
due, in Federal or other funds immediately available in New
York City, to the Agent at its address referred to in
Section 10.01. The Agent will promptly distribute to each
Bank its ratable share of each such payment received by the
Agent for the account of the Banks.
(b) Each Borrowing shall be repaid or prepaid in the
currency in which it was made in the amount borrowed and
interest payable thereon shall be paid in such currency. All
payments to be made by each Borrower hereunder or under the
Notes in any currency other than Dollars shall be made in
such currency on the date due in such funds as may then be
customary for the settlement of international transactions
in such currency for the account of the Agent, at its
Euro-Currency Payment Office for such currency. The Agent
will promptly cause such payments to be distributed to each
Bank in like funds and currency. Notwithstanding the
foregoing provisions of this Section, if, after the making
of any Loan in any currency other than Dollars, currency
control or exchange regulations are imposed in the country
which issues such currency with the result that different
types of such currency (the "New Currency") are introduced
and the type of currency in which the Borrowing was made
(the "Original Currency") no longer exists or the Borrower
is not able to make payment to the Agent for the account of
the Banks in such Original Currency, then all payments to be
made by each Borrower hereunder or under the Notes in such
currency shall be made in such amount and such type of the
New Currency as shall be equivalent to the amount of such
payment otherwise due hereunder or under the Notes in the
Original Currency, it being the intention of the parties
hereto that the Borrowers take all risks of the imposition
of any such currency control or exchange regulations.
(c) Whenever any payment of principal of, or interest
on, the Domestic Loans or of additional compensation shall
be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Currency Loans shall
be due on a day which is not a Euro-Currency Business Day,
the date for payment thereof shall be extended to the next
succeeding Euro-Currency Business Day unless such
Euro-Currency Business Day occurs in another calendar month,
in which case the date for payment thereof shall be the next
preceding Euro-Currency Business Day.
<PAGE>
Whenever any payment of principal of, or interest on, the
Money Market Loans shall be due on a day which is not a
Euro-Currency Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Currency
Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
(d) Unless the Agent shall have been notified by a Bank
or a Borrower (the "Payor") prior to the date on which such
Bank is to make payment to the Agent of the proceeds of a
Loan to be made by it hereunder or such Borrower is to make
a payment to the Agent for the account of one or more of the
Banks, as the case may be (each of such payments being
herein called a "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to
make the Required Payment to the Agent, the Agent may assume
that the Required Payment has been made and may (but shall
not be required to), in reliance upon such assumption, make
the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the
Required Payment to the Agent, the recipient of such payment
shall, on demand, pay to the Agent the amount made available
to it together with interest thereon in respect of the
period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers
such amount at the Federal Funds Rate, if the recipient is a
Bank, and at a rate equal to the rate which, if the
recipient is a Borrower, the recipient would have been
obligated to pay hereunder for the Loans that are the
subject of, or are equivalent to, such payment for such
period.
SECTION 2.13. Funding Losses. Each Borrower shall pay
to the Agent for the account of each Bank, upon the request
of such Bank through the Agent, such amount or amounts as
shall compensate such Bank for any reasonable loss, cost or
expense incurred by such Bank (or, subject to Section
10.07(b), by an existing or prospective Participant in the
related Loan) as a result of:
(a) any prepayment of a Fixed Rate Loan or any
conversion of a Fixed Rate Loan of such Borrower (pursuant
to Section 2.06 or 2.11, Article VI or VIII or otherwise)
held by such Bank on a date before the last day of an
Interest Period applicable thereto, or before the end of an
applicable period fixed pursuant to Section 2.07(d) or
<PAGE>
(b) any failure by such Borrower to borrow a Fixed Rate
Loan (except to the extent any Bank shall fail to make funds
available to the Borrower in accordance with this Agreement,
but including a failure to borrow due to the occurrence of
any event described in Section 2.04(c)) held or to be held
by such Bank on the date for such Borrowing specified in the
relevant Notice of Borrowing under Section 2.02 or 2.03(f),
such compensation to be payable in the currency specified in
the certificate referred to below and to include, without
limitation, an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the
amount so prepaid, converted or not borrowed, for the period
from the date of such prepayment or failure to borrow to the
last day of such Interest Period (or, in the case of a
failure to borrow, the Interest Period for such Fixed Rate
Loan which would have commenced on the date of such failure
to borrow) in each case at the applicable rate of interest
for such Fixed Rate Loan provided for herein (excluding,
however, the CD Margin, the Euro-Currency Margin or any
positive Money Market Margin, as the case may be, included
therein) over (ii) the amount of interest (as reasonably
determined by such Bank) which would have accrued to such
Bank on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank
market or in the New York certificate of deposit market;
provided that such Bank shall have delivered to such
Borrower, within 60 days after the date of such prepayment,
conversion or failure to borrow, a certificate as to the
amount and currency of such loss or expense, which
certificate shall set forth in reasonable detail the basis
for such loss or expense and shall be conclusive in the
absence of manifest error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate and interest on Borrowings
denominated in pounds sterling shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest
and fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION 2.15. Judgment Currency. If for the purposes of
obtaining judgment in any court it is
<PAGE>
necessary to convert a sum due from a Borrower hereunder or
under any of the Notes in the currency expressed to be
payable herein or under the Notes (the "specified currency")
into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance
with normal banking procedures the Agent could purchase the
specified currency with such other currency at the Agent's
New York office on the Euro-Currency Business Day preceding
that on which final, non-appealable judgment is given. The
obligations of the Borrower in respect of any sum due to any
Bank or the Agent hereunder or under any Note shall,
notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on
the Euro-Currency Business Day following receipt by such
Bank or the Agent (as the case may be) of any sum adjudged
to be so due in such other currency such Bank or the Agent
(as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified
currency with such other currency. If the amount of the
specified currency so purchased is less than the sum
originally due to such Bank or the Agent, as the case may
be, in the specified currency, the Borrower agrees, to the
fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to
indemnify such Bank or the Agent, as the case may be,
against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to
any Bank or the Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Banks as a
result of allocations of such excess as a disproportionate
payment to such Bank under Section 10.11, such Bank or the
Agent, as the case may be, agrees to remit such excess to
the Borrower.
SECTION 2.16. Foreign Taxes. (a) All payments made by
any Foreign Subsidiary Borrower in respect of principal of
and interest on its Syndicated Borrowings and of all other
amounts payable by it under this Agreement are payable
without deduction for or on account of any present or future
taxes, duties, withholdings or other charges levied or
imposed by the government of any jurisdiction outside the
United States of America or by any political subdivision or
taxing authority thereof or therein (herein called "Foreign
Taxes"). If any such Foreign Subsidiary Borrower shall be
required by law to deduct or withhold any Foreign Taxes from
any such amount payable by it
<PAGE>
hereunder or under any of its Notes in connection with a
Syndicated Borrowing to or for the account of any Bank, (i)
such amount shall be increased as may be necessary so that,
after making such deductions or withholdings (including any
deductions or withholdings applicable to additional amounts
payable pursuant to this Section), such Bank receives an
amount equal to the amount it would have received had no
such deductions or withholdings been made and (ii) such
Foreign Subsidiary Borrower shall make such deductions and
withholdings and pay the amount thereof to the relevant
government, political subdivision or taxing authority at or
prior to the time required to be paid under applicable law
(and shall promptly furnish to the Agent, for the benefit of
the Banks, receipts evidencing such payment). In addition,
each such Foreign Subsidiary Borrower will pay any present
or future stamp or documentary taxes or similar taxes or
levies imposed by any government, political subdivision or
taxing authority referred to in the first sentence of this
subsection arising from any payment by it hereunder or under
any of its Notes or from the execution, delivery or
registration of, or otherwise with respect to, this
Agreement or any of its Notes (herein called "Other Taxes").
Each such Foreign Subsidiary Borrower will indemnify each
Bank and the Agent for, and hold each Bank and the Agent
harmless against, the full amount of Foreign Taxes in
connection with a Syndicated Loan or Other Taxes (including,
without limitation, any Foreign Taxes in connection with a
Syndicated Loan or Other Taxes imposed by any jurisdiction
on amounts payable under this Section) paid or payable by
such Bank or the Agent and any liability of such Bank or the
Agent relating thereto (including, without limitation,
penalties, interest and expenses). This indemnification
shall be made within 15 days after demand by such Bank or
the Agent (as the case may be).
(b) If the cost to any Bank of making or maintaining
any Syndicated Loan to a Foreign Subsidiary Borrower is
increased, or the amount of any sum received or receivable
under a Syndicated Loan by any Bank (or its Applicable
Lending Office) is reduced, by an amount deemed by such Bank
to be material, which increase or reduction would not have
occurred but for the fact that such Foreign Subsidiary
Borrower is incorporated in, or conducts business in, a
jurisdiction outside the United States of America, such
Foreign Subsidiary Borrower shall indemnify such Bank for
such increased cost or reduction within 15 days
<PAGE>
after demand by such Bank (with a copy to the Agent). This
Section 2.16(b) shall not apply to any liabilities with
respect to Foreign Taxes or Other Taxes or liabilities which
would be Foreign Taxes or Other Taxes in the absence of the
exclusionary language in Section 2.16(c). A certificate of
such Bank claiming indemnification under this Section and
setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest
error.
(c) Notwithstanding the provisions of clause (a) above,
no Foreign Subsidiary Borrower shall indemnify any Bank for
or pay any additional amount or amounts to any Bank with
respect to any tax, assessment or other governmental charge
(i) imposed on, based upon, or measured by income of the
Bank and franchise and similar taxes imposed upon the Bank
by any jurisdiction in which such Bank is incorporated or
maintains its principal place of business or Applicable
Lending Office, (ii) imposed as a result of a connection
between the taxing jurisdiction and such Bank (other than a
connection resulting solely from the transactions
contemplated by this Agreement), (iii) imposed as a result
of the transfer by such Bank of its interest in any Note or
this Agreement or a change (other than pursuant to this
Section 2.16(c)) in its Applicable Lending Office (other
than taxes imposed as a result of any change in treaty, law
or regulation after such transfer of the Bank's interest in
any Note or this Agreement or change in the Bank's
Applicable Lending Office), (iv) imposed as a result of a
failure of any Bank to comply fully with the requirements of
the last sentence of this Section 2.16(c), or (v) that would
not have been imposed but for (A) a failure by such Bank to
comply with applicable certification, information,
documentation or other reporting requirements concerning
such Bank if such compliance is required by statute or
regulation of such country as a precondition to relief or
exemption (whether available by statute or tax treaty) from
such tax, assessment or other governmental charge or (B) a
determination by a taxing authority or a court of competent
jurisdiction that a certification, information,
documentation or other proof provided by such Bank to
establish an exemption from such tax, assessment or
governmental charge is false. Each Bank will promptly notify
the Company, the relevant Foreign Subsidiary Borrowers, and
the Agent of any event of which it has knowledge that will
entitle such Bank to any payment or indemnification under
clause (a) or (b) of this Section
<PAGE>
2.16. If the Foreign Subsidiary Borrower is or will be
required to pay additional amounts under this Section 2.16
to or for the account of any Bank, then such Bank will
designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount
of, such payment or indemnification and will not, in the
good faith opinion of such Bank, be otherwise
disadvantageous to such Bank.
(d) If, and to the extent that, any Bank shall obtain a
credit against its United States federal income tax
liability for any Foreign Taxes or Other Taxes indemnified
or paid by any Foreign Subsidiary Borrower pursuant to this
Section, such Bank agrees to enter into negotiations in good
faith with such Foreign Subsidiary Borrower to determine the
basis on which reimbursement of such credit can be made to
such Foreign Subsidiary Borrower.
(e) If, and to the extent that, any Bank shall receive
a refund of any Foreign Taxes or Other Taxes indemnified or
paid by any Foreign Subsidiary Borrower pursuant to this
Section, such Bank shall pay the amount of such refund
(including, without limitation, any interest received with
respect thereto) to such Foreign Subsidiary Borrower.
(f) All tax receipts required to be delivered under
this Section shall be originals, duplicate originals or duly
certified or authenticated copies.
SECTION 2.17. Maximum Interest Rate. (a) Nothing
contained in this Agreement or any Note shall require the
Borrower to pay interest at a rate exceeding the maximum
rate permitted by applicable law.
(b) If the amount of interest payable for the account
of any Bank on any interest payment date in respect of the
immediately preceding interest computation period, computed
pursuant to Section 2.07, would exceed the maximum amount
permitted by applicable law to be charged by such Bank, the
amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum
permissible amount.
(c) If the amount of interest payable for the account
of any Bank in respect of any interest computation period is
reduced pursuant to clause (b) of this Section and the
amount of interest payable for its account in respect of any
subsequent interest
<PAGE>
computation period, computed pursuant to Section 2.07, would
be less than the maximum amount permitted by applicable law
to be charged by such Bank, then the amount of interest
payable for its account in respect of such subsequent
interest computation period shall be automatically increased
to such maximum permissible amount; provided that at no time
shall the aggregate amount by which interest paid for the
account of any Bank has been increased pursuant to this
clause (c) exceed the aggregate amount by which interest
paid for its account has theretofore been reduced pursuant
to clause (b) of this Section.
ARTICLE 3
CONDITIONS TO BORROWINGS
SECTION 3.01. Initial Borrowing by Each Borrower. The
obligation of each Bank to make any Loan to be made by it as
part of the initial Borrowing by each Borrower hereunder is
subject to the condition precedent that the Agent shall have
received the following documents:
(i) certified copies of the Certificate of
Incorporation and By-Laws of such Borrower and the
resolutions of the Board of Directors of such Borrower
adopted in respect of the transactions contemplated
hereby and such other documents as the Agent or the
Required Banks may reasonably request relating to the
existence of such Borrower, the corporate authority for
and the validity of this Agreement and the Notes (if
any) of such Borrower, and any other matters relevant
hereto, all in form and substance satisfactory to the
Agent;
(ii) a Certificate of Incumbency executed by the
Secretary or an Assistant Secretary of such Borrower in
substantially the form of Exhibit E hereto setting
forth the name, title and specimen signature of each
Authorized Officer or Authorized Representative of such
Borrower (1) who has signed this Agreement on behalf of
such Borrower, (2) who will sign the Notes (if any) of
such Borrower on behalf of such Borrower or (3) who
will, until replaced by another officer or
representative duly authorized for that purpose, act as
the representative of such Borrower for the purposes of
signing documents and giving notices and other
communications by such Borrower in connection with
<PAGE>
this Agreement and the transactions contemplated
hereby;
(iii) an opinion of the General Counsel, a Deputy
General Counsel or an Associate General Counsel of the
Company, dated on or prior to the date of such initial
Borrowing, with respect to such Borrower in
substantially the form of Exhibit F hereto and covering
such additional matters relating to the transactions
contemplated hereby as the Required Banks may
reasonably request; provided that such opinion need
only cover the Notes (if any) of the Company if such
opinion has been previously rendered in all other
respects with respect to the Company pursuant to clause
(viii) of this Section;
(iv) an opinion of Davis Polk & Wardwell, special
counsel for the Agent, dated on or prior to the date of
such initial Borrowing, with respect to such Borrower
in substantially the form of Exhibit G hereto and
covering such additional matters relating to the
transactions contemplated hereby as the Required Banks
may reasonably request; provided that such opinion need
only cover the Notes (if any) of the Company if such
opinion has been previously rendered in all other
respects with respect to the Company pursuant to clause
(viii) of this Section;
(v) a certificate signed by the Chairman of the
Board, the President or any Vice President of such
Borrower to the effect set forth in clauses (iii) and
(iv) of Section 3.02;
(vi) for the account of each Bank that has
requested a Note in accordance with Section 2.05, a
duly executed Note of such Borrower, dated on or before
the date of such initial Borrowing, complying with the
provisions of Section 2.05;
(vii) true copies of the designation and
acceptance of appointment of the agent appointed by
such Borrower pursuant to Section 10.13(b) if such
Borrower is a Foreign Subsidiary Borrower; and
(viii) if the initial Borrowing hereunder is by a
Subsidiary Borrower, the documents, certificates and
opinions referred to in clauses (i) through (v),
inclusive, of this Section with respect to
<PAGE>
the Company, all as if the Company were the Borrower of
such initial Borrowing, except that such opinions of
counsel shall not cover the Notes (if any) of the
Company.
The certificate and opinions referred to in clauses
(ii), (iii), (iv) and (v) above shall be dated no more than
three Euro-Currency Business Days before the date of such
initial Borrowing.
SECTION 3.02. Each Borrowing. The obligation of each
Bank to make each Loan to be made by it as part of a
Borrowing hereunder to any Borrower is subject to the
further conditions precedent that:
(i) the Agent shall have received a Notice of
Borrowing as required by Section 2.02 or 2.03, as the
case may be;
(ii) the fact that, immediately after such
Borrowing, the Dollar Amount of the aggregate
outstanding principal amount of the Loans will not
exceed the aggregate amount of the Commitments;
(iii) the fact that, immediately after such
Borrowing, no Default shall have occurred and be
continuing;
(iv) the fact that the representations and
warranties of such Borrower contained in this Agreement
shall be true on and as of the date of such Borrowing
(after giving effect to such Borrowing) as if made on
and as of such date (except to the extent they
expressly relate to an earlier date); and
(v) the fact that, if such Borrower is a
Subsidiary Borrower, the representations and warranties
of the Company contained in this Agreement shall be
true on and as of the date of such Borrowing (after
giving effect to such Borrowing) as if made on and as
of such date (except to the extent they expressly
relate to an earlier date).
Each Borrowing hereunder by the Company shall be deemed
to be a representation and warranty by the Company on the
date of such Borrowing as to the facts specified in clauses
(ii), (iii) and (iv) of this Section. Each Borrowing
hereunder by a Subsidiary Borrower shall be deemed to be a
representation and
<PAGE>
warranty on the date of such Borrowing (A) by such
Subsidiary Borrower as to the facts specified in clauses
(ii), (iii) and (iv) of this Section and (B) by the Company
as to the facts specified in clauses (ii), (iii), (iv) and
(v) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Company. The Company represents and warrants to the Banks as
follows:
(a) (1) The Company is (i) a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Delaware and (ii) either is
qualified to do business and in good standing in each
jurisdiction where the ownership of its properties or the
conduct of its business requires such qualification or is
subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction.
(2) The Company has all corporate power and
authority, governmental permits, licenses, consents,
authorizations, orders and approvals and other
authorizations as are necessary to carry on its
business substantially as presently conducted.
(3) The execution, delivery and performance of
this Agreement and of the Notes (if any) of the
Company, and Borrowings hereunder by the Company, are
within its corporate power and authority and have been
duly authorized by all necessary corporate proceedings.
(4) Neither such authorization nor the execution,
delivery and performance by the Company of this
Agreement or of the Notes (if any) of the Company
hereunder, nor any Borrowing hereunder by the Company
when made, will conflict with, result in a breach of or
constitute a default under any of the terms, conditions
or provisions of any law or any regulation, order,
writ, injunction or decree of any court or governmental
authority or of the Certificate of Incorporation or
By-Laws of the Company or result in the violation or
contravention of, or the acceleration of any obligation
under, or cause the creation of any
<PAGE>
Mortgage on any of the properties of the Company
pursuant to the provisions of, any indenture, agreement
or other instrument representing Debt, or any other
agreement material to the Company and its Consolidated
Subsidiaries, considered as a whole, to which it is a
party or by which it is bound.
(5) Assuming its due execution by the Banks and
the Agent, this Agreement constitutes a legal, valid
and binding agreement of the Company and the Notes (if
any) of the Company, when duly executed on behalf of
the Company and delivered in accordance with this
Agreement, will constitute legal, valid and binding
obligations of the Company.
(b) The consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of December 31, 1997 and
the related consolidated statements of income and cash flows
for the 12 months ended that date, certified by Coopers &
Lybrand, copies of all of which have been delivered to the
Banks, fairly present the consolidated financial position of
the Company and its Consolidated Subsidiaries as of such
date and the consolidated results of their operations and
cash flows for such fiscal year, in conformity with
generally accepted accounting principles consistently
applied.
(c) The unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of March 31,
1998 and the related unaudited consolidated statements of
income and cash flows for the three-month period then ended,
a copy of which has been delivered to each of the Banks,
fairly present, in conformity with generally accepted
accounting principles applied on a basis consistent with
(except as disclosed therein) the financial statements
referred to in paragraph (b) of this Section, the
consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such
fiscal period (subject to normal year-end adjustments).
(d) Except as disclosed in writing to the Banks, there
has been no material adverse change since March 31, 1998 in
the business, operations, affairs, assets, condition
(financial or otherwise) or results of operations of the
Company and its Consolidated Subsidiaries, considered as a
whole.
<PAGE>
(e) Except as disclosed in writing to the Banks, there
is no action, suit or proceeding pending or, to the
knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries in any court or
before or by any arbitrator, governmental department, agency
or instrumentality, which is reasonably likely to materially
and adversely affect the ability of the Company to perform
its obligations hereunder and under its Notes (if any) or
which in any manner draws into question the validity of this
Agreement or any Note.
(f) No Default has occurred and is continuing.
(g) No consent, authorization, order or approval of (or
filing or registration with) any governmental commission,
board or other regulatory authority (other than routine
reporting requirements) is required for the execution,
delivery and performance by the Company of this Agreement or
of the Notes (if any) of the Company or for Borrowings
hereunder by the Company.
(h) 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 in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan. No member of the ERISA Group has
(i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any
Plan, (ii) failed to make any contribution or payment to any
Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the
imposition of a Mortgage or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of
ERISA.
(i) Each Material Subsidiary is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all
corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted except for such licenses,
authorizations, consents or approvals, the absence of which
will not materially affect the business of the Company and
its Consolidated Subsidiaries taken as a whole.
<PAGE>
(j) There are no Mortgages on any asset of the Company
or any Subsidiary on the date hereof which would have been
prohibited if Section 5.02 of this Agreement had been in
effect on the date the Company or such Subsidiary, as the
case may be, acquired such asset.
(k) Except as disclosed in writing to the Banks, the
description of environmental matters affecting the Company
and its Subsidiaries contained in each of the Company's
reports delivered to the Banks pursuant to clause (ii) of
Section 5.01(c) complied in all material respects as of the
date of such report with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect and
applicable to the Borrower on the date of such report.
SECTION 4.02. Representations and Warranties of Each
Subsidiary Borrower. Each Subsidiary Borrower represents and
warrants to the Banks as follows:
(a) (1) Such Subsidiary Borrower is (i) a corporation
duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and (ii)
either is qualified to do business and in good standing in
each jurisdiction where the ownership of its properties or
the conduct of its business requires such qualification or
is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction.
(2) Such Subsidiary Borrower has all corporate
power and authority, governmental permits, licenses,
consents, authorizations, orders and approvals, and
other authorizations as are necessary to carry on its
business substantially as presently conducted.
(3) The execution, delivery and performance of
this Agreement and of the Notes (if any) of such
Subsidiary Borrower, and Borrowings hereunder by such
Subsidiary Borrower, are within its corporate power and
authority and have been duly authorized by all
necessary corporate proceedings.
(4) Neither such authorization nor the execution,
delivery and performance by such Subsidiary Borrower of
this Agreement or of the Notes (if any) of such
Subsidiary Borrower
<PAGE>
hereunder, nor any Borrowing hereunder by such
Subsidiary Borrower when made, will conflict with,
result in a breach of or constitute a default under any
of the terms, conditions or provisions of any law or
any regulation, order, writ, injunction or decree of
any court or governmental authority or of the
Certificate of Incorporation or By-Laws of such
Subsidiary Borrower or result in the violation or
contravention of, or the acceleration of any obligation
under, or cause the creation of any Mortgage on any of
the properties of such Subsidiary Borrower pursuant to
the provisions of, any indenture, agreement or other
instrument representing Debt or any other agreement
material to such Subsidiary Borrower and its
consolidated subsidiaries, considered as a whole, to
which it is a party or by which it is bound.
(5) Assuming its due execution by the Banks and
the Agent, this Agreement constitutes a legal, valid
and binding agreement of such Subsidiary Borrower and
the Notes (if any) of such Subsidiary Borrower, when
duly executed on behalf of such Subsidiary Borrower and
delivered in accordance with this Agreement, will
constitute legal, valid and binding obligations of such
Subsidiary Borrower.
(b) Except as disclosed in writing to the Banks, there
has been no material adverse change since the last day of
the fiscal quarter ending immediately prior to the date on
which such Subsidiary Borrower became a party hereto in the
business, operations, affairs, assets, condition (financial
or otherwise) or results of operations of such Subsidiary
Borrower and its consolidated subsidiaries, considered as a
whole.
(c) Except as disclosed in writing to the Banks, there
is no action, suit or proceeding pending or, to the
knowledge of such Subsidiary Borrower, threatened against or
affecting such Subsidiary Borrower or any of its
subsidiaries in any court or before or by any arbitrator,
governmental department, agency or instrumentality, which
would be reasonably likely to materially and adversely
affect the ability of such Subsidiary Borrower to perform
its obligations hereunder and under its Notes (if any) or
which in any manner draws into question the validity of this
Agreement or such Notes of such Subsidiary Borrower.
<PAGE>
(d) No Default has occurred and is continuing.
(e) No consent, authorization, order or approval of (or
filing or registration with) any governmental commission,
board or other regulatory authority (other than routine
reporting requirements) is required for the execution,
delivery and performance by such Subsidiary Borrower of this
Agreement or of the Notes (if any) of such Subsidiary
Borrower or for Borrowings hereunder by such Subsidiary
Borrower.
(f) Such Subsidiary Borrower is not an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any
Commitment hereunder or any amount payable with respect to
any Loan or under any Note remains unpaid:
SECTION 5.01. Certain Information to Be Furnished by
the Company. The Company will deliver to each Bank:
(a) as soon as available and in any event within 120
days after the end of each of its fiscal years, the
consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income and cash
flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year,
prepared in accordance with generally accepted accounting
principles consistently applied and so certified by a
nationally recognized firm of independent certified public
accountants;
(b) as soon as available and in any event within 60
days after the end of each of the first three quarters of
each of its fiscal years, the consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end
of such fiscal quarter, the related consolidated statement
of income for such fiscal quarter and for the portion of the
fiscal year ended with such quarter and the related
consolidated statement of cash flows for the portion of the
fiscal year ended with such quarter, setting forth in each
case in comparative form the figures for the corresponding
quarter and the corresponding portion of
<PAGE>
the Company's previous fiscal year, all certified (subject
to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief
accounting officer of the Company;
(c) promptly after the same are available, copies of
all (i) financial statements, reports and proxy materials
sent to shareholders of the Company and (ii) reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) filed by the
Company with the Securities and Exchange Commission (or any
governmental agency succeeding to the functions of such
Commission);
(d) simultaneously with the delivery of the financial
statements referred to in clause (a) above, a certificate of
the Company signed by the Treasurer, any Assistant Treasurer
or other financial officer of the Company stating whether
there exists on the date of such certificate any Default,
and, if any such Default then exists, specifying the nature
and period of existence thereof and the action the Company
is taking and proposes to take with respect thereto;
(e) forthwith, if at any time any executive officer of
the Company shall obtain knowledge of any Default, a
certificate of the Treasurer, any Assistant Treasurer or
other financial officer specifying the nature and period of
existence thereof and the action the Company is taking and
proposes to take with respect thereto;
(f) if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to
any Plan which might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee
to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section
412 of
<PAGE>
the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA,
a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any
Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Mortgage or the posting of a
bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Company
setting forth details as to such occurrence and action, if
any, which the Company or applicable member of the ERISA
Group is required or proposes to take; and
(g) from time to time such further information
regarding compliance with this Agreement or the business,
operations, affairs, assets, condition (financial or
otherwise) or results of operations of the Company and its
Consolidated Subsidiaries as the Agent, at the request of
any Bank, may reasonably request.
SECTION 5.02. Limitation on Mortgages. Nothing in this
Agreement or in the Notes (if any) shall in any way restrict
or prevent the Company or any Subsidiary from incurring any
indebtedness; provided that the Company covenants and agrees
that neither it nor any Restricted Subsidiary will issue,
assume or guarantee any Debt secured by any Mortgage upon
any Restricted Property without effectively providing that
all of the Loans of all of the Borrowers (together with, if
the Company so determines, any other indebtedness or
obligation then existing and any other indebtedness or
obligation thereafter created ranking equally with the
Loans) shall be secured equally and ratably with (or prior
to) such Debt so long as such Debt shall be so secured,
except that the foregoing provisions shall not apply to:
(a) Mortgages affecting property of a corporation
existing at the time it becomes a Subsidiary of the Company
or at the time it is merged into or consolidated with the
Company or a Subsidiary;
(b) Mortgages on property existing at the time of
acquisition thereof or incurred to secure payment of all or
part of the purchase price thereof or to secure
<PAGE>
Debt incurred prior to, at the time of or within 24 months
after acquisition thereof for the purpose of financing all
or part of the purchase price thereof;
(c) Mortgages on property to secure all or part of the
cost of exploration, drilling or development thereof or, in
the case of property which is, in the opinion of the Board
of Directors of the Company, substantially unimproved for
the use intended by the Company, all or part of the cost of
improvement thereof, or to secure Debt incurred to provide
funds for any such purpose;
(d) Mortgages which secure only Debt owing by a
Subsidiary to the Company or another Subsidiary;
(e) Mortgages in favor of the United States of America
or any state thereof or any department, agency,
instrumentality or political subdivision of any such
jurisdiction to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure
any indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of constructing or
improving the property subject thereto, including, without
limitation, Mortgages to secure Debt of the pollution
control or industrial revenue bond type; or
(f) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any Mortgage referred to in the foregoing
clauses (a) to (e) inclusive or of any Debt secured thereby;
provided that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement, and that
such extension, renewal or replacement Mortgage shall be
limited to all or part of substantially the same property
which secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this
Section, the Company and any one or more Restricted
Subsidiaries may issue, assume or guarantee Debt secured by
Mortgages which would otherwise be subject to the foregoing
restrictions or grant any such Mortgage to secure any such
Debt in an aggregate principal amount which, together with
the aggregate outstanding principal amount of all Debt of
the Company and the Restricted Subsidiaries which would
otherwise be subject to the foregoing restrictions (not
including
<PAGE>
Debt permitted to be secured under clauses (a) to (f)
inclusive above) and the aggregate Value of the Sale and
Lease-Back Transactions (as such terms are defined in
Section 5.03 hereof) in existence at such time (not
including Sale and Lease-Back Transactions as to which the
Company has complied with Section 5.03(b) hereof), does not
at any one time exceed 10% of the Consolidated Net Tangible
Assets of the Company and its Consolidated Subsidiaries.
The following types of transaction, among others, shall
not be deemed to create Debt secured by Mortgage:
(i) the sale or other transfer of oil, gas or
other minerals in place for a period of time until, or
in an amount such that, the transferee will realize
therefrom a specified amount (however determined) of
money or such minerals, or the sale or other transfer
of any other interest in property of the character
commonly referred to as a production payment; and
(ii) Mortgages required by any contract or statute
in order to permit the Company or a Subsidiary to
perform any contract or subcontract made by it with or
at the request of the United States of America, any
state or any department, agency or instrumentality, or
political subdivision of either.
SECTION 5.03. Limitation on Sale and Lease-Back. The
Company covenants and agrees that neither it nor any
Restricted Subsidiary will enter into any arrangement with
any Person (other than the Company or a Subsidiary), or to
which any such Person is a party, providing for the leasing
to the Company or a Restricted Subsidiary for a period of
more than three years of any Restricted Property which has
been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person
(other than the Company or a Subsidiary), to which funds
have been or are to be advanced by such Person on the
security of the leased property (in this Section and in
Section 5.02 hereof called a "Sale and Lease-Back
Transaction") unless either:
(a) the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions of Section 5.02 hereof,
to incur Debt in a principal amount equal to or exceeding
the Value of such Sale and Lease-Back Transaction, secured
by a Mortgage on the
<PAGE>
property to be leased, without equally and ratably securing
the Loans; or
(b) the Company (and in any such case the Company
covenants and agrees that it will do so) during or
immediately after the expiration of four months after the
effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a Restricted Subsidiary)
applies to the voluntary retirement of indebtedness of the
Company maturing by the terms thereof more than one year
after the original creation thereof and ranking at least
pari passu with the Loans (hereinafter in this Section 5.03
called "Funded Debt") an amount equal to the Value of such
Sale and Lease-Back Transaction, less the principal amount
of Funded Debt voluntarily retired by the Company within
such four-month period, excluding retirements of Funded Debt
as a result of conversions or pursuant to mandatory sinking
fund or repayment provisions or by payment at maturity.
For purposes of Section 5.02 hereof and this Section,
the term "Value" shall mean, with respect to a Sale and
Lease-Back Transaction, as of any particular time, the
amount equal to the greater of (i) the net proceeds of the
sale or transfer of the property leased pursuant to such
Sale and Lease-Back Transaction or (ii) the fair value in
the opinion of the Board of Directors of the Company of such
property at the time of entering into such Sale and
Lease-Back Transaction, in either case divided first by the
number of full years of the term of the lease and then
multiplied by the number of full years of such term
remaining at the time of determination, without regard to
any renewal or extension options contained in the lease.
SECTION 5.04. Consolidation, Merger, Disposition of
Assets. (a) Subject to the provisions of Section 5.04(b)
hereof, nothing contained in this Agreement shall prevent
any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers
in which the Company or its successor or successors shall be
a party or parties, or shall prevent any sale or conveyance
of all or substantially all the property of the Company, to
any other corporation (whether or not affiliated with the
Company) authorized to acquire and operate the same;
provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, sale or
conveyance, other than a
<PAGE>
consolidation or merger in which the Company is the
continuing corporation, the due and punctual payment of the
principal of and interest on all of its Loans, according to
their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this
Agreement to be performed by the Company, including the
guarantee contained in Article IX hereof, shall be expressly
assumed by instrument satisfactory in form to the Required
Banks and executed and delivered to the Agent by the
corporation (if other than the Company) formed by such
consolidation or into which the Company shall have been
merged or by the corporation which shall have acquired such
property.
(b) If, upon any consolidation or merger of the Company
with or into any other corporation, or upon the sale or
conveyance of all or substantially all the property of the
Company to any other corporation, any of the remaining
property of the Company or of any Restricted Subsidiary
would thereupon become subject to any Mortgage, the Company,
prior to or simultaneously with such consolidation, merger,
sale or conveyance, will secure the Loans of the Company and
all other obligations of the Company under this Agreement,
including the guarantee contained in Article IX hereof,
equally and ratably with any other obligations of the
Company or any subsidiary then entitled thereto, by a direct
Mortgage on all such property prior to all Mortgages other
than any theretofore existing thereon.
SECTION 5.05. Use of Proceeds. The proceeds of the
Loans made under this Agreement will be used by each
Borrower for general corporate purposes. None of such
proceeds will be used in violation of Regulation U or of any
similar law or regulation.
ARTICLE 6
DEFAULTS
SECTION 6.01. Defaults. If one or more of the following
events (herein called "Events of Default") shall occur and
be continuing:
(a) any Borrower shall default in the payment when due
of any principal of any Loan or shall default in the payment
within ten days of the due date thereof of any interest on
any Loan or any other amount payable hereunder;
<PAGE>
(b) the Company shall fail to perform or observe any
covenant or agreement to be performed by it contained in
Sections 5.02, 5.03, 5.04 or 5.05;
(c) any Borrower shall fail to perform or observe any
covenant or agreement to be performed by it contained in
this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice of such failure
is given to the Borrower by the Agent at the request of any
Bank;
(d) any Borrower shall have made or be deemed to have
made pursuant to this Agreement any representation or
warranty in or pursuant to this Agreement, or in any
certificate or financial statement delivered pursuant this
Agreement or any document delivered pursuant to Article III,
which shall prove to have been incorrect in any material
respect when made or deemed made;
(e) the Company, any Subsidiary Borrower or any
Material Subsidiary shall fail to pay any indebtedness for
borrowed money (other than the Loans) payable or guaranteed
by it (including, without limitation, any indebtedness for
borrowed money of any Excluded Subsidiary to the extent that
it is also payable by or is guaranteed by the Company, any
Subsidiary Borrower or any Material Subsidiary), or any
interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement
or instrument relating to such indebtedness or guarantee;
provided that (i) the aggregate amount of such indebtedness
of or guaranteed by the Company, any such Subsidiary
Borrower or any such Material Subsidiary, as the case may
be, including any interest or premium thereon, shall exceed
$75,000,000 (or the Equivalent Amount thereof) and (ii)
there shall be excluded for purposes of the foregoing any
such indebtedness or guarantee (A) in favor of any
department, agency, instrumentality or political subdivision
of the United States of America or any state thereof in
respect of any pollution control, industrial revenue bond or
other similar type of financing or (B) incurred to finance,
or otherwise relating primarily to, any assets, projects or
operations located or conducted primarily outside the United
States of America; provided, further, that the obligation of
the Company, any such Subsidiary Borrower or any such
Material Subsidiary, as the case may be, to pay such
indebtedness or guarantee
<PAGE>
referred to in clause (A) or (B) above is being contested in
good faith;
(f) the Company, any Subsidiary, any Material
Subsidiary or any two or more Subsidiaries which, if such
Subsidiaries were one Subsidiary, would be a Material
Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action
to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be
commenced against the Company, any Subsidiary Borrower, any
Material Subsidiary or any two or more Subsidiaries which,
if such Subsidiaries were one Subsidiary, would be a
Material Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be
entered against the Company or any Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(h) any member of the ERISA Group shall fail to pay
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
Material Plan shall be filed under Title IV 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 premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed
to administer any Material Plan; or a condition shall exist
by reason of
<PAGE>
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $50,000,000;
or
(i) a final, non-appealable judgment or order
enforceable by the courts of the United States or the United
Kingdom for the payment of money in excess of $50,000,000
(or the Equivalent Amount thereof) shall be rendered against
the Company or any Subsidiary and such judgment or order
shall continue unsatisfied for a period of 30 days;
then, and in every such event, the Agent shall (i) if
requested by the Required Banks, by notice to the Company
terminate the Commitments, and they shall thereupon
terminate, and (ii) if requested by Banks having Loans the
Dollar Amount of the principal amount of which is more than
51% of the Dollar Amount of the aggregate principal amount
of all the Loans, by notice to the Company and each
Subsidiary Borrower declare the full unpaid principal of and
accrued interest on the Loans and all other amounts payable
hereunder to be immediately due and payable, whereupon the
Commitments shall terminate and the Loans and such other
amounts shall be immediately due and payable, without
further notice, presentment, demand, protest or other
formality of any kind, all of which are hereby expressly
waived by the Company and each Subsidiary Borrower; provided
that in the case of the occurrence of an event referred to
in clause (f) or (g) above, the Commitments shall
automatically terminate and the full unpaid principal of and
accrued interest on the Loans and all other amounts payable
hereunder shall automatically become immediately due and
payable, without notice, presentment, demand, protest or
other formality of any kind, all of which are hereby
expressly waived by the Company and each Subsidiary
Borrower.
SECTION 6.02. Notice of Default. The Agent shall give
notice to the Company and each Subsidiary Borrower under
Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
<PAGE>
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers
under this Agreement and the Notes as are delegated to the
Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. Morgan Guaranty
Trust Company of New York shall have the same rights and
powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it
were not the Agent, and Morgan Guaranty Trust Company of New
York and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the
Company or any Subsidiary or any affiliate thereof as if it
were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the
Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Agent
shall not be required to take any action with respect to any
Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may
consult with legal counsel (who may be counsel for any
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor
any of its directors, officers, agents or employees shall be
liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any
of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made
in connection with this Agreement or any Borrowing
hereunder; (ii) the performance or observance of any of the
covenants or agreements of any Borrower; (iii) the
satisfaction of any condition specified in Article III,
<PAGE>
except receipt of items required to be delivered to the
Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur
any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may
be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably
in accordance with its Commitment, indemnify the Agent (to
the extent not reimbursed by the Company) against any cost,
expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result
from the Agent's gross negligence or willful misconduct)
that the Agent may suffer or incur in connection with this
Agreement or any action taken or omitted by the Agent
hereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the
Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at
any time by giving written notice thereof to the Banks and
the Company. Upon any such resignation, the Required Banks
shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which 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 $200,000,000. Upon
the acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations
<PAGE>
hereunder. After any retiring Agent's resignation hereunder
as Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. (a) If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing (other than
a Money Market Absolute Rate Loan):
(1) the Agent is advised by the Reference Banks
that deposits in the applicable currency (in the
applicable amounts) are not being offered to the
Reference Banks in the relevant market for such
Interest Period, or
(2) the Required Banks advise the Agent that the
Adjusted CD Rate or the London Interbank Offered Rate,
as the case may be, as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Currency Loans or Money
Market LIBOR Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the Company
and the Banks, whereupon until the Agent notifies the
Company that the circumstances giving rise to such notice no
longer exist: (A)(i) if such circumstances relate to CD
Loans, the obligations of the Banks to make, or to continue
or convert outstanding Loans as or into, CD Loans shall be
suspended or (ii) if such circumstances relate to the London
Interbank Offered Rate, the New York Interbank Offered Rate
shall replace the London Interbank Offered Rate for purposes
of interest rate determinations hereunder for Euro-Currency
Borrowings and Money Market LIBOR Borrowings for such
Interest Period (and all references herein to the London
interbank market and the London Interbank Offered Rate for
such purposes shall, unless the context otherwise requires,
be deemed to be references to the New York interbank market
and the New York Interbank Offered Rate, respectively), as
the case may be, and (B) unless the Company notifies the
Agent at least one Domestic Business Day before the date of
the making or conversion or continuation of any
<PAGE>
Group of Fixed Rate Loans for which a Notice of Borrowing or
Notice of Interest Rate Election has previously been given
that it elects not to borrow, continue or convert (as the
case may be) on such date or that it elects to do so in
another currency such that clause (1) or (2) above is not
applicable thereto,
(i) if such Group of Fixed Rate Loans consists of
CD Loans, such CD Loans shall instead be made,
converted into or continued (as the case may be) (x) as
a Group of Euro-Currency Loans if the relevant Borrower
so elects by notice to the Agent and all of the
procedures set forth herein for making, converting into
or continuing Euro-Currency Loans, as the case may be
(including the required notice to the Banks but
excluding the three Euro-Currency Business Days' notice
required by Section 2.02 or 2.06), can be complied with
at such time or (y) as a Money Market LIBOR Borrowing
if the relevant Borrower so elects by notice to the
Agent and all of the procedures set forth herein for a
Money Market LIBOR Borrowing (including the required
notice to the Banks) can be complied with at such time
or (z) if neither of the foregoing types of Loans or
Borrowings is elected or is possible, as Base Rate
Loans,
(ii) if such Group of Fixed Rate Loans consists of
Euro-Currency Loans, the interest rate for such Group
shall be determined on the basis of the New York
Interbank Offered Rate if all of the procedures set
forth herein for making, converting into or continuing
Euro-Currency Loans (as the case may be) on such basis
(including the required notice to the Banks) can be
complied with at such time or, if clause (1) or (2) of
this subsection is applicable to the New York Interbank
Offered Rate at such time, such Group of Euro-Currency
Loans shall instead be made, converted into or
continued (as the case may be) (x) as a Group of CD
Loans if the relevant Borrower so elects by notice to
the Agent and all of the procedures set forth herein
for making, converting into or continuing CD Loans, as
the case may be (including the required notice to the
Banks but excluding the three Domestic Business Days'
notice required by Section 2.02 or 2.06), can be
complied with at such time or (y) if making, converting
into or continuing such Loans as CD Loans is not
elected or is not possible, then such Euro-Currency
Loans shall instead be made or converted into as a
Group
<PAGE>
of Base Rate Loans; provided that, if such
Euro-Currency Loans were to be denominated in a
currency other than Dollars, the principal amount of
the CD Loans or Base Rate Loans, as the case may be,
shall be the Dollar Amount of the principal amount of
such Euro-Currency Loans, and
(iii) if such Fixed Rate Borrowing is a Money
Market LIBOR Borrowing, the interest rate for such
Money Market LIBOR Borrowing shall be determined on the
basis of the New York Interbank Offered Rate if all of
the procedures set forth herein for a Money Market
LIBOR Borrowing on such basis (including the required
notice to the Banks) can be complied with at such time
or, if clause (1) or (2) of this subsection is
applicable to the New York Interbank Offered Rate at
such time, the Money Market LIBOR Loans comprising such
Borrowing shall be made in Dollars in a principal
amount equal to the Dollar Amount of the principal
amount of such Money Market LIBOR Borrowing and shall
bear interest for each day from and including the first
day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such
day.
(b) If clause (1) or (2) of subsection (a) of this
Section becomes applicable when the New York Interbank
Offered Rate has replaced the London Interbank Offered Rate
hereunder, then the Agent shall give notice to the Company
of such condition and the Company and the Agent (in
consultation with the Banks) shall promptly enter into
negotiations in good faith with a view to agreeing upon an
alternative basis (a "Substitute Basis") acceptable to the
Company and the Banks and applicable to all Borrowers for
determining the interest rate which shall be applicable to
the affected Euro-Currency Loans or Money Market LIBOR
Borrower, which rate shall reflect the cost to the Banks of
maintaining such Euro-Currency Loans plus the Euro-Currency
Margin or maintaining such Money Market LIBOR Loans plus any
applicable Money Market Margin, as the case may be. If,
prior to the expiration of 20 days from the date of such
notice by the Agent, the Company and the Banks shall agree
upon a Substitute Basis, interest on such Euro-Currency
Loans or Money Market LIBOR Loans for the affected Interest
Periods commencing during the period beginning two
Euro-Currency Business Days after the date of such notice
and ending on the date three Euro-Currency Business Days
after the Agent notifies the Company and the Banks that the
condition specified
<PAGE>
in clause (1) or (2) of subsection (a) of this Section has
ceased to be in effect shall be determined on such
Substitute Basis. Each Subsidiary Borrower, by executing and
delivering this Agreement, constitutes and appoints the
Company its authorized agent for purposes of determining the
Substitute Basis applicable to Loans of such Subsidiary
Borrower and agrees to be bound by any agreement hereunder
by the Company to any such Substitute Basis. If no such
agreement has been reached by the expiration of such 20-day
period, the Agent shall so notify the Banks and each Bank
shall, within ten days after the date of such notice, notify
the Company (through the Agent) of the rate (or the basis of
determining the rate) at which it is prepared to maintain
such Euro-Currency Loans or Money Market LIBOR Loans held by
it hereunder for the affected Interest Periods (which rate
shall reflect the cost to such Bank of maintaining such
Loans plus the Euro-Currency Margin or plus any applicable
positive Money Market Margin, as the case may be) and such
rate (or basis) shall be applicable to such Euro-Currency
Loans or Money Market LIBOR Loans, as the case may be, held
by it for the affected Interest Periods applicable thereto
referred to in the preceding sentence. The Agent shall
determine the total amount of interest payable by each
affected Borrower on each date for the payment of interest
hereunder determined in accordance with this subsection (b)
(to the extent it has received the necessary information
from the Banks) and notify such Borrower of such total
amount (provided that no Bank's right to receive any
interest payable to it hereunder shall be impaired by its
failure to provide such information to the Agent). The
Company shall have the right at any time to suspend the
obligation of each Bank notifying a rate (or basis) pursuant
to the second preceding sentence of this subsection to make
Euro-Currency Loans.
SECTION 8.02. Illegality. If, after June 5, 1998 the
adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall make
it unlawful or impossible for any Bank (or its Applicable
Lending Office) to make, maintain or fund its Euro-Currency
Loans and such Bank shall so
<PAGE>
notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks, the Company and each Subsidiary
Borrower, whereupon until such Bank notifies the Company,
each Subsidiary Borrower and the Agent that the
circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make, convert into or
continue Euro-Currency Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section,
such Bank shall designate a different Applicable Lending
Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such notice is
given, each affected Euro-Currency Loan of such Bank then
outstanding shall be converted to a Base Rate Loan (or, if
any such Borrower so elects by at least one Domestic
Business Day's notice to the Agent and such Bank, a CD Loan
or, subject to Section 2.03 and the willingness of such Bank
in its own discretion to submit a Money Market Quote, a
Money Market Absolute Rate Loan) either (a) on the last day
of the then current Interest Period applicable to such
Euro-Currency Loan if such Bank may lawfully continue to
maintain and fund such Loan to such day or (b) immediately
if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day, in any
case with an Interest Period coincident with the remaining
term of the Interest Period applicable to such affected
Euro-Currency Loan of such Borrower, and such Bank shall
make such a Domestic Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If
on or after (x) June 5, 1998, in the case of any Syndicated
Loan or any obligation to make Syndicated Loans or (y) the
date of the related Money Market Quote, in the case of any
Money Market Loan, the adoption of any applicable law, rule
or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other similar
charge with respect to its Fixed Rate Loans, its Notes
or its obligation to make, convert into or continue
Fixed Rate Loans, or shall change the
<PAGE>
basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts
due under this Agreement in respect of its Fixed Rate
Loans or its obligation to make, convert into or
continue Fixed Rate Loans (except for changes in the
rate of tax on the overall net income of such Bank or
its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive
office or Applicable Lending Office is located, and
except as provided in clause (d) below) or
(ii) shall impose, modify or deem applicable any
reserve, special deposit, deposit insurance assessment
or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding (A) with
respect to any CD Loan any such requirement included in
an applicable Domestic Reserve Percentage and (B) with
respect to any Euro-Currency Loan or Money Market LIBOR
Loan any such requirement included in an applicable
Euro-Currency Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended
by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending
Office) or on the United States market for certificates
of deposit or the London interbank market any other
condition affecting its Fixed Rate Loans, its Notes or
its obligation to make, convert into or continue Fixed
Rate Loans,
and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of
making, converting into or maintaining any Fixed Rate Loan,
or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this
Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15
days after demand by such Bank (with a copy to the Agent),
the Borrower of each affected Fixed Rate Loan or owing the
affected sum shall pay to such Bank (without duplication of
amounts otherwise payable hereunder) such additional amount
or amounts as will compensate such Bank for such increased
cost or reduction with respect to such affected Fixed Rate
Loan or such affected sum.
<PAGE>
(b) If any Bank shall have reasonably determined that,
after June 5, 1998, the adoption of any applicable law, rule
or regulation regarding capital adequacy or any change
therein, or any change in the interpretation or
administration thereof by any governmental authority,
central bank or comparable agency charged with the
interpretation or administration thereof, or the making of
any request or the issuance of any directive regarding
capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has
or has had the effect of reducing the rate of return on the
capital of such Bank (or its Parent) as a consequence of its
obligations hereunder to a level below that which such Bank
(or its Parent) could have achieved but for such adoption,
change or compliance (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Agent),
the relevant Borrower or (if such Bank is unable to
reasonably allocate such effect among the Borrowers) the
Company shall pay to such Bank (without duplication of
amounts otherwise payable hereunder) such additional amount
or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Company and the
Agent of any event of which it has knowledge, occurring
after June 5, 1998, which will entitle such Bank to
compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section, setting forth
the additional amount or amounts to be paid to it hereunder
and setting forth in reasonable detail the basis for such
compensation shall be conclusive in the absence of manifest
error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) This Section 8.03 shall not apply to (i) any
liabilities with respect to Foreign Taxes, Other Taxes or
liabilities that would be Foreign Taxes or Other Taxes in
the absence of the exclusionary language in the first
sentence of Section 2.16(c), all of which shall be governed
by Section 2.16, or (ii) any liabilities with respect to
taxes, duties or similar
<PAGE>
charges that would be described in clauses (i) through (v)
of the first sentence of Section 2.16(c) if Section 2.16(c)
applied to the Company and to Subsidiary Borrowers other
than Foreign Subsidiary Borrowers.
SECTION 8.04. Substitute Loans. If (i) the obligation
of any Bank to make, convert into or continue Euro-Currency
Loans has been suspended pursuant to Section 8.01(b) or 8.02
or (ii) any Bank has demanded compensation under Section
8.03(a) and the Borrower shall, by at least five
Euro-Currency Business Days' prior notice to such Bank
through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until
such Bank notifies the Company that the circumstances giving
rise to such suspension or demand for compensation no longer
apply:
(a) all Loans denominated in Dollars which would
otherwise be made, converted into or continued by such Bank
as CD Loans or Euro-Currency Loans, as the case may be,
shall be made instead as Base Rate Loans or, if any Borrower
shall so elect in its Notice of Borrowing or Notice of
Interest Rate Election, CD Loans or Euro-Currency Loans
(whichever type is not affected by such circumstances) for
an Interest Period coincident with the related Group of
Fixed Rate Loans,
(b) all Loans denominated in a currency other than
Dollars which would otherwise be made, converted into or
continued by such Bank as Euro-Currency Loans shall be made
instead as Base Rate Loans or, if any Borrower shall so
elect in its Notice of Borrowing or Notice of Interest Rate
Election, CD Loans, in each case for an Interest Period
coincident with the related Group of Euro-Currency Loans and
in Dollars in a principal amount equal to the Dollar Amount
of the principal amount of such Euro-Currency Loans, and
(c) after each of its CD Loans or Euro-Currency Loans,
as the case may be, has been repaid or converted, all
payments of principal which would otherwise be applied to
repay such Fixed Rate Loans shall instead be applied to
repay its Loans made pursuant to Section 8.02 or clauses (a)
or (b) above.
SECTION 8.05. Regulation D Compensation. For so long as
any Bank maintains reserves against "Eurocurrency
liabilities" (or any other category of liabilities which
includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of
extensions of credit or
<PAGE>
other assets which includes loans by a non-United States
office of such Bank to United States residents), and as a
result the cost to such Bank (or its Euro-Currency Lending
Office) of making or maintaining its Euro-Currency Loans is
increased, then such Bank may require the Borrower to pay,
contemporaneously with each payment of interest on the
Euro-Currency Loans, additional interest on the related
Euro-Currency Loan of such Bank at a rate per annum up to
but not exceeding the excess of (i) (A) the applicable
London Interbank Offered Rate divided by (B) one minus the
Euro-Currency Reserve Percentage over (ii) the applicable
London Interbank Offered Rate. Any Bank wishing to require
payment of such additional interest (x) shall so notify the
Borrower and the Agent, in which case such additional
interest on the Euro-Currency Loans of such Bank shall be
payable to such Bank at the place indicated in such notice
with respect to each Interest Period commencing at least
four Euro-Currency Business Days after the giving of such
notice and (y) shall furnish to the Borrower at least five
Euro-Currency Business Days prior to each date on which
interest is payable on the Euro-Currency Loans an officer's
certificate setting forth the amount to which such Bank is
then entitled under this Section (which shall be consistent
with such Bank's good faith estimate of the level at which
the related reserves are maintained by it). Each such
certificate shall be accompanied by such information as the
Borrower may reasonably request as to the computation set
forth therein.
SECTION 8.06. Substitution of Bank. If (i) the
obligation of any Bank to make Euro-Currency Loans has been
suspended pursuant to Section 8.01(b) or 8.02 or (ii) any
Bank has demanded compensation under Section 8.03 or 8.05,
the Company shall have the right, with the assistance of the
Agent, to seek a satisfactory substitute bank or banks
(which may be one or more of the Banks) to purchase the
Loans and Notes (if any) of such Bank for cash in the
currency in which the principal thereof is denominated
without recourse to such Bank and assume the Commitment of
such Bank.
<PAGE>
ARTICLE 9
THE GUARANTEE
SECTION 9.01. The Guarantee. The Company hereby
unconditionally guarantees that the principal of and
interest on each Loan of each Subsidiary Borrower and all
other amounts payable by each such Subsidiary Borrower
hereunder and under each such Subsidiary Borrower's Loans
shall be promptly paid in full when due (whether at stated
maturity, by acceleration or otherwise) in accordance with
the terms hereof and thereof and the Company hereby
unconditionally agrees that upon default in the full payment
when due (whether at stated maturity, by acceleration or
otherwise) of any of such principal, interest or other
amounts, the Company shall forthwith pay the same at the
place, in the currency and in the manner specified in this
Agreement.
SECTION 9.02. Guarantee Unconditional. The obligations
of the Company hereunder shall be unconditional and absolute
and, without limiting the generality of the foregoing, shall
not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement,
compromise, waiver or release in respect of any
obligation of a Subsidiary Borrower under this
Agreement or any Note, by operation of law or
otherwise;
(ii) any modification or amendment of or
supplement to this Agreement or any Note;
(iii) any release, non-perfection or invalidity of
any direct or indirect security for any obligation of a
Subsidiary Borrower under this Agreement or any Note;
(iv) any change in the corporate existence,
structure or ownership of a Subsidiary Borrower, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting a Subsidiary Borrower or its
assets or any resulting release or discharge of any
obligation of a Subsidiary Borrower contained in this
Agreement or any Note;
(v) the existence of any claim, setoff or other
rights which the Company may have at any time against a
Subsidiary Borrower, the Agent, any Bank or any other
Person, whether in connection
<PAGE>
herewith or with any unrelated transactions, provided
that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating
to or against a Subsidiary Borrower for any reason of
this Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the
payment by a Subsidiary Borrower of the principal of or
interest on any Loan or any other amount payable by a
Subsidiary Borrower under this Agreement; or
(vii) any other act or omission to act or delay of
any kind by a Subsidiary Borrower, the Agent, any Bank
or any other Person or any other circumstance
whatsoever which might, but for the provisions of this
Section, constitute a legal or equitable discharge of
the Company's obligations hereunder.
The Company's obligations hereunder shall remain in
full force and effect until the principal of and interest on
all of the Loans of all the Subsidiary Borrowers and all
other amounts payable by the Subsidiary Borrowers under this
Agreement shall have been paid in full and the Commitments
shall have terminated.
SECTION 9.03. Waiver by the Company. The Company hereby
irrevocably and expressly waives acceptance hereof,
diligence, presentment and protest and any requirement that
at any time any right or power be exhausted or any action be
taken by any Person against any Subsidiary Borrower or other
Person and all notices and demands whatsoever.
SECTION 9.04. Subrogation; Stay of Acceleration. Upon
making any payment with respect to any Subsidiary Borrower
hereunder, the Company shall be subrogated to the rights of
the payee against such Subsidiary Borrower with respect to
such payment; provided that the Company shall not enforce
any payment by way of subrogation until all amounts of
principal of and interest on the Loan and all other amounts
payable by the Subsidiary Borrowers under this Agreement
have been paid in full. The Company agrees that, as between
the Company, on the one hand, and the Banks and the Agent,
on the other, the obligations of each Subsidiary Borrower
guaranteed under this Article may be declared
<PAGE>
to be forthwith due and payable as provided in Article VI
hereof for purposes of this Article notwithstanding any
stay, injunction or other prohibition preventing such
declaration as against such Subsidiary Borrower and that, in
the event of such declaration, such obligations (whether or
not due and payable by such Subsidiary Borrower) shall
forthwith become due and payable by the Company for purposes
of this Article.
SECTION 9.05. Reinstatement in Certain Circumstances.
If at any time any payment of the principal of or interest
on any Loan of any Subsidiary Borrower or any other amount
payable by a Subsidiary Borrower under this Agreement is
rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of such Subsidiary
Borrower or otherwise, the Company's obligations hereunder
with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices and other
communications to any party provided for herein shall be in
writing (including bank wire, telex, facsimile transmission,
telegraph, cable or similar writing) and shall be given to
such party: (x) in the case of any Borrower or the Agent, at
its address, facsimile or telex number set forth on the
signature pages hereof, (y) in the case of any Bank, at its
address, facsimile or telex number set forth in its
Administrative Questionnaire or (z) in the case of any
party, at such other address as shall be designated by such
party in a notice to the Company, each Subsidiary Borrower
and the Agent. All notices and other communications shall be
effective (i) if given by telex or facsimile transmission,
when such telex is transmitted to the telex or facsimile
number specified in this Section and the appropriate
answerback or telephonic confirmation (in the case of any
facsimile transmission) is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid, or
(iii) if given by any other means, when delivered at the
address specified in this Section; provided that notices to
the Agent under Article II or VIII hereof shall not be
effective until received.
<PAGE>
SECTION 10.02. No Waiver. No failure on the part of the
Agent or any Bank to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power
or privilege under this Agreement or any Note shall operate
as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this
Agreement or any Note preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
SECTION 10.03. Governing Law. This Agreement, the Notes
and the requests, invitations and offers provided for herein
shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 10.04. Expenses. The Company agrees to pay or
reimburse (i) the Agent for paying the reasonable fees and
expenses of Davis Polk & Wardwell, special counsel to the
Agent, in connection with (a) the preparation, execution and
delivery of this Agreement and the Notes (if any) and the
making of the Borrowings hereunder and (b) any amendment,
modification, consent or waiver of any of the terms of this
Agreement or any of the Notes and (ii) the Agent or any Bank
for paying all reasonable costs and expenses of the Banks
and the Agent (including reasonable counsel fees) in
connection with the enforcement of this Agreement or any
Note and any collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom. The Company
hereby agrees to indemnify the Agent and each Bank, their
respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party
thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of
Loans hereunder; provided that no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own
gross negligence or willful misconduct as determined by a
court of competent jurisdiction. If and to the extent that
the foregoing indemnification is unenforceable for any
<PAGE>
reason, the Company agrees to make the maximum contribution
to the payment and satisfaction of each of such losses,
liabilities, claims, damages or expenses which is
permissible under applicable law.
SECTION 10.05. Amendments, Etc. Any provision of this
Agreement or the Notes may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by
the Company and the Required Banks (and, if the rights or
duties of the Agent are affected thereby, by the Agent);
provided that the Agent may, with the consent of the Company
(which shall not be unreasonably withheld), specify by
notice to the Banks modifications in the procedures set
forth in Section 2.03; and provided further that no such
amendment, waiver or modification shall, unless signed by
all the Banks, (i) increase the Commitment of any Bank or
subject any Bank to any additional obligation (except for
increases to the Commitment of any Bank pursuant to Section
8.06 to which such Bank has agreed in writing), (ii) reduce
the principal of or rate of interest on any Loan or any fees
hereunder or the currency of payment thereof, (iii) postpone
the date fixed for any payment of principal of or interest
on any Loan or any fees hereunder, (iv) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any
action under this Section or any other provision of this
Agreement or (v) change Article IX or Section 10.11 hereof.
SECTION 10.06. Counterparts; Effectiveness. This
Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement
shall become effective when the Agent shall have received
counterparts hereof signed by the Company, each Bank listed
on the signature pages hereof and the Agent (such date, the
"Effective Date"). The Agent shall notify the Company and
the Banks of the Effective Date of this Agreement by
delivery of a notice in the form of Exhibit I hereto, and
the date specified therein shall be conclusive.
SECTION 10.07. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that no
<PAGE>
Borrower may assign or otherwise transfer any of its rights
under this Agreement (other than pursuant to a transaction
expressly permitted by Section 5.04) without the prior
written consent of all Banks and the Agent.
(b) Any Bank may at any time grant to one or more banks
or other institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In
the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the
Borrowers and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the
Borrowers and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such
participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this
Agreement described in clause (ii), (iii) or (v) of Section
10.05 without the consent of the Participant. The Borrowers
agree that each Participant shall, to the extent provided in
its participation agreement, be entitled to the benefits of
Sections 2.13, 2.15, 2.16, 10.04 and Article VIII with
respect to its participating interest, with such benefits to
be determined as if the related Bank had not granted such
participation. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this
subsection (b).
(c) With (and subject to) the subscribed consent of the
Company and the Agent, any Bank may at any time assign to
one or more banks or other institutions (each an "Assignee")
all, or a proportionate part of all, of its rights and
obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially
the form of Exhibit H hereto executed by such Assignee and
such transferor Bank; provided that if an Assignee is an
affiliate of such transferor Bank or a Bank prior to giving
effect to
<PAGE>
such assignment, no such consent shall be required (but
prompt notice thereof shall be given to the Agent). Upon
execution and delivery of such instrument and payment by
such Assignee to such transferor Bank of an amount equal to
the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Agent and the
Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500.
(d) Any Bank may at any time assign all or any portion
of its rights under this Agreement and its Notes (if any) to
a Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater
payment under Section 2.16, 8.03 or 8.05 than such Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Company's prior written consent or by reason of the
provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(f) If any Reference Bank assigns its Loans to an
unaffiliated institution, the Agent shall, in consultation
with the Company and with the consent of the Required Banks,
appoint another bank to act as a Reference Bank hereunder.
SECTION 10.08. Survival. The obligations of the Company
and each Subsidiary Borrower under Article VIII and Sections
2.16, 9.05 and 10.04 shall survive the repayment of the
Loans and the termination of the Commitments.
<PAGE>
SECTION 10.09. Acknowledgment. Each Borrower
acknowledges that the Banks have entered into this Agreement
in reliance on each Borrower's assurance that such Borrower
does not intend to use the proceeds of any Borrowings
hereunder in a manner which would violate any applicable law
or governmental rule or regulation.
SECTION 10.10. Headings. The Table of Contents and
Article and Section headings used herein shall not affect
the interpretation of any provision of this Agreement.
SECTION 10.11. Sharing of Setoffs. Each Bank agrees
that, if it shall, by exercising any right of setoff or
counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest due with
respect to any of its Loans which is greater than the
proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect
to any Loan made by such other Bank (other than
disproportionate payments to any Bank provided for by this
Agreement), the Bank receiving such proportionately greater
payment shall purchase such participations in the Loans made
by the other Banks, and such other adjustments shall be
made, as may be required so that all such payments of
principal and interest with respect to the Loans made by the
Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank
to exercise any right of setoff or counterclaim it may have
and to apply the amount recovered thereby to the payment of
indebtedness of the relevant Borrower other than its
indebtedness under the Loans. If under any applicable
bankruptcy, insolvency or other similar law, any Bank
receives a secured claim in lieu of a setoff to which this
Section applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Banks entitled
under this Section to share in the benefits of any recovery
on such secured claim. Each Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that
any Bank which is a holder of a participation in a Loan of
such Borrower, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such
participation as fully as if such holder of a participation
were a direct creditor of such Borrower in the amount of
such participation.
<PAGE>
SECTION 10.12. Collateral. Each of the Banks represents
to the Agent and each of the other Banks (and solely for the
benefit of the Agent and each of the other Banks) that it in
good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.13. Consent to Jurisdiction. (a) Each
Borrower irrevocably submits to the jurisdiction of any
federal or New York State court sitting in New York City
over any suit, action or proceeding arising out of or
relating to this Agreement or any Note of such Borrower.
Each Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit,
action or proceeding brought in such court and any claim
that any suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. Each Borrower
agrees that a final, nonappealable judgment in any such
suit, action or proceeding brought in such a court shall be
conclusive and binding upon such Borrower and may be
enforced in any federal or New York State court sitting in
New York City (or any other courts to the jurisdiction of
which such Borrower is or may be subject) by a suit upon
such judgment, provided that service of process is effected
upon such Borrower in one of the manners specified in
subsection (c) of this Section or as otherwise permitted by
law.
(b) Appointment of Agent. Each Foreign Subsidiary
Borrower irrevocably designates and appoints CT Corporation
System, having an office on the date hereof at 1633
Broadway, New York, New York 10019, as its authorized agent,
to accept and acknowledge on such Foreign Subsidiary
Borrower's behalf service of any and all process which may
be served in any suit, action or proceeding of the nature
referred to in subsection (a) of this Section in any federal
or New York State court sitting in New York City. Each such
Foreign Subsidiary Borrower covenants and agrees to maintain
the designation and appointment of such an authorized agent
until all amounts payable hereunder shall have been paid in
full in accordance with the provisions hereof or thereof and
the Commitments shall have terminated. If any such agent
shall cease so to act, each Foreign Subsidiary Borrower
covenants and agrees to designate and appoint without delay
another such agent satisfactory to the Agent and to promptly
deliver to
<PAGE>
the Agent evidence in writing of such other agent's
acceptance of such appointment.
(c) Service of Process. Each Borrower hereby consents
to process being served in any suit, action or proceeding
referred to in the first sentence of subsection (a) of this
Section in any federal or New York State court sitting in
New York City (i) if such Borrower is a Foreign Subsidiary
Borrower, by service of process upon the agent of such
Foreign Subsidiary Borrower for service of process appointed
as provided in subsection (b) of this Section (provided
that, to the extent lawful and possible, written notice of
said service upon such agent shall be mailed by registered
or certified air mail, postage prepaid, return receipt
requested, to such Foreign Subsidiary Borrower at its
address specified in Section 10.01 or to any other address
of which such Foreign Subsidiary Borrower shall have given
written notice to the Agent) and (ii) if such Borrower is
not a Foreign Subsidiary Borrower, by mailing a copy thereof
by registered or certified air mail, postage prepaid, return
receipt requested, to such Borrower at its address specified
in Section 10.01 or to any other address of which such
Borrower shall have given written notice to the Agent. Each
Borrower irrevocably waives, to the fullest extent permitted
by law, all claim of error by reason of any such service in
any suit, action or proceeding brought by the Agent or any
Bank. Each Borrower agrees that such service shall be deemed
in every respect effective service of process upon such
Borrower in any such suit, action or proceeding and shall,
to the fullest extent permitted by law, be taken and held to
be valid and personal service upon and personal delivery to
such Borrower.
(d) No Limitation on Service or Suit. Nothing in this
Article shall affect the right of the Agent or any Bank to
serve process in any other manner permitted by law or limit
the right of the Agent or any Bank to bring proceedings
against any Borrower in the courts of the jurisdiction of
the Bank's Lending Office or the courts of any jurisdiction
or jurisdictions in which such Borrower has any assets.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
above written.
THE COMPANY
ATLANTIC RICHFIELD COMPANY
By
-----------------------------
----------------------------
Title:
Address for Notices:
Atlantic Richfield Company
515 South Flower Street
Los Angeles, CA 90071
Attention: Assistant Treasurer,
Banking
Telex No.: 677415
answerback: ARCO PLAZA LFA
Telephone No.: (213) 486-0641
(213) 486-1776
Telecopier No.: (213) 486-3544
(213) 486-3006
(213) 486-2836
<PAGE>
COMMITMENTS BANKS
$750,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
-----------------------------
Title:
<PAGE>
$750,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By
-------------------------------
Title:
<PAGE>
$750,000,000 CITICORP USA, INC.
By
------------------------------
Title:
<PAGE>
$750,000,000 THE CHASE MANHATTAN BANK, N.A.
By
-------------------------------
Title:
- ------------------
Total Commitments
$3,000,000,000
================
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
--------------------------------
Title:
c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Jeannie Mattson
Telephone: 302-634-1938
Telecopier: 302-634-1852
<PAGE>
EXHIBIT A
NOTE
New York, New York
___________, 19__
For value received, [NAME OF BORROWER], a corporation
(the "Borrower"), promises to pay to the order of (the
"Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to
below on the last day of the Interest Period relating to
such Loan. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and
at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made
(i) if in Dollars, in lawful money of the United States in
Federal or other immediately available funds at the office
of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York or (ii) if in any other currency,
in such funds as may then be customary for the settlement of
international transactions in such other currency at the
place specified for the payment thereof pursuant to the
Credit Agreement.
All Loans made by the Bank, the respective maturities
thereof and all repayments of the principal thereof shall be
recorded by the Bank and, and may, if such Bank so elects in
connection with any transfer or enforcement of its Note of
any Borrower, be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the
failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
$3,000,000,000 Credit Agreement dated as of June 5, 1998
among Atlantic Richfield Company, certain subsidiaries of
Atlantic Richfield Company, the banks listed on the
signature pages thereof and Morgan Guaranty Trust Company of
New York, as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity
hereof.
<PAGE>
Pursuant to the Credit Agreement, payment of principal
and interest on this Note is unconditionally guaranteed by
Atlantic Richfield Company, a Delaware corporation.*
[NAME OF BORROWER]
By:________________________
Title:
- --------
1 Include this sentence in the Note of each Subsidiary Borrower.
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- -----------------------------------------------------------------------------
Date Amount Type of Amount Maturity Notation
of Loan of Date Made
Loan Principal By
Repaid
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
[Date]
To: Morgan Guaranty Trust Company of New York
(the "Agent")
60 Wall Street
New York, New York 10260
From: [Name of Borrower]
Re: $3,000,000,000 Credit Agreement dated as of
June 5,1998 (the "Credit Agreement") among
Atlantic Richfield Company, certain
subsidiaries of Atlantic Richfield Company, the
Banks listed on the signature pages thereof and
the Agent
We hereby give notice pursuant to Section 2.03 of the
Credit Agreement that we request Money Market Quotes [from
Banks incorporated in, or formed under the laws of, [name of
country] or Banks whose Money Market Lending Office for the
Borrowings(s) set forth below will be located in such
country (a "Qualifying Bank")]* for the following proposed
Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount** Interest Period***
$
Such Money Market Quotes should offer a Money Market
[Margin] [Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Capitalized terms used herein have the meanings
assigned to them in the Credit Agreement.
[NAME OF BORROWER]
- --------------------
1 Include when Borrower has requested Money Market
Quotes only from Qualifying Banks pursuant to Section
2.03(b)(iii).
2Amount must be $5,000,000 or a larger multiple of
$1,000,000.
3Not less than one month (LIBOR Auction) or not less
than 7 days (Absolute Rate Auction), subject to the
provisions of the definition of Interest Period.
By:
------------------------------
Title:
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
[Date]
To: [Name of Bank]
[address of Bank]
Re: Invitation for Money Market Quotes to [Name of
Borrower] (the "Borrower")
Pursuant to Section 2.03 of the $3,000,000,000 Credit
Agreement dated as of June 5, 1998 (the "Credit Agreement")
among Atlantic Richfield Company, certain subsidiaries of
Atlantic Richfield Company, the Banks listed on the
signature pages thereof and the undersigned, as Agent, we
are pleased on behalf of the Borrower to invite you [in your
capacity as a Qualifying Bank]* to submit Money Market
Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Please respond to this invitation by no later than
[3:00 p.m.] [10:00 a.m.] [9:30 a.m.] [(London Time)] [(New
York City time)] on [date].
- -----------------
1 Include when Borrower has requested Money Market
Quotes only from Qualifying Banks pursuant to Section
2.03(b)(iii).
<PAGE>
Capitalized terms used herein have the meanings
assigned to them in the Credit Agreement.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By:
-----------------------------
Authorized Officer
<PAGE>
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Attention: Funding Services -- Loan Sale Group
Re: Money Market Quote to [Name of Borrower] (the
"Borrower")
In response to your invitation on behalf of the
Borrower dated , 19 , we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s)
in the following principal amounts, for the
following Interest Periods and at the
following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute
Rate*****]
$
$
[provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $ .]**
* As specified in the related Invitation for Money
Market Quotes.
(notes continued on following page)
<PAGE>
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the $3,000,000,000 Credit Agreement
dated as of June 5, 1998 (the "Credit Agreement") among
Atlantic Richfield Company, certain subsidiaries of Atlantic
Richfield Company, the Banks listed on the signature pages
thereof and yourselves, as Agent, irrevocably obligates us
to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part. Capitalized terms used herein
have the meanings assigned to them in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
-----------------------
By: Authorized Officer
Dated:
- ----------------
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 (or the Approximate Equivalent Amount thereof) or
a larger multiple of $1,000,000 (or the Approximate
Equivalent Amount thereof).
*** Not less than one month or not less than 7 days, as
specified in the related Invitation for Money Market Quotes.
****Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/10,000 of 1%) and
specify whether "PLUS" or "MINUS".
*****Specify rate of interest per annum (rounded to the
nearest 1/10,000th of 1%).
[5. We hereby represent and warrant, as of the date
hereof and as of the Date of Borrowing set forth in clause 3
above, that we are a Qualifying Bank.]
<PAGE>
EXHIBIT E
Certificate of Incumbency
I, , [Secretary/Assistant
Secretary] of [name of Borrower] (the "Borrower"), hereby
certify as follows:
(1) Each of the following named individuals is an
Authorized Officer (as that term is defined in the
$3,000,000,000 Credit Agreement dated as of June 5, 1998
among Atlantic Richfield Company, certain subsidiaries of
Atlantic Richfield Company, the Banks named therein and
Morgan Guaranty Trust Company of New York, as Agent (the
"Credit Agreement")) of the Borrower and each has been duly
elected to and is now holding the office indicated, and the
signature appearing opposite each name is the genuine
signature of such Authorized Officer:
Title Name Signature
(2) Each of the following named individuals has been
duly designated as an "Authorized Representative" (as that
term is defined in the Credit Agreement) of the Borrower,
and the signature appearing opposite each name is the
genuine signature of such Authorized Representative:
Title Name Signature
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the seal of the Borrower this day of 19 .
-----------------------------
Secretary/Assistant Secretary
[SEAL]
<PAGE>
I, [name], [Treasurer/Assistant Secretary] of [name of
Borrower], do hereby certify that is, and at all times since
, 19 has been, the duly elected or appointed,
qualified and acting [Secretary/Assistant Secretary] of the
Borrower and that the signature set forth above is his
genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand this
day of , 19 .
-----------------------------
Treasurer/Assistant Secretary
<PAGE>
EXHIBIT F
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided
in Section 3.01of
the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
I am ____________________ of Atlantic Richfield Company
and as such have acted as counsel for [name of Borrower]
(the "Borrower") in connection with the $3,000,000,000
Credit Agreement dated as of June 5, 1998 (the "Credit
Agreement") among Atlantic Richfield Company, certain
subsidiaries of Atlantic Richfield Company, the banks listed
on the signature pages thereof and Morgan Guaranty Trust
Company of New York, as Agent. Terms defined in the Credit
Agreement are used herein as therein defined.
In connection with the opinions expressed below, I have
examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents,
instruments and corporate records as I have deemed necessary
to express the opinions hereinafter set forth. As to any
facts material to the following opinions which I did not
independently establish or verify, I have relied, to the
extent I deem such reliance proper, upon information
obtained from public officials and officers and employees of
the Borrower.
For purposes of this opinion, I have assumed the
genuineness of all signatures, other than signatures of
officers and employees of the Borrower or any of its
subsidiaries, appearing on the documents which I have
examined, the authenticity of all documents submitted to me
as originals, and the conformity to the originals of all
documents submitted to me as copies and the authenticity of
the originals of such copies.
Upon the basis of the foregoing, I am of the opinion
that:
<PAGE>
1. (a) The Borrower (i) is a corporation duly
incorporated, validly existing and in good standing under
the laws of [the jurisdiction of its incorporation] and (ii)
either is qualified to do business and in good standing in
each jurisdiction where the ownership of its properties or
the conduct of its business requires such qualification or
is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction.
(b) The Borrower has all corporate power and authority,
governmental permits, licenses, consents, authorizations,
orders and approvals and other authorizations as are
necessary to carry on its business substantially as
presently conducted.
(c) The execution, delivery and performance of this
Agreement [and of the Notes of the Borrower],* and
Borrowings under the Credit Agreement by the Borrower, are
within its corporate power and authority and have been duly
authorized by all necessary corporate proceedings.
(d) Neither such authorization nor the execution,
delivery and performance by the Borrower of the Credit
Agreement [or of the Notes of the Borrower thereunder], nor
any Borrowing thereunder by the Borrower when made, will
conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any law
or any regulation, or, to the best of my knowledge, any
order, writ, injunction or decree of any court or
governmental authority or of the Certificate of
Incorporation or By-Laws of the Borrower or result in the
violation or contravention of, or the acceleration of any
obligation under, or cause the creation of any Mortgage on
any of the properties of the Borrower pursuant to the
provisions of, any indenture, agreement or other instrument
representing Debt, or any other agreement material to the
Company and its Consolidated Subsidiaries, considered as a
whole, to which it is a party or by which it is bound.
(e) Assuming its due execution by the Banks and the
Agent, the Credit Agreement constitutes a valid and binding
agreement of the Borrower [and each Note of the Borrower
constitutes a valid and binding obligation of
- ------------------
1 References to Notes of the Borrower to be required only if
Notes are being delivered pursuant to the terms of the Credit
Agreement.
<PAGE>
the Borrower, in each case] enforceable in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
2. Except as disclosed in writing to the Banks, there is no
action, suit or proceeding pending or, to my knowledge,
threatened against or affecting the Borrower or any of its
subsidiaries in any court or before or by any arbitrator,
governmental department, agency or instrumentality, which is
reasonably likely to materially and adversely affect the ability
of the Borrower to perform its obligations under the Credit
Agreement and the Notes of the Borrower or which in any manner
draws into question the validity of the Credit Agreement [or the
Notes of the Borrower].
3. No consent, authorization, order or approval of (or
filing or registration with) any governmental commission, board
or other regulatory authority (other than routine reporting
requirements) is required for the execution, delivery and
performance by the Borrower of the Credit Agreement or the Notes
of the Borrower or for Borrowings under the Credit Agreement.
*4. Each of the Borrower's Material Subsidiaries is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and
has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted except for licenses, authorizations,
consents or approvals the absence of which will not materially
affect the business of the Borrower and its Consolidated
Subsidiaries taken as a whole.
I am a member of the Bars of the State[s] of ____________
and I do not purport to be an expert on the laws of any
jurisdictions other than the foregoing, the general corporation
law of the State of Delaware, and United States federal law. This
opinion is limited in all respects to such laws.*
This opinion is furnished to you solely for the benefit of
you and your Participants in connection with the transactions
contemplated by the Credit Agreement and
- ------------------
1 Include this paragraph if the Company is the Borrower.
<PAGE>
may not be used for any other purpose without my prior written
consent.
Very truly yours,
<PAGE>
EXHIBIT G
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of June 5, 1998 among
Atlantic Richfield Company, certain subsidiaries of Atlantic
Richfield Company, the banks listed on the signature pages
thereof (the "Banks") and Morgan Guaranty Trust Company of New
York, as Agent (the "Agent"), and have acted as special counsel
for the Agent for the purpose of rendering this opinion pursuant
to Section 3.01(iv) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments
and have conducted such other investigations of fact and law as
we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
[1. The execution, delivery and performance by the Borrower
of the Credit Agreement [and its Notes] are within the Borrower's
corporate powers and have been duly authorized by all necessary
corporate action.
2.] The Credit Agreement constitutes a valid and binding
agreement of the Borrower [and each Note of the Borrower
constitutes a valid and binding obligation of the Borrower, in
each case] enforceable in accordance with its terms, except as
the same may be limited by
<PAGE>
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New
York, the federal laws of the United States of America [and the
General Corporation Law of the State of Delaware]. In giving the
foregoing opinion, (i) we express no opinion as to the effect (if
any) of any law of any jurisdiction (except the State of New
York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect and (ii) we have
relied, without independent investigation, as to all matters
governed by the laws of [Borrower's jurisdiction of
incorporation], upon the opinion of , dated ,
19 , a copy of which has been delivered to you.
This opinion is rendered solely to you in connection with
the above matter. This opinion may not be relied upon by you for
any other purpose or relied upon by any other person without our
prior written consent.
Very truly yours,
<PAGE>
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ATLANTIC RICHFIELD
COMPANY (the "Company") and MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the $3,000,000,000 Credit Agreement dated
as of June 5, 1998 among the Company, the Assignor and the other
Banks party thereto, as Banks, and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans in an aggregate principal
amount at any time outstanding not to exceed $----------;
WHEREAS, Syndicated Loans made by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________
are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in
respect of a portion of its Commitment thereunder in an amount
equal to $__________ (the "Assigned Amount"), together with a
corresponding portion of its outstanding Syndicated Loans, and
the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such
terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as
follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in
the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment
<PAGE>
from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned
Amount, including the purchase from the Assignor of the
corresponding portion of the principal amount of the Syndicated
Loans made by the Assignor outstanding at the date hereof. Upon
the execution and delivery hereof by the Assignor, the Assignee,
the Company and the Agent and the payment of the amounts
specified in Section 3 required to be paid on the date hereof (i)
the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the
Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall,
as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee.
The assignment provided for herein shall be without recourse to
the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to
the Assignor on the date hereof in Federal funds an amount equal
to $_________*. It is understood that facility fees with respect
to the Assigned Amount accrued to the date hereof are for the
account of the Assignor and such fees accruing from and including
the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any
amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Company and the Agent. This
Agreement is conditioned upon the consent of the Company and the
Agent pursuant to Section 10.07(c) of the Credit Agreement. The
execution of this Agreement by the Company and the Agent is
evidence of this consent. Pursuant to Section 10.07(c) the
Company agrees to execute and deliver a Note [and to cause each
Subsidiary
- ----------------
1 Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by the
Assignee, net of any portion of any upfront fee to be paid by the
Assignor to the Assignee. It may be preferable in an appropriate
case to specify these amounts generically or by formula rather
than as a fixed sum.
<PAGE>
Borrower to execute and deliver a Note] payable to the order of
the Assignee to evidence the assignment and assumption provided
for herein.**
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial
condition, or statements of any Borrower, or the validity and
enforceability of the obligations of any Borrower in respect of
the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and
financial condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered by their duly authorized officers as
of the date first above written.
[ASSIGNOR]
----------------------
By:
Title:
[ASSIGNEE]
-----------------------
By:
Title:
ATLANTIC RICHFIELD COMPANY
-----------------------
By:
Title:
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MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
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By:
Title:
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EXHIBIT I
NOTICE OF EFFECTIVENESS
June __, 1998
Atlantic Richfield Company
515 South Flower Street
Los Angeles, California 90071
Attention: Assistant Treasurer, Banking
Dear Sir or Madam:
We hereby notify you that the "Effective Date", as defined
in the $3,000,000,000 Credit Agreement dated as of June 5, 1998
among Atlantic Richfield Company, the banks listed on the
signature pages thereof and Morgan Guaranty Trust Company of New
York, as Agent, has occurred as of the date first written above.
Very truly yours,
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Agent
By
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Title:
