SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2004
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to ___________
Commission file number 1-9210
---------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 95-4035997
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(Address of principal executive offices) (Zip Code)
(310) 208-8800
(Registrant's telephone number, including area code)
---------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding at June 30, 2004
------------------------------- ----------------------------
Common stock $.20 par value 391,698,256 shares
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
CONTENTS
PAGE
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets --
June 30, 2004 and December 31, 2003 2
Consolidated Condensed Statements of Operations --
Three and six months ended June 30, 2004 and 2003 4
Consolidated Condensed Statements of Cash Flows --
Six months ended June 30, 2004 and 2003 5
Notes to Consolidated Condensed Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 13
Item 3. Quantitative and Qualitative Disclosures About Market Risk 23
Item 4. Controls and Procedures 23
PART II OTHER INFORMATION
Item 1. Legal Proceedings 24
Item 4. Submission of Matters to a Vote of Security-Holders 24
Item 6. Exhibits and Reports on Form 8-K 25
1
PART I FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
JUNE 30, 2004 AND DECEMBER 31, 2003
(Amounts in millions)
2004 2003
================================================================================ ========== ==========
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 383 $ 683
Receivables, net 1,995 1,154
Inventories 449 510
Prepaid expenses and other 133 127
---------- ----------
Total current assets 2,960 2,474
LONG-TERM RECEIVABLES, net 225 264
INVESTMENTS IN UNCONSOLIDATED ENTITIES 1,503 1,155
PROPERTY, PLANT AND EQUIPMENT, net of accumulated
depreciation, depletion and amortization of $8,089 at
June 30, 2004 and $7,467 at December 31, 2003 14,339 14,005
OTHER ASSETS 318 270
---------- ----------
$ 19,345 $ 18,168
================================================================================ ========== ==========
The accompanying notes are an integral part of these financial statements.
2
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
JUNE 30, 2004 AND DECEMBER 31, 2003
(Amounts in millions)
2004 2003
================================================================================ ========== ==========
LIABILITIES AND EQUITY
CURRENT LIABILITIES
Current maturities of long-term debt and capital lease liabilities $ 182 $ 23
Accounts payable 1,279 909
Accrued liabilities 965 978
Domestic and foreign income taxes 298 163
Trust preferred securities -- 453
---------- ----------
Total current liabilities 2,724 2,526
---------- ----------
LONG-TERM DEBT, net of current maturities and unamortized discount 3,788 3,993
---------- ----------
DEFERRED CREDITS AND OTHER LIABILITIES
Deferred and other domestic and foreign income taxes 1,111 1,001
Other 2,375 2,407
---------- ----------
3,486 3,408
---------- ----------
MINORITY INTEREST 341 312
---------- ----------
STOCKHOLDERS' EQUITY
Common stock, at par value 78 77
Additional paid-in capital 4,437 4,272
Retained earnings 4,382 3,530
Accumulated other comprehensive income 109 50
---------- ----------
9,006 7,929
---------- ----------
$ 19,345 $ 18,168
================================================================================ ========== ==========
The accompanying notes are an integral part of these financial statements.
3
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 2004 AND 2003
(Amounts in millions, except per-share amounts)
Three Months Ended Six Months Ended
June 30 June 30
------------------------ ------------------------
2004 2003 2004 2003
=============================================================== ========== ========== ========== ==========
REVENUES
Net sales $ 2,750 $ 2,266 $ 5,330 $ 4,637
Interest, dividends and other income 19 17 41 51
Gains on disposition of assets, net -- 22 1 22
---------- ---------- ---------- ----------
2,769 2,305 5,372 4,710
---------- ---------- ---------- ----------
COSTS AND OTHER DEDUCTIONS
Cost of sales 1,467 1,264 2,873 2,562
Selling, general and administrative and other
operating expenses 239 250 465 437
Environmental remediation -- 13 -- 13
Exploration expense 40 29 94 57
Interest and debt expense, net 62 59 133 190
---------- ---------- ---------- ----------
1,808 1,615 3,565 3,259
---------- ---------- ---------- ----------
Income before taxes and other items 961 690 1,807 1,451
Provision for domestic and foreign income and other taxes 383 290 744 623
Minority interest 23 19 36 38
(Income) loss from equity investments (26) 7 (41) 23
---------- ---------- ---------- ----------
Income from continuing operations 581 374 1,068 767
Cumulative effect of changes in accounting principles, net -- -- -- (68)
---------- ---------- ---------- ----------
NET INCOME $ 581 $ 374 $ 1,068 $ 699
========== ========== ========== ==========
BASIC EARNINGS PER COMMON SHARE
Income from continuing operations $ 1.48 $ 0.98 $ 2.72 $ 2.02
Cumulative effect of changes in accounting principles, net -- -- -- (0.18)
---------- ---------- ---------- ----------
Basic earnings per common share $ 1.48 $ 0.98 $ 2.72 $ 1.84
========== ========== ========== ==========
DILUTED EARNINGS PER COMMON SHARE
Income from continuing operations $ 1.46 $ 0.97 $ 2.68 $ 1.99
Cumulative effect of changes in accounting principles, net -- -- -- (0.18)
---------- ---------- ---------- ----------
Diluted earnings per common share $ 1.46 $ 0.97 $ 2.68 $ 1.81
========== ========== ========== ==========
DIVIDENDS PER COMMON SHARE $ 0.275 $ 0.260 $ 0.550 $ 0.520
========== ========== ========== ==========
BASIC SHARES 393.9 382.6 392.8 380.9
========== ========== ========== ==========
DILUTED SHARES 398.9 386.7 398.0 384.9
=============================================================== ========== ========== ========== ==========
The accompanying notes are an integral part of these financial statements.
4
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 2004 AND 2003
(Amounts in millions)
2004 2003
================================================================================ ========== ==========
CASH FLOW FROM OPERATING ACTIVITIES
Income from continuing operations $ 1,068 $ 767
Adjustments to reconcile income to net cash provided by operating activities:
Depreciation, depletion and amortization of assets 650 571
Deferred income tax provision 77 50
Other noncash charges to income 176 112
Gains on disposition of assets, net (1) (22)
(Income)/loss from equity investments (41) 23
Dry hole and impairment expense 69 30
Changes in operating assets and liabilities (464) 36
Other operating, net (77) (101)
---------- ----------
Net cash provided by operating activities 1,457 1,466
---------- ----------
CASH FLOW FROM INVESTING ACTIVITIES
Capital expenditures (804) (791)
Purchase of businesses, net (177) (251)
Sales of businesses and disposal of property, plant and equipment, net 4 26
Equity investments and other investing, net (215) (110)
---------- ----------
Net cash used by investing activities (1,192) (1,126)
---------- ----------
CASH FLOW FROM FINANCING ACTIVITIES
Redemption (2004) / Repurchase (2003) of trust preferred securities (466) (1)
Proceeds from long-term debt -- 298
Payments of long-term debt and capital lease liabilities -- (587)
Proceeds from issuance of common stock 3 7
Cash dividends paid (208) (193)
Stock options exercised 110 106
Other (4) (1)
---------- ----------
Net cash used by financing activities (565) (371)
---------- ----------
Decrease in cash and cash equivalents (300) (31)
Cash and cash equivalents--beginning of period 683 146
---------- ----------
Cash and cash equivalents--end of period $ 383 $ 115
================================================================================ ========== ==========
The accompanying notes are an integral part of these financial statements.
5
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
June 30, 2004
1. General
In these unaudited consolidated condensed financial statements,
"Occidental" means Occidental Petroleum Corporation (OPC) and/or one or
more entities where it owns a majority voting interest (subsidiaries).
Certain information and disclosures normally included in notes to
consolidated financial statements have been condensed or omitted pursuant
to the Securities and Exchange Commission's rules and regulations, but
resultant disclosures are in accordance with accounting principles
generally accepted in the United States of America as they apply to interim
reporting. The consolidated condensed financial statements should be read
in conjunction with the consolidated financial statements and the notes
thereto in Occidental's Annual Report on Form 10-K for the year ended
December 31, 2003 (2003 Form 10-K).
In the opinion of Occidental's management, the accompanying consolidated
condensed financial statements contain all adjustments (consisting only of
normal recurring adjustments) necessary to fairly present Occidental's
consolidated financial position as of June 30, 2004, the consolidated
statements of operations for the three and six months then ended and the
statements of cash flows for the six months then ended. The income and cash
flows for the period ended June 30, 2004, are not necessarily indicative of
the income or cash flows to be expected for the full year.
Certain financial statements and notes for the prior year have been changed
to conform to the 2004 presentation.
Refer to Note 1 to the consolidated financial statements in the 2003 Form
10-K for a summary of significant accounting policies, including critical
accounting policies.
2. Asset Acquisitions and Other Transactions
In January 2004, Occidental acquired a 1,300-mile oil pipeline and
gathering system located in the Permian Basin for approximately $143
million in cash (including a $5 million deposit in 2003).
In January 2004, Occidental redeemed all of its outstanding 8.16 percent
Trust Preferred Redeemable Securities (trust preferred securities) at par
plus accrued interest which resulted in a decrease in current liabilities
of approximately $453 million. This resulted in an after-tax charge of $7
million.
In the second quarter of 2004, Occidental discontinued, for the present
time, the sale of an interest in its outstanding accounts receivable
balance which had the effect of increasing receivables by approximately
$360 million. There was no gain or loss associated with this transaction.
In April 2004, Occidental agreed with the government of Colombia to extend
the term of its contract for the Cano Limon field. The contract was
extended to the economic life of the field, which Occidental will continue
to operate.
3. Accounting Changes
In December 2003, the Financial Accounting Standards Board (FASB) revised
Interpretation No. (FIN) 46, "Consolidation of Variable Interest Entities"
to exempt certain entities from its requirements and to clarify certain
issues arising during the initial implementation of FIN 46. Occidental
adopted the revised FIN 46 in the first quarter of 2004 and it did not have
a material effect on its financial statements when adopted.
6
In June 2001, FASB issued Statement of Financial Accounting Standards
(SFAS) No. 142, "Goodwill and Other Intangible Assets", which states in
paragraph 8(b) that the accounting specified in SFAS No. 19, "Financial
Accounting and Reporting by Oil and Gas Producing Companies" is not
affected by SFAS No. 142. A question has arisen about whether the balance
sheet classification and disclosure requirements for oil and gas mineral
and drilling rights are included in this exception and, if they are not
included, whether these rights should be classified as intangible assets.
The FASB has issued a proposed FASB Staff Position (FSP), No. FAS 142-b,
"Application of FASB Statement No. 142, Goodwill and Other Intangible
Assets, to Oil and Gas Producing Entities", which states that the scope
exception does include the classification and disclosure of mineral and
drilling rights.
Historically, Occidental has classified all of its mineral and drilling
rights within property, plant and equipment and has generally not
identified these amounts separately. If FSP No. FAS 142-b is not approved
by the FASB and it determines that these mineral rights should be presented
as intangible assets, Occidental would have to reclassify its oil and gas
mineral and drilling rights to intangible assets and make additional
disclosures in accordance with SFAS No. 142. If Occidental adopted this
change for rights acquired after June 30, 2001, approximately $544 million
and $492 million, net of accumulated depreciation, depletion and
amortization (DD&A), of the property, plant and equipment balance would be
reclassified to intangible assets as at June 30, 2004 and December 31,
2003, respectively. Occidental currently amortizes these amounts under the
unit-of-production method and would continue to amortize the mineral rights
under this method. Occidental believes the change would have no material
effect on its results of operations.
See Note 12 for accounting changes relating to pension and postretirement
obligations.
4. Comprehensive Income
The following table presents Occidental's comprehensive income items (in
millions):
Periods Ended June 30
----------------------------------------------------
Three Months Six Months
------------------------ -------------------------
2004 2003 2004 2003
===========================================================================================================
Net income $ 581 $ 374 $ 1,068 $ 699
Other comprehensive income items
Foreign currency translation adjustments (3) 22 (10) 24
Derivative mark-to-market adjustments 3 7 1 (5)
Minimum pension liability adjustments -- (4) -- (4)
Unrealized gains (losses) on securities 39 (24) 68 (1)
---------- ---------- ---------- ----------
Other comprehensive income, net of tax 39 1 59 14
---------- ---------- ---------- ----------
Comprehensive income $ 620 $ 375 $ 1,127 $ 713
=================================================== ========== ========== ========== ==========
5. Supplemental Cash Flow Information
During the six months ended June 30, 2004 and 2003, net cash payments for
federal, foreign and state income taxes were approximately $404 million and
$152 million, respectively. Interest paid (net of interest capitalized of
$2 million and $3 million, respectively) totaled approximately $104 million
and $180 million (including a $61 million debt repayment fee) for the six
months ended June 30, 2004 and 2003, respectively.
7
6. Inventories
A portion of inventories is valued under the LIFO method. The valuation of
LIFO inventory for interim periods is based on Occidental's estimates of
year-end inventory levels and costs. Inventories consist of the following
(in millions):
Balance at June 30, 2004 December 31, 2003
========================= ==================== ====================
Raw materials $ 55 $ 46
Materials and supplies 154 143
Finished goods 262 342
---------- ----------
471 531
LIFO reserve (22) (21)
---------- ----------
Total $ 449 $ 510
========================= ========== ==========
7. Asset Retirement Obligations
In June 2001, the FASB issued SFAS No. 143, "Accounting for Asset
Retirement Obligations." SFAS No. 143 requires companies to recognize the
fair value of a liability for an asset retirement obligation in the period
in which the liability is incurred if there is a legal obligation to
dismantle the asset and reclaim or remediate the property at the end of its
useful life. When the liability is initially recorded, the company
capitalizes the cost into property, plant and equipment. Over time, the
liability is accreted and the cost is depreciated, both over the asset's
useful life. Occidental's asset retirement obligations primarily relate to
the cost of plugging and abandoning wells, well-site cleanup, facilities
abandonment and closure and post-closure care.
The following table summarizes the activity of the asset retirement
obligations of which $4 million is included in accrued liabilities in both
2004 and 2003 and the remaining balance in both years is included in
deferred credits and other liabilities - other (in millions):
Six Months Ended June 30 2004 2003
============================================================ ==================== ====================
Beginning balance $ 167 $ --
Cumulative effect of change in accounting principles -- 150
Liabilities incurred in the period 9 --
Liabilities settled in the period (5) (5)
Acquisitions and other 29 2
Accretion expense 6 5
Revisions to estimated cash flows (2) 3
-------------------- --------------------
Ending balance $ 204 $ 155
============================================================ ==================== ====================
8. Environmental Liabilities and Expenditures
Occidental's operations in the United States are subject to stringent
federal, state and local laws and regulations relating to improving or
maintaining environmental quality. Foreign operations also are subject to
environmental-protection laws. The laws that require or address
environmental remediation may apply retroactively to past waste disposal
practices and releases. In many cases, the laws apply regardless of fault,
legality of the original activities, or current ownership or control of
sites. Pursuant to these laws, OPC or certain of its subsidiaries are
currently participating in environmental assessments and cleanups at
federal Superfund sites and other sites subject to the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), sites
subject to equivalent state laws, and other remediation sites, including
Occidental facilities and previously owned sites.
8
The following table presents Occidental's environmental remediation
reserves at June 30, 2004, which are included in accrued liabilities ($76
million) and deferred credits and other liabilities - other ($277 million).
The reserves are grouped by three categories of environmental remediation
sites as follows ($ amounts in millions):
# of Sites Reserve
============================== =============== ===============
CERCLA & Equivalent Sites 121 $ 229
Active Facilities 14 72
Closed or Sold Facilities 40 52
--------------- ---------------
Total 175 $ 353
============================== =============== ===============
In determining the environmental remediation reserves and reasonably
possible range of loss, Occidental refers to currently available
information, including relevant past experience, available technology,
regulations in effect, the timing of remediation and cost-sharing
arrangements. Occidental expects that it may continue to incur additional
liabilities beyond those recorded for environmental remediation at these
and other sites. The range of reasonably possible loss for existing
environmental remediation matters could be up to $400 million beyond the
amount accrued.
At June 30, 2004, OPC or certain of its subsidiaries have been named in
CERCLA or state equivalent proceedings, as shown below ($ amounts in
millions):
Description # of Sites Reserve
============================== =============== ===============
Minimal/No Exposure (a) 99 $ 5
Reserves between $1-10 MM 15 58
Reserves over $10 MM 7 166
--------------- ---------------
Total 121 $ 229
============================== =============== ===============
(a) Includes 27 sites for which Maxus Energy Corporation has retained the
liability and indemnified Occidental, 7 sites where Occidental has
denied liability without challenge, 54 sites where Occidental's
reserves are less than $50,000 each, and 11 sites where reserves are
between $50,000 and $1 million each.
Refer to Note 8 to the consolidated financial statements in the 2003 Form
10-K for additional information regarding Occidental's environmental
expenditures.
9. Lawsuits, Claims, Commitments, Contingencies and Related Matters
OPC and certain of its subsidiaries have been named in a substantial number
of lawsuits, claims and other legal proceedings. These actions seek, among
other things, compensation for alleged personal injury, breach of contract,
property damage, punitive damages, civil penalties or other losses; or
injunctive or declaratory relief. OPC and certain of its subsidiaries also
have been named in proceedings under CERCLA and similar federal, state and
local environmental laws. These environmental proceedings seek funding or
performance of remediation and, in some cases, compensation for alleged
property damage, punitive damages and civil penalties; however, Occidental
is usually one of many companies in these proceedings and has to date been
successful in sharing response costs with other financially sound
companies. With respect to all such lawsuits, claims and proceedings,
including environmental proceedings, Occidental accrues reserves when it
believes it is probable a liability has been incurred and the amount of
loss can be reasonably estimated.
During the course of its operations, Occidental is subject to audit by tax
authorities for varying periods in various federal, state, local and
foreign tax jurisdictions. Taxable years prior to 1997 are closed for U.S.
federal income tax purposes. Taxable years 1997 through 2002 are in various
stages of audit by the Internal Revenue Service. Disputes arise during the
course of such audits as to facts and matters of law.
9
Occidental has guarantees outstanding at June 30, 2004 which encompass
performance bonds, letters of credit, indemnities, commitments and other
forms of guarantees provided by Occidental to third parties, mainly to
provide assurance that Occidental and/or its subsidiaries and affiliates
will meet their various obligations (guarantees). At June 30, 2004, the
notional amount of these guarantees was approximately $400 million. Of this
amount, approximately $300 million relates to Occidental's guarantee of
equity investees' debt and other commitments. The remaining $100 million
relates to various indemnities and guarantees provided to third parties.
The amount of these guarantees recorded on the consolidated balance sheet
was immaterial.
It is impossible at this time to determine the ultimate liabilities that
OPC and its subsidiaries may incur resulting from any lawsuits, claims and
proceedings, audits, commitments, contingencies and related matters. If
these matters were to be ultimately resolved unfavorably at amounts
substantially exceeding Occidental's reserves, an outcome not currently
anticipated, it is possible that such outcome could have a material adverse
effect upon Occidental's consolidated financial position or results of
operations. However, after taking into account reserves, management does
not expect the ultimate resolution of any of these matters to have a
material adverse effect upon Occidental's consolidated financial position
or results of operations.
10. Income Taxes
The provision for taxes based on income for the 2004 and 2003 interim
periods was computed in accordance with Interpretation No. 18 of Accounting
Principles Board Opinion (APB) No. 28 on reporting taxes for interim
periods and was based on projections of total year pre-tax income.
The provision for income taxes for the first quarter of 2004 includes a $20
million credit from settlement of a tax issue. The second quarter of 2004
reflected a lower U.S. income tax rate resulting from the crediting of
foreign income taxes.
11. Stock-Based Compensation
Occidental accounts for its stock incentive plans (Plans) using the
intrinsic value method under APB No. 25 and related interpretations.
Occidental's policy is to recognize compensation expense over the vesting
period of the award. Had compensation expense for those Plans been
determined in accordance with SFAS No. 123, "Accounting for Stock Based
Compensation", Occidental's pro-forma net income and earnings per share
would have been as follows (in $ millions, except per share amounts):
Periods Ended June 30
-------------------------------------------------------
Three Months Six Months
------------------------- -------------------------
2004 2003 2004 2003
================================================== ========== ========== ========== ==========
Net income $ 581 $ 374 $ 1,068 $ 699
Add: Stock-based compensation included in net
income, net of tax, under APB No. 25 8 9 17 16
Deduct : Stock-based compensation, net of tax,
determined under SFAS No. 123 fair value
method (12) (14) (26) (25)
---------- ---------- ---------- ----------
Pro-forma net income $ 577 $ 369 $ 1,059 $ 690
================================================== ========== ========== ========== ==========
Earnings Per Share:
Basic - as reported $ 1.48 $ 0.98 $ 2.72 $ 1.84
Basic - pro forma 1.46 0.97 2.70 1.81
Diluted - as reported $ 1.46 $ 0.97 $ 2.68 $ 1.81
Diluted - pro forma 1.45 0.95 2.66 1.78
---------- ---------- ---------- ----------
10
12. Retirement Plans and Postretirement Benefits
Occidental has various defined contribution and defined benefit retirement
plans for its salaried, domestic union and nonunion hourly, and certain
foreign national employees.
The following tables set forth the components of the net periodic benefit
costs for Occidental's defined benefit pension and postretirement benefit
plans as of June 30 (in millions):
Three Months Ended June 30, 2004 2003
------------------------------ ----------------------------------- -----------------------------------
Pension Postretirement Pension Postretirement
Net Periodic Benefit Cost Benefit Benefit Benefit Benefit
============================== =============== =============== =============== ===============
Service cost $ 3 $ 2 $ 3 $ 2
Interest cost 6 8 6 9
Expected return on plan assets (5) -- (5) --
Recognized actuarial loss 1 3 1 1
--------------- --------------- --------------- ---------------
Total $ 5 $ 13 $ 5 $ 12
============================== =============== =============== =============== ===============
Six Months Ended June 30, 2004 2003
------------------------------ ----------------------------------- -----------------------------------
Pension Postretirement Pension Postretirement
Net Periodic Benefit Cost Benefit Benefit Benefit Benefit
============================== =============== =============== =============== ===============
Service cost $ 7 $ 4 $ 6 $ 4
Interest cost 12 16 12 17
Expected return on plan assets (10) -- (10) --
Recognized actuarial loss 2 5 2 4
--------------- --------------- --------------- ---------------
Total $ 11 $ 25 $ 10 $ 25
============================== =============== =============== =============== ===============
On December 8, 2003, President Bush signed into law a bill that expands
Medicare, primarily adding a prescription drug benefit for
Medicare-eligible retirees starting in 2006. Occidental intends to review
its retirees' health care plans in light of the new Medicare provisions,
which may change Occidental's obligations under the plan. At this time,
Occidental is unable to determine the impact of the new Medicare provisions
due to the lack of regulations for determining the actuarial equivalency of
its benefits compared to the new Medicare benefits. Therefore, the retiree
medical obligations and costs reported do not reflect the impact of this
legislation in accordance with FSP No. FAS 106-2. When the regulations are
clarified and Occidental is able to determine the impact of these
provisions, it will adopt the requirements of this standard.
Occidental funded approximately $3 million to its domestic defined benefit
pension plans for the six months ended June 30, 2004 and it expects to
contribute a total of $6.3 million during 2004. All of the contributions
are expected to be in the form of cash.
Refer to Note 13 to the consolidated financial statements in the 2003 Form
10-K for additional information regarding Occidental's retirement plans and
postretirement benefits.
11
13. Industry Segments
The following table presents Occidental's interim industry segment and
corporate disclosures (in millions):
Corporate
Oil and Gas Chemical and Other Total
======================================== =============== =============== =============== ===============
Six Months Ended June 30, 2004
Net sales $ 3,476 $ 1,794 $ 60 $ 5,330
=============== =============== =============== ===============
Pretax operating profit (loss) $ 1,904 $ 140 $ (232)(a) $ 1,812
Income taxes (340) (5) (399)(b) (744)
--------------- --------------- --------------- ---------------
Net income (loss) $ 1,564 $ 135 $ (631)(c) $ 1,068
======================================== =============== =============== =============== ===============
Six Months Ended June 30, 2003
Net sales $ 2,993 $ 1,575 $ 69 $ 4,637
=============== =============== =============== ===============
Pretax operating profit (loss) $ 1,637 $ 84 $ (331)(a) $ 1,390
Income taxes (273) (6) (344)(b) (623)
Cumulative effect of changes in
accounting principles, net -- -- (68) (68)
--------------- --------------- --------------- ---------------
Net income (loss) $ 1,364 $ 78 $ (743)(d) $ 699
======================================== =============== =============== =============== ===============
(a) Includes unallocated net interest expense, administration expense and other
items.
(b) Includes unallocated income taxes. The 2004 amount includes a $20 million
credit from a tax settlement.
(c) Includes a trust preferred securities redemption pre-tax charge of $11
million ($7 million net of tax).
(d) Includes a $61 million pre-tax interest charge ($40 million net of tax) to
repay a $450 million 6.4 percent senior note issue that had ten years of
remaining life, but was subject to remarketing on April 1, 2003.
12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
CONSOLIDATED RESULTS OF OPERATIONS
Occidental (as defined in Note 1 to the consolidated condensed financial
statements) reported net income for the first six months of 2004 of $1.1
billion, on net sales of $5.3 billion, compared with net income of $699 million,
on net sales of $4.6 billion, for the same period of 2003. Basic earnings per
common share were $2.72 for the first six months of 2004, compared with basic
earnings per share of $1.84 for the same period of 2003. Occidental reported net
income for the second quarter of 2004 of $581 million, on net sales of $2.8
billion, compared with net income of $374 million, on net sales of $2.3 billion,
for the same period of 2003. Basic earnings per common share were $1.48 for the
second quarter of 2004, compared with basic earnings per share of $0.98 for the
same period of 2003.
Net income for the first six months and the second quarter of 2004, compared
with the same periods in 2003, reflected higher crude oil prices and sales
volumes. Additionally, net income in both periods of 2004, compared with the
same periods in 2003, increased due to higher chemical prices and volumes,
partially offset by higher energy and raw material costs.
SELECTED INCOME STATEMENT ITEMS
The increase in net sales of $484 million and $693 million for the three and six
months ended June 30, 2004, compared with the same periods in 2003, primarily
reflected higher crude oil and chemical prices, higher oil production and higher
chemical sales volumes. For the three and six months ended June 30, 2003, the
gains (losses) on disposition of assets, net account included a pre-tax gain of
$22 million on the sale of the remaining interests in a subsidiary holding
assets in the Gulf of Mexico.
The increase in cost of sales of $203 million and $311 million for the three and
six months ended June 30, 2004, respectively, compared with the same periods in
2003, primarily reflected higher oil production, higher energy and raw material
costs and higher sales volumes. The increase of $28 million in selling, general
and administrative and other operating expenses for the six months ended June
30, 2004, compared to the same period in 2003, primarily reflected increases in
various oil and gas costs, including higher production-related taxes, and higher
operating costs. Additionally, for the three months ended June 30, 2003,
selling, general and administrative and other operating expenses included $16
million of severance costs for the chemical segment and a $9 million pre-tax
write-off for certain assets at a Niagara Falls plant. The increase in
exploration expense of $11 million and $37 million for the three and six months
ended June 30, 2004, respectively, compared with the same periods in 2003,
primarily reflected higher lease impairment charges. Interest and debt expense,
net, for the first six months of 2004 included a pre-tax charge of $11 million
for redemption of trust preferred securities. Interest and debt expense, net,
for the first six months of 2003 included a pre-tax debt repayment charge of $61
million. The provision for income taxes for the first six months of 2004
included a $20 million credit from settlement of a tax issue. The second quarter
of 2004 reflected a lower U.S. income tax rate resulting from the crediting of
foreign income taxes. The increase in income from equity investments of $33
million and $64 million for the three and six months ended June 30, 2004,
respectively, compared with the same periods in 2003, was primarily attributable
to improved results from the Lyondell equity investment and higher income from a
Russian oil and gas affiliate.
13
ANALYSIS OF FINANCIAL POSITION
The increase in receivables, net, of $841 million at June 30, 2004, compared
with December 31, 2003, was primarily due to the discontinuation, for the
present time, of the sale of an interest in Occidental's outstanding accounts
receivable balance totaling $360 million and higher receivable balances due to
higher sales prices. The increase in investments in unconsolidated entities of
$348 million at June 30, 2004, compared with December 31, 2003, was primarily
due to a $208 million advance to the Elk Hills Power LLC (EHP) equity investment
which EHP used to repay a portion of its debt and a fair value adjustment on the
Premcor Inc. available-for-sale investment which is recorded in other
comprehensive income (OCI).
The increase in accounts payable of $370 million at June 30, 2004, compared with
December 31, 2003, was primarily due to higher payable balances in the oil and
gas marketing and trading operations. In January 2004, Occidental redeemed all
of its outstanding 8.16 percent Trust Preferred Redeemable Securities (trust
preferred securities) which reduced trust preferred securities to zero.
SEGMENT OPERATIONS
The following table sets forth the sales and earnings of each operating segment
and unallocated corporate items (in millions):
Periods Ended June 30
-------------------------------------------------------
Three Months Six Months
------------------------- -------------------------
2004 2003 2004 2003
============================================================ ========== ========== ========== ==========
SEGMENT NET SALES
Oil and gas $ 1,783 $ 1,440 $ 3,476 $ 2,993
Chemical 937 785 1,794 1,575
Other 30 41 60 69
---------- ---------- ---------- ----------
NET SALES $ 2,750 $ 2,266 $ 5,330 $ 4,637
========== ========== ========== ==========
SEGMENT EARNINGS
Oil and gas $ 814 $ 637 $ 1,564 $ 1,364
Chemical 85 43 135 78
---------- ---------- ---------- ----------
899 680 1,699 1,442
UNALLOCATED CORPORATE ITEMS
Interest expense, net - debt and trust preferred
distributions (a) (60) (64) (128) (199)
Income taxes (b) (209) (167) (399) (345)
Other (49) (75) (104) (131)
---------- ---------- ---------- ----------
INCOME FROM CONTINUING OPERATIONS 581 374 1,068 767
Cumulative effect of changes in accounting
principles, net -- -- -- (68)
---------- ---------- ---------- ----------
NET INCOME $ 581 $ 374 $ 1,068 $ 699
============================================================ ========== ========== ========== ==========
(a) The six months 2004 amount includes an $11 million pre-tax interest charge
to redeem all the outstanding 8.16 percent trust preferred securities on
January 20, 2004. The six months 2003 amount includes a $61 million pre-tax
interest charge to repay a $450 million 6.4 percent senior notes issue that
had ten years of remaining life, but was subject to remarketing on April 1,
2003.
(b) The six months 2004 amount includes a $20 million credit related to a first
quarter settlement of an issue with the Internal Revenue Service. The
second quarter of 2004 amount reflected a lower U.S. income tax rate
resulting from the crediting of foreign income taxes.
14
SIGNIFICANT ITEMS AFFECTING EARNINGS
Occidental's results of operations often include the effects of significant
transactions and events affecting earnings that vary widely and unpredictably in
nature, timing and amount. Therefore, management uses a measure called "core
earnings", which excludes those items. This non-GAAP measure is not meant to
disassociate those items from management's performance, but rather is meant to
provide useful information to investors interested in comparing Occidental's
earnings performance between periods. Reported earnings are considered
representative of management's performance over the long term. Core earnings is
not considered to be an alternative to operating income in accordance with
generally accepted accounting principles.
The following table sets forth the core earnings and significant items affecting
earnings for each operating segment and corporate for the three months ended
June 30, 2004 and 2003:
Three Months Ended June 30
-------------------------------------------------------
(in millions, except per-share amounts) 2004 EPS 2003 EPS
================================================== ========== ========== ========== ==========
TOTAL REPORTED EARNINGS $ 581 $ 1.48 $ 374 $ 0.98
========== ========== ========== ==========
OIL AND GAS
- -----------
Segment Earnings 814 637
No significant items affecting earnings -- --
---------- ----------
Segment Core Earnings 814 637
---------- ----------
CHEMICAL
- --------
Segment Earnings 85 43
No significant items affecting earnings -- --
---------- ----------
Segment Core Earnings 85 43
---------- ----------
CORPORATE
- ---------
Results (318) (306)
---------- ----------
TOTAL CORE EARNINGS $ 581 $ 1.48 $ 374 $ 0.98
================================================== ========== ========== ========== ==========
15
The following table sets forth the core earnings and significant items affecting
earnings for each operating segment and corporate for the six months ended June
30, 2004 and 2003:
Six Months Ended June 30
-------------------------------------------------------
(in millions, except per-share amounts) 2004 EPS 2003 EPS
================================================== ========== ========== ========== ==========
TOTAL REPORTED EARNINGS $ 1,068 $ 2.72 $ 699 $ 1.84
========== ========== ========== ==========
OIL AND GAS
Segment Earnings 1,564 1,364
No significant items affecting earnings -- --
---------- ----------
Segment Core Earnings 1,564 1,364
---------- ----------
CHEMICAL
Segment Earnings 135 78
No significant items affecting earnings -- --
---------- ----------
Segment Core Earnings 135 78
---------- ----------
CORPORATE
Results (631) (743)
Less:
Trust preferred securities redemption charge (11) --
Settlement of tax issue 20 --
Debt repayment charge -- (61)
Tax effect of pre-tax adjustments 4 21
Changes in accounting principles, net* -- (68)
---------- ----------
TOTAL CORE EARNINGS $ 1,055 $ 2.69 $ 807 $ 2.12
================================================== ========== ========== ========== ==========
* This amount is shown after-tax
16
WORLDWIDE EFFECTIVE TAX RATE
The following table sets forth the calculation of the worldwide effective tax
rate for reported income and core earnings:
Periods Ended June 30
-------------------------------------------------------
Three Months Six Months
------------------------- -------------------------
(in millions) 2004 2003 2004 2003
======================================== ========== ========== ========== ==========
REPORTED INCOME
Oil and Gas $ 985 $ 757 $ 1,904 $ 1,637
Chemical 88 46 140 83
Corporate and other (109) (139) (232) (330)
---------- ---------- ---------- ----------
Pre-tax income 964 664 1,812 1,390
Income tax expense
Federal and State 213 175 404 354
Foreign (included in segments) (a) 170 115 340 269
---------- ---------- ---------- ----------
Total 383 290 744 623
---------- ---------- ---------- ----------
Income from continuing operations $ 581 $ 374 $ 1,068 $ 767
========== ========== ========== ==========
Worldwide effective tax rate 40% 44% 41% 45%
========== ========== ========== ==========
CORE INCOME
Oil and Gas $ 985 $ 757 $ 1,904 $ 1,637
Chemical 88 46 140 83
Corporate and other (109) (139) (221) (269)
---------- ---------- ---------- ----------
Pre-tax income 964 664 1,823 1,451
Income tax expense
Federal and State 213 175 428 375
Foreign (included in segments) (a) 170 115 340 269
---------- ---------- ---------- ----------
Total 383 290 768 644
---------- ---------- ---------- ----------
Income from continuing operations $ 581 $ 374 $ 1,055 $ 807
========== ========== ========== ==========
Worldwide effective tax rate 40% 44% 42% 44%
======================================== ========== ========== ========== ==========
(a) Revenues and income tax expense include taxes owed by Occidental but paid
by governmental entities on its behalf. Oil and gas pre-tax income includes
the following revenue amounts by period: second quarter 2004 - $116, second
quarter 2003 - $87, first six months 2004 - $232, first six months 2003 -
$191.
Occidental's second quarter 2004 worldwide effective tax rate was 40 percent.
The second quarter 2004 reflected a lower U.S. income tax rate resulting from
the crediting of foreign income taxes. Previously, foreign income taxes were
deducted in determining U.S. taxable income. An annual tax election permits a
taxpayer to claim a credit or deduction for foreign income taxes, whichever is
more beneficial. Occidental expects to continue its election to credit foreign
income taxes in future years.
17
OIL AND GAS SEGMENT
Periods Ended June 30
-------------------------------------------------------
Three Months Six Months
------------------------- -------------------------
Summary of Operating Statistics 2004 2003 2004 2003
================================================== ========== ========== ========== ==========
NET PRODUCTION PER DAY:
CRUDE OIL AND NATURAL GAS LIQUIDS (MBL)
United States 260 254 259 246
Latin America 86 54 82 54
Middle East 86 97 90 98
Other Eastern Hemisphere 8 10 8 10
NATURAL GAS (MMCF)
United States 513 541 520 535
Middle East 56 -- 33 --
Other Eastern Hemisphere 73 77 74 76
BARRELS OF OIL EQUIVALENT (MBOE)
Consolidated subsidiaries 547 518 544 510
Other interests 27 26 27 28
---------- ---------- ---------- ----------
Worldwide production 574 544 571 538
================================================== ========== ========== ========== ==========
AVERAGE SALES PRICE:
CRUDE OIL ($/BBL)
United States 35.44 26.89 34.02 29.15
Latin America 30.60 25.01 29.83 28.06
Middle East 34.51 25.16 32.18 27.80
Other Eastern Hemisphere 32.26 25.75 30.79 26.89
NATURAL GAS ($/MCF)
United States 4.90 5.46 4.95 4.89
Middle East 0.97 -- 0.97 --
Other Eastern Hemisphere 2.47 1.91 2.35 1.91
================================================== ========== ========== ========== ==========
Oil and gas segment and core earnings for the six months ended June 30, 2004
were $1.6 billion, compared with $1.4 billion for the same period of 2003. Oil
and gas segment and core earnings for the three months ended June 30, 2004 were
$814 million, compared with $637 million for the same period of 2003. The
increase in earnings for the three and six months ended June 30, 2004, compared
with the same periods in 2003, primarily reflected higher crude oil prices and
production partially offset by higher operating expenses and overall increased
DD&A rates.
The increase in net sales of $343 million and $483 million for the three and six
months ended June 30, 2004, compared with the same periods in 2003, primarily
reflected higher crude oil prices and higher crude oil production. Additionally,
for the three months ended June 30, 2004, U.S. natural gas prices were lower
than the comparable period of 2003.
The average West Texas Intermediate price in the second quarter of 2004 was
$38.32 per barrel and the New York Mercantile Exchange (NYMEX) natural gas price
for the second quarter of 2004 was $5.79 per million BTU's. A change of 10 cents
per million BTU's in NYMEX gas prices has a quarterly impact on oil and gas
segment earnings of $5 million while a $1.00 per barrel change in oil prices has
a quarterly impact of $35 million, in each case before the effect of income
taxes.
Average worldwide production costs for the first six months of 2004 were $6.79
per barrel of oil equivalent (BOE) compared to the average 2003 production cost
of $6.08 per BOE.
18
For the first six months of 2004, production volumes increased to 571,000 BOE
per day compared with 538,000 BOE per day for the same period in 2003. For the
second quarter of 2004, production volumes increased to 574,000 BOE per day
compared with 544,000 BOE per day for the same period in 2003. Occidental
expects third quarter 2004 oil and gas production to remain at approximately the
same level as the second quarter of 2004 and it expects exploration expense to
be about $45 million.
In July 2004, a tribunal of international arbitrators issued a decision awarding
value added tax refunds to Occidental's Block 15 operations that the Government
of Ecuador had withheld through December 31, 2003. The Government of Ecuador has
indicated that it will appeal the award.
OIL AND GAS RESERVES
A senior corporate officer of Occidental is responsible for the audit of its oil
and gas reserves data. In addition, a Corporate Reserves Review Committee (the
Reserves Committee) has been established, consisting of five senior corporate
officers, to monitor and review Occidental's oil and gas reserves. The Reserves
Committee reports to the Audit Committee of Occidental's Board of Directors
periodically throughout the year. Occidental has retained Ryder Scott Company,
L.P. (Ryder Scott), independent petroleum engineering consultants, to review its
oil and gas estimation processes.
Ryder Scott has compared Occidental's methods and procedures for estimating oil
and gas reserves to generally accepted industry standards and has reviewed
certain data, methods and procedures used in estimating reserves volumes, the
reserve and economic evaluations and reserves classifications. Ryder Scott then
reviewed the specific application of such methods and procedures for a selection
of oil and gas fields considered to be a valid representation of Occidental's
total reserves portfolio.
Based on this review, including the data, technical processes and
interpretations presented by Occidental, Ryder Scott has concluded that the
methodologies used by Occidental in preparing the relevant estimates generally
comply with current Securities and Exchange Commission (SEC) standards. Ryder
Scott has not been engaged to render an opinion as to the reserves volumes
presented by Occidental.
The Reserves Committee has retained Ryder Scott to advise on oil and gas
reserves matters and to conduct reviews of selected properties in 2004.
CHEMICAL SEGMENT
Periods Ended June 30
-------------------------------------------------------
Three Months Six Months
------------------------- -------------------------
Summary of Operating Statistics 2004 2003 2004 2003
============================================================ ========== ========== ========== ==========
MAJOR PRODUCT VOLUMES (Thousands of Tons, except PVC
Resins)
Chlorine (a) 740 664 1,446 1,350
Caustic Soda 819 719 1,551 1,356
Ethylene Dichloride 100 108 222 239
PVC Resins (millions of pounds) 1,090 872 2,161 1,935
MAJOR PRODUCT PRICE INDEX (BASE 1987 THROUGH 1990
AVERAGE PRICE = 1.0)
Chlorine 2.00 1.81 1.80 1.72
Caustic Soda 0.61 0.87 0.66 0.84
Ethylene Dichloride 1.51 1.17 1.40 1.21
PVC Resins (b) 1.06 0.97 1.00 0.92
============================================================ ========== ========== ========== ==========
(a) Product volumes include those manufactured and consumed internally.
(b) Product volumes produced at former PolyOne facilities, now part of
Occidental, are excluded from the product price indexes.
Chemical segment and core earnings for the six months ended June 30, 2004 were
$135 million, compared with $78 million for the same period of 2003. Chemical
segment and core earnings for the three months ended June 30, 2004 were $85
million, compared with $43 million for the same period of
19
2003. The increase in earnings for the three and six months ended June 30, 2004,
compared with the same periods in 2003, primarily reflected higher sales volumes
and prices for polyvinyl chloride resins (PVC), vinyl chloride monomer (VCM) and
chlorine, higher ethylene dichloride (EDC) prices and higher sales volumes for
caustic soda partially offset by lower prices for caustic soda and higher
ethylene and energy costs. The three and six months ended June 30, 2003 included
a $9 million asset write-down charge and a $15 million severance charge.
The increase in net sales of $152 million and $219 million for the three and six
months ended June 30, 2004, respectively, compared with the same periods in
2003, primarily reflected higher sales volumes and prices for PVC, VCM and
chlorine, higher EDC prices and higher sales volumes for caustic soda partially
offset by lower prices for caustic soda.
Occidental expects the upturn in the chemical markets to continue in the third
quarter 2004 which should lead to moderate margin improvement and higher
utilization rates.
CORPORATE AND OTHER
The six months ended June 30, 2004, unallocated corporate items - income taxes
account includes a $20 million credit related to a settlement of a tax issue.
Continuing tax audit discussions could result in additional settlements in 2004
or later.
LIQUIDITY AND CAPITAL RESOURCES
Occidental's net cash provided by operating activities was approximately $1.5
billion for both the first six months of 2004 and 2003. The 2004 amount includes
the effect of the discontinuation, for the present time, of the sale of an
interest in Occidental's outstanding accounts receivable balance which reduced
the 2004 operating cash flow by $360 million. This has the effect of offsetting
the higher income from continuing operations for the first six months of 2004
compared with the same period in 2003.
Occidental's net cash used by investing activities was $1.2 billion for the
first six months of 2004, compared with net cash used of $1.1 billion for the
same period of 2003. The 2004 amount includes a $208 million advance to the Elk
Hills Power LLC (EHP) equity investment which EHP used to repay a portion of its
debt. The 2004 amount also includes the purchase of the pipeline and gathering
system in the Permian Basin. The 2003 amount includes the purchase of Permian
assets, advances to equity investees, purchases of equity investee debt and an
additional stock purchase of a cost-method investee.
Capital expenditures for the first six months of 2004 were $804 million,
including $744 million for oil and gas. Capital expenditures for the first six
months of 2003 were $791 million, including $508 million for oil and gas and
$273 million for chemical. The 2003 chemical amount includes $180 million for
the purchase of a leased facility in La Porte, Texas and $44 million related to
the exercise of purchase options for certain leased assets.
Financing activities used net cash of $565 million in the first six months of
2004, compared with cash used of $371 million for the same period of 2003. The
2004 amount includes the total cash paid of $466 million to redeem the trust
preferred securities in January 2004. The 2003 amount includes net debt payments
of approximately $289 million.
Available but unused lines of committed bank credit totaled approximately $1.5
billion at June 30, 2004. In June 2004, Occidental entered into a five-year $1.5
billion committed revolving bank facility that replaced its previous five-year
and 364-day revolving credit facilities, which collectively totaled $1.5
billion. Although its income and cash flows are largely dependent on oil and gas
prices and production, Occidental believes that cash on hand and cash generated
from operations will be sufficient to fund its operating needs, capital
expenditure requirements and dividend payments. If needed, Occidental could
access its existing credit facilities.
20
In July 2004, Dolphin Energy Limited ("Dolphin Energy"), the operator of the
Dolphin Project, entered into a facility agreement with banks to provide a $1.36
billion bridge loan for the Dolphin Project. The loan has a term of five years
and is a revolver for the first two years. Occidental guaranteed 24.5-percent of
the obligations of Dolphin Energy under the facility agreement. In addition, the
subsidiary of Occidental which is an upstream participant in the Dolphin Project
entered into an on-loan agreement with Dolphin Energy to borrow up to $245
million from the proceeds of loans under the facility agreement for its share of
upstream costs.
ENVIRONMENTAL LIABILITIES AND EXPENDITURES
Occidental's operations in the United States are subject to stringent federal,
state and local laws and regulations relating to improving or maintaining
environmental quality. Foreign operations also are subject to
environmental-protection laws. The laws that require or address environmental
remediation may apply retroactively to past waste disposal practices and
releases. In many cases, the laws apply regardless of fault, legality of the
original activities, or current ownership or control of sites. Pursuant to these
laws, Occidental Petroleum Corporation (OPC) or certain of its subsidiaries are
currently participating in environmental assessments and cleanups at federal
Superfund sites and other sites subject to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), sites subject to equivalent
state laws, and other remediation sites, including Occidental facilities and
previously owned sites.
The following table presents Occidental's environmental remediation reserves at
June 30, 2004, grouped by three categories of environmental remediation sites ($
amounts in millions):
# of Sites Reserve
=================================== =============== ===============
CERCLA & Equivalent Sites 121 $ 229
Active Facilities 14 72
Closed or Sold Facilities 40 52
--------------- ---------------
Total 175 $ 353
=================================== =============== ===============
In determining the environmental remediation reserves and reasonably possible
range of loss, Occidental refers to currently available information, including
relevant past experience, available technology, regulations in effect, the
timing of remediation and cost-sharing arrangements. Occidental expects that it
may continue to incur additional liabilities beyond those recorded for
environmental remediation at these and other sites. The range of reasonably
possible loss for existing environmental remediation matters could be up to $400
million beyond the amount accrued.
At June 30, 2004, OPC or certain of its subsidiaries have been named in CERCLA
or state equivalent proceedings, as shown below ($ amounts in millions):
Description # of Sites Reserve
=================================== =============== ===============
Minimal/No Exposure (a) 99 $ 5
Reserves between $1-10 MM 15 58
Reserves over $10 MM 7 166
--------------- ---------------
Total 121 $ 229
=================================== =============== ===============
(a) Includes 27 sites for which Maxus Energy Corporation has retained the
liability and indemnified Occidental, 7 sites where Occidental has
denied liability without challenge, 54 sites where Occidental's
reserves are less than $50,000 each, and 11 sites where reserves are
between $50,000 and $1 million each.
Refer to the "Environmental Expenditures" section of Management's Discussion and
Analysis of Financial Condition and Results of Operations in the 2003 Form 10-K
for additional information regarding Occidental's environmental expenditures.
21
LAWSUITS, CLAIMS, COMMITMENTS, CONTINGENCIES AND RELATED MATTERS
OPC and certain of its subsidiaries have been named in a substantial number of
lawsuits, claims and other legal proceedings. These actions seek, among other
things, compensation for alleged personal injury, breach of contract, property
damage, punitive damages, civil penalties or other losses; or injunctive or
declaratory relief. OPC and certain of its subsidiaries also have been named in
proceedings under CERCLA and similar federal, state and local environmental
laws. These environmental proceedings seek funding or performance of remediation
and, in some cases, compensation for alleged property damage, punitive damages
and civil penalties; however, Occidental is usually one of many companies in
these proceedings and has to date been successful in sharing response costs with
other financially sound companies. With respect to all such lawsuits, claims and
proceedings, including environmental proceedings, Occidental accrues reserves
when it believes it is probable a liability has been incurred and the amount of
loss can be reasonably estimated.
During the course of its operations, Occidental is subject to audit by tax
authorities for varying periods in various federal, state, local and foreign tax
jurisdictions. Taxable years prior to 1997 are closed for U.S. federal income
tax purposes. Taxable years 1997 through 2002 are in various stages of audit by
the Internal Revenue Service. Disputes arise during the course of such audits as
to facts and matters of law.
Occidental has guarantees outstanding at June 30, 2004 which encompass
performance bonds, letters of credit, indemnities, commitments and other forms
of guarantees provided by Occidental to third parties, mainly to provide
assurance that Occidental and/or its subsidiaries and affiliates will meet their
various obligations (guarantees). At June 30, 2004, the notional amount of these
guarantees was approximately $400 million. Of this amount, approximately $300
million relates to Occidental's guarantee of equity investees' debt and other
commitments. The remaining $100 million relates to various indemnities and
guarantees provided to third parties. The amount of these guarantees recorded on
the consolidated balance sheet was immaterial.
It is impossible at this time to determine the ultimate liabilities that OPC and
its subsidiaries may incur resulting from any lawsuits, claims and proceedings,
audits, commitments, contingencies and related matters. If these matters were to
be ultimately resolved unfavorably at amounts substantially exceeding
Occidental's reserves, an outcome not currently anticipated, it is possible that
such outcome could have a material adverse effect upon Occidental's consolidated
financial position or results of operations. However, after taking into account
reserves, management does not expect the ultimate resolution of any of these
matters to have a material adverse effect upon Occidental's consolidated
financial position or results of operations.
ACCOUNTING CHANGES
In December 2003, the FASB revised FIN 46, "Consolidation of Variable Interest
Entities" to exempt certain entities from its requirements and to clarify
certain issues arising during the initial implementation of FIN 46. Occidental
adopted the revised FIN 46 in the first quarter of 2004 and it did not have a
material effect on its financial statements when adopted.
In June 2001, FASB issued Statement of Financial Accounting Standards (SFAS) No.
142, "Goodwill and Other Intangible Assets", which states in paragraph 8(b) that
the accounting specified in SFAS No. 19, "Financial Accounting and Reporting by
Oil and Gas Producing Companies" is not affected by SFAS No. 142. A question has
arisen about whether the balance sheet classification and disclosure
requirements for oil and gas mineral and drilling rights are included in this
exception and, if they are not included, whether these rights should be
classified as intangible assets. The FASB has issued a proposed FASB Staff
Position (FSP), No. FAS 142-b, "Application of FASB Statement No. 142, Goodwill
and Other Intangible Assets, to Oil and Gas Producing Entities", which states
that the scope exception does include the classification and disclosure of
mineral and drilling rights.
Historically, Occidental has classified all of its mineral and drilling rights
within property, plant and equipment and has generally not identified these
amounts separately. If this proposed FSP is not
22
approved by the FASB and it determines that these mineral rights should be
presented as intangible assets, Occidental would have to reclassify its oil and
gas mineral and drilling rights to intangible assets and make additional
disclosures in accordance with SFAS No. 142. If Occidental adopted this change
for rights acquired after June 30, 2001, approximately $544 million and $492
million, net of accumulated DD&A, of the property, plant and equipment balance
would be reclassified to intangible assets as at June 30, 2004 and December 31,
2003, respectively. Occidental currently amortizes these amounts under the
unit-of-production method and would continue to amortize the mineral rights
under this method. Occidental believes the change would have no material effect
on its results of operations.
SAFE HARBOR STATEMENT REGARDING OUTLOOK AND FORWARD-LOOKING INFORMATION
Portions of this report contain forward-looking statements and involve risks and
uncertainties that could significantly affect expected results of operations,
liquidity, cash flows and business prospects. Factors that could cause results
to differ materially include, but are not limited to: global commodity pricing
fluctuations; competitive pricing pressures; higher-than-expected costs,
including feedstocks; crude oil and natural gas prices; chemical prices;
potential liability for remedial actions under existing or future environmental
regulations and litigation; potential liability resulting from pending or future
litigation; general domestic and international political conditions; potential
disruption or interruption of Occidental's production or manufacturing
facilities due to accidents, political events or insurgent activity; potential
failure to achieve expected production from existing and future oil and gas
development projects; the supply/demand considerations for Occidental's
products; any general economic recession or slowdown domestically or
internationally; regulatory uncertainties; and not successfully completing, or
any material delay of, any development of new fields, expansion, capital
expenditure, efficiency-improvement project, acquisition or disposition.
Forward-looking statements are generally accompanied by words such as
"estimate", "project", "predict", "will", "anticipate", "plan", "intend",
"believe", "expect" or similar expressions that convey the uncertainty of future
events or outcomes. Occidental expressly disclaims any obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information or otherwise. In light of these risks, uncertainties and
assumptions, the forward-looking events discussed might not occur.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
For the period ended June 30, 2004, there were no material changes in the
information required to be provided under Item 305 of Regulation S-X included
under the caption "Management's Discussion and Analysis of Financial Condition
and Results of Operations (Incorporating Item 7A) - Derivative Activities and
Market Risk" in Occidental's 2003 Annual Report on Form 10-K.
ITEM 4. CONTROLS AND PROCEDURES
Occidental's Chief Executive Officer and Chief Financial Officer supervised and
participated in Occidental's evaluation of its disclosure controls and
procedures as of the end of the period covered by this report. Disclosure
controls and procedures are controls and procedures designed to ensure that
information required to be disclosed in Occidental's periodic reports filed or
submitted under the Securities Exchange Act of 1934, as amended, is recorded,
processed, summarized and reported within the time periods specified in the
Securities and Exchange Commission's rules and forms. Based upon that
evaluation, Occidental's Chief Executive Officer and Chief Financial Officer
concluded that Occidental's disclosure controls and procedures are effective.
There has been no change in Occidental's internal control over financial
reporting during the period covered by this report that has materially affected,
or is reasonably likely to materially affect, Occidental's internal control over
financial reporting.
23
PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
GENERAL
This item incorporates by reference the information regarding legal proceedings
in Note 9 to the consolidated condensed financial statements in Part I of this
Form 10-Q.
On October 1, 2003, the Environmental Protection Agency (EPA) served OxyChem
with an administrative compliance order and an administrative complaint alleging
certain violations of environmental laws at OxyChem's Pottstown, Pennsylvania
facility. On July 14, 2004, the Regional Judicial Officer for EPA Region III
entered a Consent Agreement and Final Order (CAFO) between OxyChem and EPA.
Pursuant to the CAFO, OxyChem agreed to pay EPA and the U.S. Coast Guard a total
of $150,000 in penalties and to expend not less than $902,000 performing certain
supplemental environmental projects intended to reduce emissions from the
facility.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
Occidental's 2004 Annual Meeting of Stockholders (the Annual Meeting) was held
on April 30, 2004. The following actions were taken at the Annual Meeting, for
which proxies were solicited pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended:
1. The twelve nominees proposed by the Board of Directors were elected as
directors by the following votes:
NOMINEE VOTES FOR WITHHELD
------- --------- --------
Ronald W. Burkle 340,882,894 3,504,515
John S. Chalsty 340,543,591 3,843,818
Edward P. Djerejian 340,791,629 3,595,780
R. Chad Dreier 340,731,402 3,656,007
John E. Feick 340,723,298 3,664,111
Ray R. Irani 335,248,167 9,139,242
Dale R. Laurance 340,851,111 3,536,298
Irvin W. Maloney 340,198,440 4,188,969
Rodolfo Segovia 340,867,843 3,519,566
Aziz D. Syriani 336,779,572 7,607,837
Rosemary Tomich 340,390,871 3,996,538
Walter L. Weisman 340,707,414 3,679,995
2. A proposal to ratify the selection of KPMG as independent auditors was
approved. The proposal received: 341,112,007 votes for, 1,185,238
votes against, and 2,090,164 abstentions.
3. A proposal to amend the Restricted Stock Plan for Non-Employee
Directors to increase the number of shares available for issuance from
150,000 to 250,000 was approved. The proposal received 281,662,517
votes for, 18,814,311 votes against, 2,817,945 abstentions and
41,092,636 broker non-votes.
4. A stockholder proposal requesting discontinuance of options, rights
and severance payments was not approved. The proposal received
12,076,118 votes for, 287,607,549 votes against, 3,611,100 abstentions
and 41,092,642 broker non-votes.
24
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
4.1 Occidental Petroleum Corporation Five-Year Credit
Agreement, dated as of June 18, 2004, among Occidental,
JPMorgan Chase Bank and Citicorp USA, Inc., as
Co-Syndication Agents, BNP Paribas, Bank of America,
N.A., Barclays Bank PLC and The Royal Bank of Scotland
PLC as Co-Documentation Agents, The Bank of Nova
Scotia, as Administrative Agent, and the banks named
therein.
10.1 Employment Agreement Amendment, dated July 19, 2004
between Occidental and Dale R. Laurance.
10.2 Consulting Agreement entered into as of July 19, 2004,
between Occidental and Dale R. Laurance.
10.3 Terms and Conditions of Stock Appreciation Rights Award
under Occidental Petroleum Corporation 2001 Incentive
Compensation Plan.
10.4 Terms and Conditions of Restricted Share Unit Award
(without deferred issuance of shares) under Occidental
Petroleum Corporation 2001 Incentive Compensation Plan.
11 Statement regarding the computation of earnings per
share for the three and six months ended June 30, 2004
and 2003.
12 Statement regarding the computation of total enterprise
ratios of earnings to fixed charges for the six months
ended June 30, 2004 and 2003 and the five years ended
December 31, 2003.
23 Expert Consent.
31.1 Certification of CEO Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Certification of CFO Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 Certifications of CEO and CFO Pursuant to Section 906
of the Sarbanes-Oxley Act of 2002.
25
(b) Reports on Form 8-K
During the quarter ended June 30, 2004, Occidental filed the
following Current Reports on Form 8-K:
1. Current Report on Form 8-K dated April 23, 2004 (date of
earliest event reported), filed on April 23, 2004, for the
purpose of reporting, under Item 5, Occidental's results of
operations for the first quarter ended March 31, 2004, and
under Items 9 and 12, speeches and supplemental investor
information relating to Occidental's first quarter 2004
earnings announcement (which information under Items 9 and
12 shall not be deemed to be filed).
2. Current Report on Form 8-K dated April 30, 2004 (date of
earliest event reported), filed on April 30, 2004, for the
purpose of reporting, under Item 9, a presentation by Dr.
Ray R. Irani, CEO, at Occidental's 2004 Annual Meeting of
Stockholders (which information under Item 9 shall not be
deemed to be filed).
3. Current Report on Form 8-K dated June 16, 2004 (date of
earliest event reported), filed on June 16, 2004, for the
purpose of reporting, under Item 9, a presentation by Tom
Menges of Occidental Permian Ltd. (which information under
Item 9 shall not be deemed to be filed).
From June 30, 2004 to the date hereof, Occidental filed the
following Current Reports on Form 8-K:
1. Current Report on Form 8-K dated July 19, 2004 (date of
earliest event reported), filed on July 19, 2004, for the
purpose of reporting, under Item 5, Occidental's results of
operations for the second quarter ended June 30, 2004 and
certain senior management changes, and under Items 9 and 12,
a speech and supplemental investor information relating to
Occidental's second quarter 2004 earnings announcement
(which information under Items 9 and 12 shall not be deemed
to be filed).
26
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OCCIDENTAL PETROLEUM CORPORATION
DATE: August 2, 2004 S. P. Dominick, Jr.
--------------------------------------------------
S. P. Dominick, Jr., Vice President and Controller
(Chief Accounting and Duly Authorized Officer)
27
EXHIBIT INDEX
EXHIBITS
- --------
4.1 Occidental Petroleum Corporation Five-Year Credit Agreement, dated as
of June 18, 2004, among Occidental, JPMorgan Chase Bank and Citicorp
USA, Inc., as Co-Syndication Agents, BNP Paribas, Bank of America,
N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC as
Co-Documentation Agents, The Bank of Nova Scotia, as Administrative
Agent, and the banks named therein.
10.1 Employment Agreement Amendment, dated July 19, 2004 between Occidental
and Dale R. Laurance.
10.2 Consulting Agreement entered into as of July 19, 2004, between
Occidental and Dale R. Laurance.
10.3 Terms and Conditions of Stock Appreciation Rights Award under
Occidental Petroleum Corporation 2001 Incentive Compensation Plan.
10.4 Terms and Conditions of Restricted Share Unit Award (without deferred
issuance of shares) under Occidental Petroleum Corporation 2001
Incentive Compensation Plan.
11 Statement regarding the computation of earnings per share for the
three and six months ended June 30, 2004 and 2003.
12 Statement regarding the computation of total enterprise ratios of
earnings to fixed charges for the six months ended June 30, 2004 and
2003 and the five years ended December 31, 2003.
23 Expert Consent.
31.1 Certification of CEO Pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002.
31.2 Certification of CFO Pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002.
32.1 Certifications of CEO and CFO Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
EXHIBIT 4.1
CONFORMED COPY
================================================================================
OCCIDENTAL PETROLEUM CORPORATION
FIVE-YEAR CREDIT AGREEMENT
Dated as of June 18, 2004
$1,500,000,000
-------------------------
J.P. MORGAN SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.,
as Co-Arrangers and Joint Bookrunners,
JPMORGAN CHASE BANK,
CITICORP USA, INC.,
as Co-Syndication Agents,
BNP PARIBAS
BANK OF AMERICA, N.A.
BARCLAYS BANK PLC
THE ROYAL BANK OF SCOTLAND PLC
as Co-Documentation Agents,
and
THE BANK OF NOVA SCOTIA,
as Administrative Agent
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions........................................................... 2
Accumulated Funding Deficiency................................................. 2
Addendum....................................................................... 2
Administrative Agent........................................................... 2
Administrative Questionnaire................................................... 2
Affected Bank.................................................................. 2
Agents......................................................................... 2
Agreement...................................................................... 2
Allocable Share................................................................ 2
Alternate Base Rate............................................................ 3
Alternate Base Rate Loan....................................................... 4
Applicable Facility Fee Percentage............................................. 4
Applicable Margin.............................................................. 5
Assenting Bank................................................................. 5
Assessment Rate................................................................ 5
Assignment and Acceptance...................................................... 6
Bank and Banks................................................................. 6
Bank Funding Default........................................................... 6
Base CD Rate................................................................... 6
Board.......................................................................... 6
Borrowing...................................................................... 6
Borrowing Date................................................................. 6
Business Day................................................................... 6
Calendar Quarter............................................................... 6
Capital Adequacy Change........................................................ 6
Capital Adequacy Rule.......................................................... 7
Capital Securities............................................................. 7
Certificate of Deposit Loan.................................................... 7
Certificate of Deposit Rate.................................................... 7
Code........................................................................... 8
Company........................................................................ 8
Competitive Bid................................................................ 8
Competitive Bid Banks.......................................................... 8
Competitive Bid Rate........................................................... 8
Competitive Bid Request........................................................ 8
Competitive Borrowing.......................................................... 8
Competitive Loan............................................................... 8
Competitive Notes and Competitive Note......................................... 8
Confidential Information....................................................... 8
Consolidated Adjusted Tangible Net Worth....................................... 8
Consolidated Debt.............................................................. 8
Consolidated Funded Debt....................................................... 9
Consolidated Short-Term Borrowings............................................. 9
Consolidated Subsidiary........................................................ 9
Co-Documentation Agents........................................................ 9
Dollar and the symbol $........................................................ 9
Domestic Loans and Domestic Loan............................................... 9
Domestic Loan and Domestic Loan................................................ 9
Effective Date................................................................. 9
Eligible Assignee.............................................................. 9
Employee Benefit Plan.......................................................... 9
ERISA.......................................................................... 9
Eurodollar Loan................................................................ 9
Eurodollar Rate................................................................ 10
Event of Default............................................................... 10
Excepted Subsidiary............................................................ 10
Existing Credit Agreement...................................................... 10
Facility Fee................................................................... 10
Fees........................................................................... 11
Fixed Rate Loan................................................................ 11
Funded Debt.................................................................... 11
Increased Cost Change.......................................................... 11
Indebtedness................................................................... 11
Indemnified Liabilities........................................................ 12
Indemnitees and Indemnitee..................................................... 12
Index Debt..................................................................... 12
Interest Payment Date.......................................................... 12
Interest Period................................................................ 13
Interest Rate.................................................................. 13
Issuing Bank................................................................... 13
Issuing Bank Fee............................................................... 13
LC Disbursement................................................................ 13
LC Exposure.................................................................... 13
LC Participation Fee........................................................... 14
Letter of Credit............................................................... 14
Lien........................................................................... 14
Loans and Loan................................................................. 14
Managing Agents................................................................ 14
Margin......................................................................... 14
Maturity Date.................................................................. 14
Moody's........................................................................ 14
Multiemployer Plan............................................................. 14
Note........................................................................... 14
Officers' Certificate.......................................................... 14
Participants and Participant................................................... 15
PBGC........................................................................... 15
Person......................................................................... 15
Plan........................................................................... 15
Plan Administrator............................................................. 15
Plan Sponsor................................................................... 15
Principal Subsidiaries......................................................... 15
Prohibited Transaction......................................................... 16
Proportional Share............................................................. 16
Reference Banks................................................................ 16
Reference Bank................................................................. 16
Refinancing Loan............................................................... 16
Register....................................................................... 16
Regulation D................................................................... 16
Regulation U................................................................... 16
Regulation X................................................................... 16
Related Person................................................................. 17
Replacement Lender............................................................. 17
Reportable Event............................................................... 17
Required Banks................................................................. 17
Revolving Credit Borrowing..................................................... 17
Revolving Credit Borrowing Request............................................. 17
Revolving Credit Commitment.................................................... 17
Revolving Credit Commitments................................................... 17
Revolving Credit Exposure...................................................... 17
Revolving Credit Loan.......................................................... 18
Revolving Credit Notes and Revolving Credit Note............................... 18
Short-Term Borrowing........................................................... 18
Specified Subsidiary........................................................... 18
S&P............................................................................ 18
Statutory Reserves............................................................. 18
Subsidiary..................................................................... 18
Syndication Agent.............................................................. 19
Tangible Net Worth............................................................. 19
Taxes.......................................................................... 19
Term Federal Funds Loan........................................................ 19
Term Federal Funds Rate........................................................ 19
Total Commitment............................................................... 19
Transferee..................................................................... 19
Unmatured Event of Default..................................................... 20
USA Patriot Act................................................................ 20
Utilization Fee................................................................ 20
Voting Securities.............................................................. 20
SECTION 1.02. Accounting Terms...................................................... 20
ARTICLE II
LOAN AND LETTER OF CREDIT PROVISIONS
SECTION 2.01. Revolving Credit Commitments; Procedure for Requests.................. 20
SECTION 2.02. Competitive Loans; Procedure for Requests............................. 21
SECTION 2.03. Letters of Credit..................................................... 24
SECTION 2.04. General Terms Relating to the Loans................................... 29
SECTION 2.05. Notes................................................................. 30
SECTION 2.06. Refinancings.......................................................... 31
SECTION 2.07. Fees.................................................................. 31
SECTION 2.08. Reserve Requirements; Change in Circumstances......................... 33
SECTION 2.09. Pro Rata Treatment.................................................... 39
SECTION 2.10. Payments.............................................................. 39
SECTION 2.11. Payments on Business Days............................................. 39
SECTION 2.12. Net Payments.......................................................... 39
SECTION 2.13. Failed and Credit-Impaired Banks...................................... 43
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. Interest on Loans..................................................... 45
SECTION 3.02. Interest on Overdue Amounts........................................... 46
SECTION 3.03. Inability to Determine Certificate of Deposit Rate, Term Federal
Funds Rate or Eurodollar Rate...................................... 47
SECTION 3.04. Indemnity............................................................. 49
SECTION 3.05. Rate Determination Conclusive......................................... 49
ARTICLE IV
REDUCTION OR TERMINATION OF THE
SECTION 4.01. Reduction or Termination of the Total Commitment...................... 50
SECTION 4.02. Prepayments........................................................... 50
SECTION 4.03. Required Termination of the Revolving Credit Commitments and
Prepayment......................................................... 51
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Company......................... 54
(a) Company's Organization; Corporate Power............................... 54
(b) Domestic Specified Subsidiaries; Organization; Corporate Power........ 54
(c) Company's Corporate Authority; No Conflict............................ 54
(d) Valid and Binding Obligations of the Company.......................... 55
(e) Company's Financial Condition......................................... 55
(f) Litigation with Respect to the Company or Its Subsidiaries............ 55
(g) Regulatory Approvals with Respect to This Agreement................... 56
(h) ERISA................................................................. 56
(i) Investment Company Act................................................ 56
(j) Public Utility Holding Company Act.................................... 56
(k) Regulation U; Regulation X............................................ 56
(l) Company's Tax Returns and Tax Liability............................... 57
(m) Environmental and Public and Employee Health and Safety Matters....... 57
(n) True and Complete Disclosure.......................................... 58
ARTICLE VI
COVENANTS
SECTION 6.01. Affirmative Covenants of the Company.................................. 58
(a) Reports, Certificates and Other Information........................... 58
(i) Interim Reports................................................ 58
(ii) Annual Reports................................................. 59
(iii) Officers' Certificates......................................... 59
(iv) Accountants' Certificates...................................... 59
(v) Reports to SEC and to Stockholders............................. 60
(vi) Officers' Certificates as to Status of Excepted Subsidiaries... 60
(vii) Officers' Certificates as to Status of Principal Subsidiaries.. 60
(viii) Notice of Default.............................................. 60
(viii) USA Patriot Act................................................ 60
(ix) Other Information.............................................. 61
(b) Taxes................................................................. 61
(c) Preservation of Corporate Existence, etc.............................. 61
(d) Inspections; Discussions.............................................. 61
(e) Books and Records..................................................... 62
(f) Maintenance of Properties............................................. 62
(g) Maintenance of Insurance.............................................. 62
(h) Compliance with Laws, etc............................................. 62
(i) Delivery of Certain Documentation with Respect to Plans............... 62
(j) Contributions to Plans................................................ 63
(k) Use of Proceeds....................................................... 63
SECTION 6.02. Negative Covenants of the Company..................................... 63
(a) Mergers, Consolidations, Sales........................................ 63
(b) Restrictions on Liens................................................. 64
(c) Restrictions on Sale and Leaseback Transactions....................... 65
(d) Restriction on Consolidated Debt...................................... 65
(e) Restriction on Dividends from Principal Subsidiaries.................. 66
(f) Change in Control..................................................... 66
ARTICLE VII
CONDITIONS OF CREDIT
SECTION 7.01. Conditions to Effectiveness of Commitments............................ 66
SECTION 7.02. Conditions Precedent to All Extensions of Credit...................... 68
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default..................................................... 69
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS, THE BANKS AND THE ISSUING BANK
SECTION 9.01. Appointment and Powers of the Administrative Agent and the
Syndication Agents................................................. 71
SECTION 9.02. Exculpatory Provisions................................................ 72
SECTION 9.03. Reliance by the Administrative Agent and the Syndication Agents....... 72
SECTION 9.04. Notice of Default..................................................... 72
SECTION 9.05. Indemnification....................................................... 73
SECTION 9.06. Nonreliance on the Agents, the Managing Agents and Other Banks........ 73
SECTION 9.07. The Agents and the Managing Agents in Their Individual
Capacities......................................................... 74
SECTION 9.08. Excess Payments....................................................... 74
SECTION 9.09. Obligations Several................................................... 74
SECTION 9.10. Resignation by any Agent or Managing Agent............................ 75
SECTION 9.11. Titles................................................................ 75
ARTICLE X
MISCELLANEOUS
SECTION 10.01. No Waiver; Modifications in Writing.................................. 75
SECTION 10.02. Confidentiality...................................................... 76
SECTION 10.03. Notices, etc......................................................... 77
SECTION 10.04. Costs, Expenses and Taxes............................................ 77
SECTION 10.05. Confirmations........................................................ 78
SECTION 10.06. Successors and Assigns; Participations............................... 79
SECTION 10.07. Indemnification...................................................... 83
SECTION 10.08. Reference Banks...................................................... 84
SECTION 10.09. USA Patriot Act...................................................... 84
SECTION 10.10. Headings............................................................. 85
SECTION 10.11. Circumstances Requiring Consultation................................. 85
SECTION 10.12. Execution in Counterparts............................................ 85
SECTION 10.13. GOVERNING LAW........................................................ 85
SECTION 10.14. CONSENT TO JURISDICTION AND SERVICE OF PROCESS;
WAIVER OF JURY TRIAL.............................................. 86
SECTION 10.15. Severability of Provisions........................................... 86
SECTION 10.16. Waiver of Certain Provisions Under the Existing Credit
Agreements........................................................ 86
SECTION 10.17. Procedures Relating to Addendum...................................... 87
SECTION 10.18. Maximum Interest..................................................... 87
SECTION 10.19. Special Termination Provision........................................ 87
SCHEDULES
I Revolving Credit Commitments
II Addresses, Telecopier and Telephone Numbers
EXHIBITS
A-1 Form of Competitive Note
A-2 Form of Revolving Credit Note
B Form of Competitive Bid Request
C Form of Notice of Competitive Bid Request
D Form of Competitive Bid
E Form of Revolving Credit Borrowing Request
F Form of Section 7.01(c) Certificate
G Form of Assignment and Acceptance
H Form of Opinion of Robert E. Sawyer, Esq., Counsel to the Company
I Form of Opinion of Cravath, Swaine & Moore LLP, Special Counsel to the Agents
J Form of Addendum
K Form of Administrative Questionnaire
FIVE-YEAR CREDIT AGREEMENT
THIS AGREEMENT, dated as of June 18, 2004, is among
OCCIDENTAL PETROLEUM CORPORATION, a Delaware corporation (hereinafter
called the "Company"); the Banks (as defined below); JPMORGAN CHASE
BANK and CITICORP USA, INC., as co-syndication agents (hereinafter, in
such capacity, together with any successors thereto in such capacity,
the "Syndication Agents"); BNP PARIBAS, BANK OF AMERICA, N.A.,
BARCLAYS BANK PLC and THE ROYAL BANK OF SCOTLAND PLC, as
co-documentation agents (hereinafter, in such capacity, together with
any successor to either thereof in such capacity, the "Documentation
Agents"); THE BANK OF NOVA SCOTIA, as administrative agent
(hereinafter, in such capacity, together with any successor thereto in
such capacity, the "Administrative Agent"); and THE BANK OF NEW YORK,
BAYERISCHE LANDESBANK, CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS
CAYMAN ISLANDS BRANCH, MIZUHO CORPORATE BANK, LTD., MORGAN STANLEY
BANK, SOCIETE GENERALE, SUMITOMO MITSUI BANKING CORPORATION, UBS LOAN
FINANCE LLC and WACHOVIA BANK, NATIONAL ASSOCIATION as managing agents
(hereinafter, in such capacity, the "Managing Agents").
W I T N E S S E T H
WHEREAS the Company has requested the Banks to provide a
$1,500,000,000 committed credit facility for general corporate purposes,
pursuant to which the Company may borrow from the Banks pro rata on a revolving
credit basis from time to time on and after the Effective Date and prior to the
Maturity Date;
WHEREAS the Company has requested the Banks to make up to $200,000,000
of such committed credit facility available in the form of letters of credit
issued for the account of the Company;
WHEREAS the Company has also requested the Banks to provide an
uncommitted credit facility pursuant to which the Company may invite Banks from
time to time designated by it to bid on a competitive basis to make short-term
loans to the Company; and
WHEREAS the Banks are willing to provide such credit facilities to the
Company on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
2
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated below in this Section 1.01 (the meanings given to terms defined herein
being equally applicable to both the singular and plural forms of such terms);
provided that capitalized terms used in Sections 6.02(b) and 6.02(c) hereof and
defined in Schedule 1.01 hereto shall have the meanings indicated in such
Schedule 1.01:
"ACCUMULATED FUNDING DEFICIENCY" has the meaning assigned to that term
in Section 412 of the Code.
"ADDENDUM" means an instrument, substantially in the form of Exhibit J
hereto.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
substantially in the form of Exhibit K hereto, which each Bank shall complete
and provide to the Administrative Agent.
"AFFECTED BANK" means, respectively, (i) any Bank or Participant
affected by the events described in Section 2.08(a), Section 2.08(b), Section
2.08(f) or Section 2.12 hereof, (ii) any Bank affected by the events described
in Section 2.13 hereof, or (iii) any Bank affected by the events described in
Section 4.03(a) hereof, as the case may be, but only for any period during which
such Bank or Participant shall be affected by such events.
"AGENTS" means, collectively, the Syndication Agents, the
Administrative Agent and the Documentation Agents.
"AGREEMENT" means this Agreement, as the same may at any time be
amended or modified and in effect.
"ALLOCABLE SHARE" means, when used with reference to any Assenting
Bank at the time any determination thereof is to be made, (a) in the case of the
Revolving Credit Commitment and Revolving Credit Loans of an Affected Bank, a
fraction, the numerator of which shall be the Revolving Credit Commitment of
such Assenting Bank at such time and the denominator of which shall be the
aggregate of the Revolving Credit Commitments of all Assenting Banks at such
time, and (b) in the case of the Competitive Loans, if any, of an Affected Bank,
the outstanding principal amount thereof, divided among the Assenting Banks in
such proportion as the Company and such Assenting Banks shall agree.
3
"ALTERNATE BASE RATE" means for any day, a rate per annum equal to the
highest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% per annum, and (c) the Federal Funds Effective Rate
in effect for such day plus 1/2 of 1% per annum.
For purposes hereof, "Prime Rate" means the rate per annum announced
by the Administrative Agent from time to time as its base rate in effect at its
principal office in the City of New York; each change in the Prime Rate shall be
effective on the date such change is announced as effective.
For purposes hereof, "Base CD Rate" means the sum of (a) the product
of (i) the Average Weekly Three-Month Secondary CD Rate and (ii) Statutory
Reserves plus (b) the Assessment Rate; "Average Weekly Three-Month Secondary CD
Rate" means the secondary market rate ("Secondary CD Rate") for three-month
certificates of deposit (secondary market) of major United States money center
banks for the most recent weekly period ending Friday reported in the Federal
Reserve Statistical release entitled "Selected Interest Rates" (currently
publication H.15) or any successor publication released during the week for
which the Secondary CD Rate is being determined. The Secondary CD Rate so
reported shall be in effect, for the purpose of this definition, for each day of
the week in which the release date of such publication occurs. If such
publication or a substitute containing the foregoing rate information is not
published by the Board for any week, such average rate shall be determined by
the Administrative Agent on the first Business Day of the week succeeding such
week for which such rate information is not published on the basis of bids
quoted at approximately 11:00 a.m., New York City time, on such day to the
Administrative Agent by three New York City negotiable certificate of deposit
dealers of recognized standing for the sale of secondary market Dollar
certificates of deposit with remaining maturities of approximately three months
issued by the United States offices of major United States money center banks.
Any change in the Base CD Rate due to a change in the Average Weekly Three-Month
Secondary CD Rate shall be effective on the effective date of such change in the
Average Weekly Three-Month Secondary CD Rate.
For purposes hereof, "Federal Funds Effective Rate" means, for any
day, an interest rate per annum equal to the weighted average of the rates in
effect on such day for overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it.
For purposes hereof, any change in the Alternate Base Rate due to a
change in the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Base CD Rate or the
Federal Funds Effective Rate, as the case may be. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain either the Base
CD Rate or the Federal Funds Effective Rate, or both such
4
Interest Rates, for any reason, including, without limitation, the inability or
failure of the Administrative Agent to obtain sufficient bids or publications in
accordance with the terms hereof, the Alternate Base Rate shall be the higher of
the Prime Rate and such other rate, if any, referred to in the definition of
Alternate Base Rate that the Administrative Agent is able to ascertain until the
circumstances giving rise to such inability no longer exist.
"ALTERNATE BASE RATE LOAN" means any Loan with respect to which the
Interest Rate is based on the Alternate Base Rate.
"APPLICABLE FACILITY FEE PERCENTAGE" means, on any date, the
applicable percentage set forth below based upon the ratings applicable on such
date to Index Debt:
PERCENTAGE
----------
LEVEL 1
A- or better by S&P
A3 or better by Moody's .0800%
LEVEL 2
BBB+ by S&P
Baa1 by Moody's .1100%
LEVEL 3
BBB by S&P
Baa2 by Moody's .1250%
LEVEL 4
BBB- by S&P
Baa3 by Moody's .1500%
LEVEL 5
BB+ or below by S&P
Ba1 or below by Moody's .2000%
For purposes hereof, (i) if the ratings established (or deemed to have
been established, as provided in clause (ii) below) by Moody's and S&P shall
fall within different Levels, the rating in the inferior Level shall be
disregarded, unless one of the ratings is below Level 4, in which case the
Applicable Facility Fee Percentage will be based on the inferior of the two
Levels, (ii) if Moody's or S&P shall not have in effect a rating for Index Debt
(other than (a) because such rating agency shall no longer be in the business of
rating corporate debt obligations or (b) as a result of a change in the rating
system of Moody's or S&P), then such rating agency will be deemed to have
established a rating for Index Debt in Level 5 and (iii) if any rating
established (or deemed to have been established, as provided in clause (ii)
above) by Moody's or S&P shall be changed (other than as a result of a change in
the rating system of Moody's or S&P), such change shall be effective as of the
date on which it is first publicly announced by the applicable rating agency.
Each change in the Applicable Facility Fee Percentage shall apply during the
period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of
5
Moody's or S&P shall change, or if either such rating agency shall cease to be
in the business of rating corporate debt obligations, the Company and the Banks
(acting through the Syndication Agents) shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system or the non-availability of ratings from such rating agency.
"APPLICABLE MARGIN" means, on any date, with respect to any Eurodollar
Loan, Certificate of Deposit Loan, Term Federal Funds Loan or Alternate Base
Rate Loan, as the case may be, the applicable spread set forth below based upon
the ratings applicable on such date to Index Debt:
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
S&P A- or better BBB+ BBB BBB- BB+ or below
Moody's A3 or better Baa1 Baa2 Baa3 Ba1 or below
Eurodollar .2950% .3900% .5000% .6000% .8000%
Certificate of Deposit .4450% .5400% .6500% .7500% .9500%
Term Federal Funds .6950% .7900% .9000% 1.0000% 1.2000%
Alternate Base Rate 0 0 0 0 0
For purposes hereof, (i) if the ratings established (or deemed to have
been established, as provided in clause (ii) below) by Moody's and S&P shall
fall within different Levels, the rating in the inferior Level shall be
disregarded, unless one of the ratings is below Level 4, in which case the
Applicable Margin will be based on the inferior of the two Levels, (ii) if
Moody's or S&P shall not have in effect a rating for Index Debt (other than (a)
because such rating agency shall no longer be in the business of rating
corporate debt obligations or (b) as a result of a change in the rating system
of Moody's or S&P), then such rating agency will be deemed to have established a
rating for Index Debt in Level 5 and (iii) if any rating established (or deemed
to have been established, as provided in clause (ii) above) by Moody's or S&P
shall be changed (other than as a result of a change in the rating system of
Moody's or S&P), such change shall be effective as of the date on which it is
first publicly announced by the applicable rating agency. Each change in the
Applicable Margin shall apply during the period commencing on the effective date
of such change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Moody's or S&P shall change, or
if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Banks (acting through the
Syndication Agents) shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency.
"ASSENTING BANK" has the meaning assigned to that term in Section
2.08(e)(ii) hereof.
"ASSESSMENT RATE" means, for any date, the rate per annum (expressed
as a percentage and rounded, if necessary, to the nearest 1/10,000 of one
percent) which is equal to the arithmetic average (determined by the
Administrative Agent) of the then current net annual assessment rate that will
be employed in determining amounts payable
6
by JPMorgan Chase Bank and Citicorp USA, Inc. to the Federal Deposit Insurance
Corporation ("FDIC") (or any successor) for insurance by the FDIC (or such
successor) of time deposits made in Dollars or, in the event that the
Administrative Agent is unable to obtain such net annual assessment rates from
both JPMorgan Chase Bank and Citicorp USA, Inc., the rate per annum (expressed
as a percentage and rounded, if necessary, to the nearest 1/10,000 of one
percent) which is equal to such current net annual assessment rate of JPMorgan
Chase Bank or Citicorp USA, Inc., as the case may be.
"ASSIGNMENT AND ACCEPTANCE" means an instrument substantially in the
form of Exhibit G hereto.
"BANK" and "BANKS" mean, respectively, (i) each bank or financial
institution (other than the Issuing Bank in its capacity as such) which becomes
a party to this Agreement by signing on the signature pages hereto, by signing
an Addendum or pursuant to Section 10.06(c) hereof, and (ii) all such banks and
financial institutions.
"BANK FUNDING DEFAULT" means any failure by the Company to repay any
portion of a Loan which otherwise would have been repaid in accordance with the
second sentence of Section 2.06 hereof from proceeds of a new Loan or Loans,
which failure is attributable solely to the failure of any Bank to make
available all or any portion of the new Loan or Loans to be made by such Bank
pursuant to Section 2.06 hereof.
"BASE CD RATE" has the meaning assigned to that term in the definition
of the term Alternate Base Rate.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States.
"BORROWING" means a borrowing by the Company from the Banks (or any of
them) pursuant to this Agreement (including any such borrowing made as a result
of the operation of Section 2.06, Section 2.08(e)(ii), Section 2.08(e)(iii),
Section 2.12(c)(i), Section 2.13(i), Section 4.03(b)(ii), or Section
4.03(b)(iii) hereof, as the case may be).
"BORROWING DATE" means the date on which a Borrowing is, or is to be,
consummated, as the context may indicate.
"BUSINESS DAY" means any day not a Saturday, Sunday or legal holiday
in the State of New York or the State of California and on which (i) banks and
the Federal Reserve Bank of New York are open for business in New York City, and
(ii) banks are open for business in California; PROVIDED, HOWEVER, that when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in Dollar deposits in
the London Interbank Market.
"CALENDAR QUARTER" means a calendar quarter ending on the last day of
any March, June, September or December.
"CAPITAL ADEQUACY CHANGE" has the meaning assigned to that term in
Section 2.08(b) hereof.
7
"CAPITAL ADEQUACY RULE" has the meaning assigned to that term in
Section 2.08(b) hereof.
"CAPITAL SECURITIES" means, with respect to the Company, (i)
mandatorily redeemable capital trust securities of trusts which are Subsidiaries
and the subordinated debentures of the Company in which the proceeds of the
issuance of such capital trust securities are invested, which securities and
debentures have an initial final maturity of at least thirty years, have no
scheduled amortization prior to maturity and, in the case of the debentures,
allow for the deferral of interest payments for up to five years and have been
subordinated to all other indebtedness of the Company and (ii) other securities
whose basic structure and terms are similar to those described in (i) which
qualify as tier 1 capital under the capital adequacy rules and guidelines of the
U.S. Federal Reserve Board applicable to U.S. bank holding companies; PROVIDED,
HOWEVER, that in the case of (i) and (ii), such capital securities are accounted
for on the financial statements of the Company as a minority interest,
Company-Obligated Mandatorily Redeemable Trust Preferred Securities of
Subsidiary Trust Holding Solely Subordinated Notes of the Company, or similar
balance sheet designation not included in liabilities.
"CERTIFICATE OF DEPOSIT LOAN" means any Loan with respect to which the
Company shall have selected an Interest Rate based on the Certificate of Deposit
Rate in accordance with the provisions of Article II hereof.
"CERTIFICATE OF DEPOSIT RATE" means, for any Interest Period with
respect to any Certificate of Deposit Loan, an interest rate per annum
(expressed as a percentage and rounded, if necessary, to the nearest 1/10,000 of
one percent) equal to the sum of (a) the product of (i) the Fixed Certificate of
Deposit Rate in effect for such Interest Period and (ii) Statutory Reserves,
PLUS (b) the Assessment Rate.
For purposes hereof, "Fixed Certificate of Deposit Rate" means, for
any Interest Period with respect to any Certificate of Deposit Loan, the
arithmetic average (expressed as a percentage and rounded, if necessary, to the
nearest 1/10,000 of one percent) as determined (subject to Section 10.08 hereof)
by the Administrative Agent on the basis of quotations, if any, received by the
Administrative Agent from the Reference Banks of the arithmetic average
(expressed as a percentage and rounded, if necessary, to the nearest 1/10,000 of
one percent) of the prevailing rates per annum bid at or about 10:00 a.m., New
York City time, to the Reference Banks on the first Business Day of the Interest
Period applicable to such Certificate of Deposit Loan by three New York City
negotiable certificate of deposit dealers of recognized standing selected by
each such Reference Bank for the purchase at face value of negotiable primary
Dollar certificates of deposit of such Reference Bank in an amount approximately
equal to such Reference Bank's portion of the principal amount of the Revolving
Credit Borrowing of which such Certificate of Deposit Loan forms a part (or, in
the case of a Competitive Loan, a principal amount that would have been such
Reference Bank's portion of the Revolving Credit Borrowing had such Competitive
Borrowing been a Revolving Credit Borrowing) and with a maturity comparable to
such Interest Period.
8
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time and in effect.
"COMPANY" has the meaning assigned to that term in the introduction to
this Agreement.
"COMPETITIVE BID" means an offer by a Competitive Bid Bank to make a
Competitive Loan pursuant to Section 2.02 hereof.
"COMPETITIVE BID BANKS" means those Banks from time to time designated
by the Company, by written notice to the Administrative Agent, as Competitive
Bid Banks entitled to submit Competitive Bids pursuant to Section 2.02(c)
hereof.
"COMPETITIVE BID RATE" means, as to any Competitive Bid made by a Bank
pursuant to Section 2.02(c) hereof, (a) in the case of a Eurodollar Loan or a
Certificate of Deposit Loan, the Margin, and (b) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Bank making such Competitive
Bid.
"COMPETITIVE BID REQUEST" means a request made pursuant to Section
2.02(a) hereof substantially in the form of Exhibit B hereto.
"COMPETITIVE BORROWING" means, as the case may be, (a) a Borrowing
consisting of a Competitive Loan from a Competitive Bid Bank whose Competitive
Bid, accepted by the Company, is equal to the entire amount of such Borrowing,
or (b) a Borrowing consisting of concurrent Competitive Loans from each of the
Competitive Bid Banks whose Competitive Bid as a part of such Borrowing has been
accepted by the Company, in each case pursuant to the bidding procedure
described in Section 2.02 hereof.
"COMPETITIVE LOAN" means a Loan from a Competitive Bid Bank to the
Company pursuant to the bidding procedure described in Section 2.02 hereof.
"COMPETITIVE NOTES" and "COMPETITIVE NOTE" mean, respectively, (a) the
promissory notes of the Company substantially in the form of Exhibit A-1 hereto,
issued pursuant to and in accordance with this Agreement, as such promissory
notes may be amended or modified and in effect, and (b) a single such promissory
note.
"CONFIDENTIAL INFORMATION" has the meaning assigned to that term in
Section 10.02 hereof.
"CONSOLIDATED ADJUSTED TANGIBLE NET WORTH" means the total of the
Tangible Net Worth of the Company and its Specified Subsidiaries, determined on
a consolidated basis in accordance with generally accepted accounting
principles, after eliminating all inter-company items.
"CONSOLIDATED DEBT" means the sum of, without duplication (i)
Consolidated Funded Debt, including that portion of Consolidated Funded Debt
9
maturing within one year from the date of such determination, (ii) Consolidated
Short-Term Borrowings and (iii) obligations reflected for financial reporting
purposes as deferred credits for revenue from sales of future production of the
Company and its Specified Subsidiaries; PROVIDED, HOWEVER, that Consolidated
Debt shall in no event include any Capital Securities of the Company or any of
its Subsidiaries.
"CONSOLIDATED FUNDED DEBT" means the total of all Funded Debt of the
Company and its Specified Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, after eliminating all
inter-company items.
"CONSOLIDATED SHORT-TERM BORROWINGS" means the total of all Short-Term
Borrowings of the Company and its Specified Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting principles,
after eliminating all inter-company items.
"CONSOLIDATED SUBSIDIARY" means any Subsidiary of the Company included
in the financial statements of the Company and its Subsidiaries prepared on a
consolidated basis in accordance with generally accepted accounting principles.
"DOCUMENTATION AGENTS" has the meaning assigned to that term in the
introduction to this Agreement.
"DOLLARS" and the symbol "$" mean the lawful currency of the United
States of America.
"DOMESTIC LOANS" and "DOMESTIC LOAN" mean, respectively, (a) any Loans
during any period in which such Loans bear Interest Rates determined with
reference to the Alternate Base Rate, the Certificate of Deposit Rate or the
Term Federal Funds Rate, as the case may be, and (b) a single such Loan during
any such period.
"EFFECTIVE DATE" means the date upon which the conditions of Section
7.01 shall have been satisfied. The Effective Date is June 18, 2004.
"ELIGIBLE ASSIGNEE" means a commercial bank having total assets in
excess of $8,000,000,000 or any other financial institution mutually acceptable
to the Company and the Administrative Agent.
"EMPLOYEE BENEFIT PLAN" has the meaning assigned to the term "employee
benefit plan" in Section 3(3) of ERISA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and in effect.
"EURODOLLAR LOAN" means any Loan with respect to which the Company
shall have selected an Interest Rate based on the Eurodollar Rate in accordance
with the provisions of Article II hereof.
10
"EURODOLLAR RATE" means, for any Interest Period with respect to any
Eurodollar Loan, the rate per annum which is equal to the arithmetic average (as
determined by the Administrative Agent (subject to Section 10.08 hereof) on the
basis of quotations, if any, received by the Administrative Agent from the
Reference Banks, with such average expressed as a percentage and rounded, if
necessary, to the nearest 1/10,000 of one percent) of the average rate per annum
at which each Reference Bank is offered deposits in Dollars by prime banks in
the London Interbank Eurodollar market as of 11:00 a.m., London time, on the day
which is two (2) Business Days prior to the beginning of such Interest Period,
for settlement on the first day of such Interest Period and for the approximate
number of days comprised therein, in an amount comparable to the amount of such
Reference Bank's portion of the principal amount of the Revolving Credit
Borrowing of which such Eurodollar Loan forms a part (or, in the case of a
Competitive Loan, a principal amount that would have been such Reference Bank's
portion of the Revolving Credit Borrowing had such Competitive Borrowing been a
Revolving Credit Borrowing).
"EVENT OF DEFAULT" has the meaning assigned to that term in Section
8.01 hereof.
"EXCEPTED SUBSIDIARY" means (a) OXY Receivables Corporation, a
Delaware corporation, but only until such time, if any, as it has been withdrawn
from status as an Excepted Subsidiary by an Officers' Certificate hereinafter
referred to, effective as of the date of such Officers' Certificate, (b)
effective as of the date of the Officers' Certificate hereinafter referred to,
any Subsidiary of the Company which has been designated as an Excepted
Subsidiary after the Effective Date by an Officers' Certificate and has not been
withdrawn from status as an Excepted Subsidiary by a subsequent Officers'
Certificate effective as of the date of such subsequent Officers' Certificate;
PROVIDED that no Subsidiary of the Company may be designated as an Excepted
Subsidiary unless, immediately after giving effect to such designation, the
Company could become liable with respect to at least $1.00 of additional Funded
Debt in compliance with Section 6.02(d) hereof, and (c) every Subsidiary of one
or more Excepted Subsidiaries.
"EXISTING CREDIT AGREEMENTS" means (a) the 364-Day Credit Agreement
dated as of January 4, 2001, among the Company, the banks party thereto,
JPMorgan Chase Bank, as syndication agent, Bank of America, N.A., Bank One, N.A.
and BNP Paribas, as co-documentation agents, and The Bank of Nova Scotia, As
administrative agent, as amended or amended and restated to the date hereof, and
(b) the Five-Year Credit Agreement dated as of January 4, 2001, among the
Company, the banks party thereto, JPMorgan Chase Bank, as syndication agent,
Bank of America, N.A. and ABN AMRO Bank, N.V., as co-documentation agents, and
The Bank of Nova Scotia, as administrative agent, as amended or amended and
restated to the date hereof.
"FACILITY FEE" has the meaning assigned to that term in Section
2.07(a) hereof.
11
"FEES" means the Facility Fee, the LC Participation Fees, the Issuing
Bank Fees and the Utilization Fee.
"FIXED RATE LOAN" means any Competitive Loan made by a Bank pursuant
to Section 2.02 hereof based upon a fixed rate per annum offered by such Bank
(expressed as a percentage to 1/10,000 of one percent) and accepted by the
Company.
"FUNDED DEBT" means, with respect to any Person, all Indebtedness of
such Person (a) maturing one year or more from the date of the creation thereof,
(b) directly or indirectly renewable or extendible, at the option of the debtor,
by its terms or by the terms of any instrument or agreement relating thereto, to
a date one year or more from the date of the creation thereof, and (c) under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more, even though such Indebtedness may also
conform to the definition of Short-Term Borrowing.
"INCREASED COST CHANGE" has the meaning assigned to that term in
Section 2.08(a) hereof.
"INDEBTEDNESS" means, with respect to any Person, as of the date on
which Indebtedness is to be determined, (a) all items (except items of capital
stock or of surplus or of deferred credits and other liabilities combined with
deferred credits for financial reporting purposes or minority interests in
Subsidiaries of such Person) which in accordance with generally accepted
accounting principles applied in the preparation of the financial statements of
the Company and its Consolidated Subsidiaries would be included in determining
total liabilities as shown on the liability side of a balance sheet of such
Person, (b) all indebtedness secured by any mortgage on, or other security
interest in, any property or asset owned or held by such Person subject thereto,
whether or not the indebtedness secured thereby shall have been assumed by such
Person and (c) all indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), discounted with recourse, agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect of
which such Person has otherwise become directly or indirectly liable. For the
purpose of computing the Indebtedness of any Person, there shall be excluded any
particular Indebtedness which meets one or more of the following categories:
(i) Indebtedness with respect to which sufficient cash or cash
equivalents or securities shall have been deposited in trust to
provide for the full payment, redemption or satisfaction of the
principal of, premium, if any, and interest to accrue on, such
Indebtedness to the stated maturity thereof or to the date of
prepayment thereof, as the case may be, and as a result of such
deposit such particular Indebtedness, in accordance with generally
accepted accounting principles, shall no longer be required to be
reported on a balance sheet of such Person as a liability, and such
cash or cash equivalents or securities shall not be required to be
reported as an asset;
12
(ii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and (x) which arises from
any commitment of such Person relating to pipeline operations to pay
for property or services substantially without regard to the
non-delivery of such property or the non-furnishing of such services
or (y) which is Indebtedness of a partnership, joint venture or
similar entity less than a majority of the equity interest of which is
at the time owned by such Person or by such Person and one or more
Subsidiaries of such Person or, if such Person is a Subsidiary of the
Company, by such Person and either the Company or one or more other
Subsidiaries of the Company or by such Person and the Company and one
or more other Subsidiaries of the Company and which is payable solely
out of the property or assets owned or held by such partnership, joint
venture or similar entity or is secured by a mortgage on, or other
security interest in, the property or assets owned or held by such
partnership, joint venture or similar entity, in either case without
any further recourse to or liability of such Person; or
(iii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which is payable
solely out of certain property or assets of such Person, or is secured
by a mortgage on, or other security interest in, certain property or
assets owned or held by such Person, in either case without any
further recourse to or liability of such Person, to the extent such
Indebtedness exceeds (x) if such Person records such property or
assets on its books, the value for such property or assets recorded on
such books or (y) if such Person does not record such property or
assets on its books, (1) if such Indebtedness is a general obligation
of the entity which does record such property or assets on its books,
the net investment in or advances to such entity as recorded on the
books of such Person or (2) if such Indebtedness is payable solely out
of certain property or assets of such entity, the lesser of the value
for such property or assets recorded on the books of such entity or
the net investment in or advances to such entity as recorded on the
books of such Person, in each case determined in accordance with
generally accepted accounting principles.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that term in
Section 10.07 hereof.
"INDEMNITEES" and "INDEMNITEE" have the respective meanings assigned
to those terms in Section 10.07 hereof.
"INDEX DEBT" means senior, unsecured, non-credit-enhanced,
publicly-held, long-term indebtedness for borrowed money of the Company.
"INTEREST PAYMENT DATE" means (a) with respect to Alternate Base Rate
Loans, the last day of each Calendar Quarter, commencing with the first of such
dates to occur after the date of this Agreement, (b) with respect to any
Eurodollar Loan,
13
Certificate of Deposit Loan or Term Federal Funds Loan, the last day of the
Interest Period applicable thereto and, in the case of a Eurodollar Loan or a
Certificate of Deposit Loan with an Interest Period of 6 months or 180 days,
respectively, also the day that would have been the Interest Payment Date for
such Loan had an Interest Period of 3 months or 90 days, respectively, been
applicable to such Loan, and (c) in the case of a Fixed Rate Loan, the last day
of the Interest Period applicable thereto and in the case of a Fixed Rate Loan
with an Interest Period of more than 90 days, each day within such Interest
Period that would have been an Interest Payment Date had such Loan been a series
of consecutive Fixed Rate Loans with 90-day Interest Periods.
"INTEREST PERIOD" means (a) as to any Eurodollar Loan, the period
commencing on the Borrowing Date of such Loan and ending on the numerically
corresponding day (or if there is no such corresponding day, the last day) in
the calendar month that is 1, 2, 3 or 6 months later, as the Company may elect,
(b) as to any Certificate of Deposit Loan, the period commencing on the
Borrowing Date of such Loan and ending 30, 60, 90 or 180 days later, as the
Company may elect, (c) as to any Term Federal Funds Loan, the period commencing
on the Borrowing Date of such Loan and ending 7 days later, (d) as to any
Alternate Base Rate Loan, the period commencing on the Borrowing Date of such
Loan and ending 90 days later or, if earlier, on the date of prepayment of such
Loan, and (e) as to any Fixed Rate Loan, the period commencing on the Borrowing
Date of such Loan and ending on the date specified in the Competitive Bid
accepted by the Company with respect to such Fixed Rate Loan, which period shall
not be less than 8 days or more than 360 days; PROVIDED, HOWEVER, that (i) if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
with respect to Eurodollar Loans only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day, and (ii) no Interest Period may be selected
that ends later than the Maturity Date.
"INTEREST RATE" means the rate or rates of interest to be determined
as provided in Article III hereof.
"ISSUING BANK" means The Bank of Nova Scotia, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.03(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such affiliate
with respect to Letters of Credit issued by such affiliate.
"ISSUING BANK FEE" has the meaning assigned to that term in Section
2.07(b) hereof.
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of
14
all LC Disbursements that have not yet been reimbursed by or on behalf of the
Company at such time. The LC Exposure of any Bank at any time shall be its
Proportional Share of the total LC Exposure at such time.
"LC PARTICIPATION FEE" has the meaning assigned to that term in
Section 2.07(b) hereof.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LIEN" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"LOANS" and "LOAN" mean, respectively, (a) all loans made by the Banks
or Competitive Bid Banks or a single Bank or Competitive Bid Bank (as the
context may indicate) to the Company pursuant to this Agreement (including any
such loan made as a result of the operation of Section 2.06, Section
2.08(e)(ii), Section 2.08(e)(iii), Section 2.12(c)(i), Section 2.13(i), Section
4.03(b)(ii) or Section 4.03(b)(iii) hereof, as the case may be), and (b) a
single such loan made by any Bank or Competitive Bid Bank.
"MANAGING AGENTS" has the meaning assigned to that term in the
introduction to this Agreement.
"MARGIN" means, as to any Competitive Bid relating to a Eurodollar
Loan or a Certificate of Deposit Loan, the margin (expressed as a percentage
rate per annum and rounded, if necessary, to the nearest 1/10,000 of one
percent) to be added to or subtracted from the Eurodollar Rate or the
Certificate of Deposit Rate, as applicable, to determine the interest rate
offered by such Competitive Bid Bank with respect to such Eurodollar Loan or
Certificate of Deposit Loan.
"MATURITY DATE" means the earlier of June 18, 2009, or the date on
which the Revolving Credit Commitments shall terminate in accordance with the
terms of this Agreement.
"MOODY'S" means Moody's Investors Service, Inc. or any successor
thereto.
"MULTIEMPLOYER PLAN" has the meaning assigned to the term
"multiemployer plan" in Section 3(37) of ERISA.
"NOTE" means a Competitive Note or a Revolving Credit Note executed
and delivered by the Company as provided in Section 2.05 hereof.
"OFFICERS' CERTIFICATE" means a certificate executed on behalf of the
Company by its President or one of its Vice Presidents and by one of its other
Vice Presidents or its Treasurer or one of its Assistant Treasurers or its
Controller or one of its Assistant Controllers.
15
"PARTICIPANTS" and "PARTICIPANT" mean, respectively, (a) the banks and
other entities referred to in Section 10.06(b) hereof, and (b) any one of such
banks or other entities.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERSON" means a corporation, an association, a partnership, an
organization, a business, an individual, a government or a political subdivision
thereof or a governmental agency.
"PLAN" means (a) with respect to the Company, any plan described in
Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof,
under which the Company or any Related Person to the Company has contributed,
and (b) with respect to any other Person, any employee benefit plan or other
plan established or maintained by such Person for the benefit of such Person's
employees and to which Title IV of ERISA applies.
"PLAN ADMINISTRATOR" has the meaning assigned to the term
"administrator" in Section 3(16)(A) of ERISA.
"PLAN SPONSOR" has the meaning assigned to the term "plan sponsor" in
Section 3(16)(B) of ERISA.
"PRINCIPAL SUBSIDIARIES" and "PRINCIPAL SUBSIDIARY" mean,
respectively, (a) the following Persons (or any other Person which is, directly
or indirectly, the survivor or successor in interest in any merger or
consolidation involving, or the transferee with respect to all or substantially
all of the assets of, the following Persons): Occidental Chemical Corporation, a
New York corporation, Occidental Chemical Holding Corporation, a California
corporation, Occidental International Exploration and Production Company, a
California corporation, Occidental Oil and Gas Holding Corporation, a California
corporation, Occidental Petroleum Investment Co., a California corporation, Oxy
CH Corporation, a California corporation, Oxy Chemical Corporation, a California
corporation, OXY USA Inc., a Delaware corporation, Occidental Permian Ltd., a
Texas limited partnership, Occidental PVC LP, Inc., a Delaware corporation, OXY
Oil Partners, Inc., a Delaware corporation, Oxy Vinyls, LP, a Delaware limited
partnership, Occidental of Elk Hills, Inc., a Delaware corporation, Occidental
Petroleum of Qatar Ltd., a Bermuda corporation, Occidental International Oil and
Gas Ltd., a Bermuda corporation, Occidental International Holdings Ltd., a
Bermuda corporation, and any other Person which shall have become a Subsidiary
of the Company after December 31, 2003, and shall have, according to its most
recent audited year-end financial statements (or, if there are no audited
financial statements for its most recent fiscal year, its most recent unaudited
year-end financial statements) available at the date it became a Subsidiary,
total assets in excess of 5% of the consolidated assets of the Company and its
Consolidated Subsidiaries shown on the Company's most recent audited year-end
financial statements available at such time, and (b) any one of such Persons (or
any other Person which is, directly or indirectly, the survivor or successor in
interest in
16
any merger or consolidation involving, or the transferee with respect to all or
substantially all of the assets of, any one of such Persons); PROVIDED that,
notwithstanding the foregoing, no Excepted Subsidiary and no Person which is not
a Consolidated Subsidiary shall be a Principal Subsidiary.
"PROHIBITED TRANSACTION" has the respective meanings assigned to that
term in Section 4975 of the Code and in Section 406 of ERISA.
"PROPORTIONAL SHARE" means, at the time any determination thereof is
to be made and when used with reference to any Bank and any described aggregate
or total amount, an amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction, the numerator of which shall
be such Bank's Revolving Credit Commitment at such time and the denominator of
which shall be the Total Commitment at such time; PROVIDED, HOWEVER, that if
prior to the time of such determination the Revolving Credit Commitments shall
have been terminated pursuant to Section 8.01 hereof, any determination of
Proportional Share shall be based upon the amounts of Revolving Credit
Commitments and Total Commitment in effect immediately prior to such
termination.
"REFERENCE BANKS" and "REFERENCE BANK" mean, respectively, (a) the
following Persons: JPMorgan Chase Bank, The Bank of Nova Scotia, and Citicorp
USA, Inc., or any other Person hereafter appointed as a Reference Bank pursuant
to Section 10.08 hereof, and (b) any one of such Persons.
"REFINANCING LOAN" means (A) any Revolving Credit Loan (i) which is
made on the date of repayment of any other Revolving Credit Loan and (ii) all of
the proceeds of which are applied, in accordance with Section 2.06 hereof, to
the repayment of such other Revolving Credit Loan, and (B) any Revolving Credit
Loan (i) which is made on the date of prepayment of any other Revolving Credit
Loan and (ii) all of the proceeds of which are applied, in accordance with
Section 4.02 hereof, to the prepayment of such other Revolving Credit Loan. A
Refinancing Loan may be a Eurodollar Loan, a Certificate of Deposit Loan, a Term
Federal Funds Loan (except that a Term Federal Funds Loan may not be refinanced
with another Term Federal Funds Loan), an Alternate Base Rate Loan, or a
combination thereof, irrespective of whether the Loan or Loans being refinanced
with the proceeds of such Refinancing Loan were bearing interest based upon the
same or a different interest rate basis as such Refinancing Loan.
"REGISTER" has the meaning assigned to that term in Section 10.06(e)
hereof.
"REGULATION D" means Regulation D of the Board, as the same may at any
time be amended or modified and in effect.
"REGULATION U" means Regulation U of the Board, as the same may at any
time be amended or modified and in effect.
"REGULATION X" means Regulation X of the Board, as the same may at any
time be amended or modified and in effect.
17
"RELATED PERSON" means, with respect to any Person, any trade or
business (whether or not incorporated) which, together with such Person, is
under common control as described in Section 414(c) of the Code.
"REPLACEMENT LENDER" means a lending institution designated by the
Company pursuant to Section 2.08(e)(iv), Section 2.12(c)(ii), Section 2.13(ii),
or Section 4.03(b)(iv) hereof, which, at the time of such designation, is not a
Bank.
"REPORTABLE EVENT" means a "reportable event" described in Section
4043(b) of ERISA.
"REQUIRED BANKS" means, at the time any determination thereof is to be
made, Banks whose Revolving Credit Commitments aggregate at least 51% of the
Total Commitment, or, if the Revolving Credit Commitments shall have been
terminated pursuant to Section 8.01 hereof, Banks whose Revolving Credit
Commitments immediately prior to such termination aggregated at least 51% of the
Total Commitment immediately prior to such termination.
"REVOLVING CREDIT BORROWING" means a Borrowing (a) pursuant to Section
2.01(a) or Section 2.06 hereof consisting of simultaneous Revolving Credit Loans
from each of the Banks in accordance with their respective Proportional Shares
of such Borrowing, or (b) made as a result of the operation of Section
2.08(e)(ii), Section 2.08(e)(iii), Section 2.12(c)(i), Section 2.13(i), Section
4.03(b)(ii), or Section 4.03(b)(iii) hereof.
"REVOLVING CREDIT BORROWING REQUEST" means a request made pursuant to
Section 2.01(b) hereof substantially in the form of Exhibit E hereto.
"REVOLVING CREDIT COMMITMENT" means, when used with reference to any
Bank at the time any determination thereof is to be made, the amount of such
Bank's commitment hereunder to extend credit to the Company as set forth in
Section 2.01(a) and Section 2.03 hereof, which Revolving Credit Commitment,
subject to Section 8.01 hereof, shall be the amount set forth opposite the name
of such Bank on Schedule I hereto or the amount set forth in an Addendum of such
Bank delivered in accordance with Section 10.17 hereof, as such commitment may
from time to time be adjusted under Section 2.08(e)(ii), Section 2.12(c)(i),
Section 2.13(i) or Section 4.03(b)(ii) hereof, reduced by the amount of any
permanent reduction(s) in such amount made pursuant to Section 4.01 or Section
4.03(a) hereof.
"REVOLVING CREDIT COMMITMENTS" means each Revolving Credit Commitment,
collectively.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Bank at any
time, the sum of the outstanding principal amount of such Bank's Revolving
Credit Loans and its LC Exposure at such time.
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"REVOLVING CREDIT LOAN" shall have the meaning assigned to that term
in Section 2.01(a) hereof, and shall include, without limitation, any Substitute
Revolving Credit Loan.
"REVOLVING CREDIT NOTES" and "REVOLVING CREDIT NOTE" mean,
respectively, (a) the promissory notes of the Company substantially in the form
of Exhibit A-2 hereto, issued pursuant to and in accordance with this Agreement,
as such promissory notes may at any time be amended or modified and in effect,
and (b) a single such promissory note.
"SHORT-TERM BORROWING" means, with respect to any Person, all
Indebtedness of such Person in respect of borrowed money maturing on demand or
within one year from the date of the creation thereof and not directly or
indirectly renewable or extendible, at the option of the debtor, by its terms or
by the terms of any instrument or agreement relating thereto, to a date one year
or more from the date of the creation thereof; PROVIDED that Indebtedness of
such Person in respect of borrowed money arising under a revolving credit or
similar agreement which obligates the lender or lenders to extend credit over a
period of one year or more shall constitute Funded Debt and not a Short-Term
Borrowing even though the same matures on demand or within one year from the
date as of which such Short-Term Borrowing is to be determined.
"SPECIFIED SUBSIDIARY" means, at any time, any Consolidated
Subsidiary, a majority (by number of votes) of the Voting Securities of which is
at such time owned directly by the Company or by one or more of its Specified
Subsidiaries, or by the Company and one or more of its Specified Subsidiaries,
and which is not at such time designated as an Excepted Subsidiary; PROVIDED
that (i) at the time any Subsidiary of the Company is withdrawn from status as
an Excepted Subsidiary, such Subsidiary shall not be liable with respect to any
Indebtedness which it could not become liable with respect to hereunder on the
date of such withdrawal if it were then a Specified Subsidiary, and (ii)
immediately after giving effect to such withdrawal, no Event of Default or
Unmatured Event of Default shall have occurred and be continuing.
"S&P" means Standard & Poor's Corporation or any successor thereto.
"STATUTORY RESERVES" means the result (expressed as a percentage and
rounded, if necessary, to the nearest 1/10,000 of one percent) obtained by
dividing the number one by the number one minus the reserve percentage
(expressed as a decimal) (including, without limitation, any marginal, special,
emergency, or supplemental reserves) established by the Board and to which the
Administrative Agent is subject for time deposits in Dollars of over $100,000
with maturities approximately equal to the applicable Interest Period. Such
reserve percentage shall include, without limitation, reserves imposed under
Regulation D. Statutory Reserves shall be adjusted from time to time on and as
of the effective date of any change in the reserve percentage of the
Administrative Agent.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association, partnership or other business entity, a majority (by number of
votes) of the
18
Voting Securities of which is at the time owned by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries.
"SYNDICATION AGENTS" has the meaning assigned to that term in the
introduction to this Agreement.
"TANGIBLE NET WORTH" of any Person means the sum of the amounts set
forth on the balance sheet of such Person as (a) the par or stated value of all
outstanding capital stock, (b) the amount of the Capital Securities of such
Person, without duplication of the mandatorily redeemable capital trust
securities and the subordinated debentures of the Company in which the proceeds
of the issuance of such capital trust securities are invested; PROVIDED that the
aggregate amount of Capital Securities added pursuant to this clause (b) at any
time of issuance thereof shall not exceed 5% of the sum of Consolidated Debt and
Consolidated Adjusted Tangible Net Worth, calculated as of the time of such
issuance of any such securities and (c) capital surplus, earned surplus and
premium on capital stock less (i) the par or stated value of all redeemable
preferred stock, (ii) that portion of the book value of all assets which would
be treated as intangibles under generally accepted accounting principles,
including without limitation, all such items as goodwill, trademarks, trade
names, brands, copyrights, patents, licenses and rights with respect to the
foregoing and unamortized debt discount and expenses, and (iii) all investments
in or advances to Excepted Subsidiaries appearing on the asset side of such
balance sheet.
"TAXES" has the meaning assigned to that term in Section 2.12(a)
hereof.
"TERM FEDERAL FUNDS LOAN" means any Loan with respect to which the
Company shall have selected an Interest Rate based on the Term Federal Funds
Rate in accordance with the provisions of Article II hereof.
"TERM FEDERAL FUNDS RATE" means, for any Interest Period with respect
to any Term Federal Funds Loan, the rate per annum which is equal to the
arithmetic average (as determined by the Administrative Agent (subject to
Section 10.08 hereof) on the basis of quotations, if any, received by the
Administrative Agent from the Reference Banks, with such average expressed as a
percentage and rounded, if necessary, to the nearest 1/10,000 of one percent) of
the rates per annum at which each Reference Bank is offered term Federal funds
in the term Federal funds market as of 10:00 a.m., New York City time, on the
first Business Day of such Interest Period, for settlement on such day and for
the number of days comprised therein in an amount comparable to the amount of
the Term Federal Funds Loan of such Reference Bank to be outstanding for such
Interest Period.
"TOTAL COMMITMENT" means at any time the determination thereof is to
be made, the aggregate amount of the Revolving Credit Commitments of the Banks,
as in effect at such time.
"TRANSFEREE" has the meaning assigned to that term in Section 10.06(g)
hereof.
19
"UNMATURED EVENT OF DEFAULT" means an event, act or occurrence which
with the giving of notice or the lapse of time (or both) would become an Event
of Default.
"USA PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001.
"UTILIZATION FEE" has the meaning assigned to that term in Section
2.07(c) hereof.
"VOTING SECURITIES" means stock or partnership interests of any class
or classes (however designated), the holders of which are at the time entitled,
as such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership or other business entity in question, other than stock or
partnership interests having the right so to vote solely by reason of the
happening of a contingency.
SECTION 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles as in effect from time to time, including, without
limitation, releases and bulletins issued by the Securities and Exchange
Commission, applicable statements, interpretations and positions issued by the
Financial Accounting Standards Board and standards and releases issued by the
Public Company Accounting Oversight Board or their task forces and/or
committees. In the event that an actual or anticipated change (which term for
all purposes of this Agreement includes, without limitation, the adoption of a
new rule) in generally accepted accounting principles would affect the
computation of any dollar amounts or ratios referred to in the financial
covenants herein, the parties to the Agreement will, promptly upon request,
enter into negotiations in good faith in an effort to agree upon amendments
which will most nearly preserve the original intent of such financial covenants.
Pending agreement on such amendments, such financial covenants will remain in
effect but will be measured by reference to generally accepted accounting
principles as in effect immediately prior to such change. When used herein, the
term "financial statements" shall include the notes and schedules thereto, but
need not include such notes or schedules when used with reference to such
statements of any Person as of any date other than the end of a fiscal year of
such Person.
ARTICLE II
LOAN AND LETTER OF CREDIT PROVISIONS
SECTION 2.01. REVOLVING CREDIT COMMITMENTS; PROCEDURE FOR REQUESTS.
(a) Subject to the terms and conditions of this Agreement, each Bank, severally
and not jointly, agrees to make revolving credit loans ("REVOLVING CREDIT
LOANS") to the Company at any time and from time to time on and after the
Effective Date and until the Maturity Date; PROVIDED, HOWEVER, that (i) at no
time shall the outstanding aggregate principal amount of all Revolving Credit
Loans made by a Bank
20
exceed its Proportional Share of the outstanding aggregate principal amount of
all Revolving Credit Loans made by all Banks (notwithstanding the fact that the
aggregate principal amount outstanding at any time of all Revolving Credit Loans
and Competitive Loans made by a Bank may exceed the Revolving Credit Commitment
of such Bank then in effect) and (ii) at no time shall the sum of (A) the
outstanding aggregate principal amount of all Revolving Credit Loans and
Competitive Loans and (B) the LC Exposure exceed the Total Commitment; PROVIDED
FURTHER that nothing contained herein shall be deemed to prohibit the making of,
or to relieve any Bank of its obligation to make, Revolving Credit Loans the
proceeds of which are to be applied solely to the repayment of principal of any
Loan pursuant to Section 2.06 hereof. The Company may borrow, repay, prepay and
reborrow Revolving Credit Loans on and after the Effective Date and prior to the
Maturity Date. The Revolving Credit Commitments shall automatically and
permanently terminate on the Maturity Date.
(b) To effect a Revolving Credit Borrowing, the Company shall give the
Administrative Agent notice (by telephone (confirmed promptly in writing) or
telecopier), substantially in the form of Exhibit E hereto, (i) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Loans, not later than 12:00
noon, New York City time, three Business Days before such Revolving Credit
Borrowing, (ii) in the case of a Revolving Credit Borrowing consisting of
Certificate of Deposit Loans, not later than 12:00 noon, New York City time, two
Business Days before such Revolving Credit Borrowing, (iii) in the case of a
Revolving Credit Borrowing consisting of Term Federal Funds Loans, not later
than 12:00 noon New York City time, one Business Day before such Revolving
Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Alternate Base Rate Loans, not later than 1:00 p.m., New York City
time, on the Business Day of such Revolving Credit Borrowing. Such notice shall
be irrevocable (except as provided in Section 2.08(e)(i), Section 2.12(c)(iii),
Section 3.03(b), Section 3.03(d) or Section 4.03(b)(i) hereof) and shall in each
case refer to this Agreement and specify (x) whether the Loans then being
requested are to be Eurodollar Loans, Certificate of Deposit Loans, Term Federal
Funds Loans or Alternate Base Rate Loans, or a combination thereof, (y) the
Borrowing Date with respect to such Loans (which shall be a Business Day) and
the aggregate principal amount thereof, and (z) in the case of Eurodollar Loans
and Certificate of Deposit Loans, the Interest Period with respect thereto. If
no Interest Period with respect to any Eurodollar Loan or Certificate of Deposit
Loan is specified in any such notice, then (i) in the case of a Eurodollar Loan,
the Company shall be deemed to have selected an Interest Period of one month's
duration, and (ii) in the case of a Certificate of Deposit Loan, the Company
shall be deemed to have selected an Interest Period of 30 days' duration. The
Administrative Agent shall promptly advise the other Banks by telecopier of any
notice given pursuant to this Section 2.01(b) and of each Bank's portion of the
requested Revolving Credit Borrowing.
SECTION 2.02. COMPETITIVE LOANS; PROCEDURE FOR REQUESTS. (a) Subject
to the terms and conditions of this Agreement, the Company may from time to time
request Competitive Bid Banks to submit Competitive Bids, and the Competitive
Bid Banks may submit such Competitive Bids and, from time to time on and after
the Effective Date and prior to the Maturity Date, may make Competitive Loans in
accordance with the procedures set forth in this Section 2.02. At no time shall
(i) the
22
outstanding aggregate principal amount of all Competitive Loans made by a
Competitive Bid Bank or (ii) the sum of the outstanding aggregate principal
amount of all Revolving Credit Loans and Competitive Loans made by all Banks and
the LC Exposure exceed the Total Commitment, notwithstanding the fact that the
aggregate principal amount outstanding at any time of all Competitive Loans made
by a Competitive Bid Bank may exceed the Revolving Credit Commitment of such
Bank.
(b) To request Competitive Bids, the Company shall give the
Administrative Agent (by telephone (confirmed in writing no later than 5:00
p.m., New York City time, on the same day) or telecopier) a duly completed
Competitive Bid Request substantially in the form of Exhibit B hereto, to be
received by the Administrative Agent (i) in the case of Eurodollar Loans, not
later than 12:00 noon, New York City time, five Business Days before a proposed
Competitive Borrowing, (ii) in the case of Certificate of Deposit Loans, not
later than 12:00 noon, New York City time, four Business Days before a proposed
Competitive Borrowing, and (iii) in the case of Fixed Rate Loans, not later than
11:00 a.m., New York City time, one Business Day before a proposed Competitive
Borrowing. No Alternate Base Rate Loan or Term Federal Funds Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit B hereto
may be rejected in the Administrative Agent's sole discretion, and the
Administrative Agent shall promptly notify the Company of such rejection by
telephone (confirmed promptly in writing) or telecopier. A Competitive Bid
Request shall in each case refer to this Agreement and specify (x) whether the
Loans then being requested are to be Eurodollar Loans, Certificate of Deposit
Loans or Fixed Rate Loans, (y) the Borrowing Date with respect to such Loans
(which shall be a Business Day) and the aggregate principal amount thereof
(which shall be in amounts such that the aggregate principal amount of all Loans
outstanding immediately following the Borrowing of the Loans pursuant to such
Competitive Bid Request shall not exceed the Total Commitment), and (z) the
Interest Period with respect thereto. The aggregate principal amount of the
Competitive Borrowing requested pursuant to any Competitive Bid Request shall
not be less than $50,000,000. Promptly after its receipt of a Competitive Bid
Request that is not rejected as aforesaid, the Administrative Agent shall invite
by telecopier (in the form set forth in Exhibit C hereto) the Competitive Bid
Banks to bid, on the terms and conditions of this Agreement, to make Competitive
Loans pursuant to the Competitive Bid Request.
(c) Each Competitive Bid Bank may, in its sole discretion, make one or
more Competitive Bids to the Company responsive to the Competitive Bid Request.
Each Competitive Bid by a Competitive Bid Bank must be in the form of Exhibit D
hereto and must be received by the Administrative Agent by telecopier, (i) in
the case of Eurodollar Loans, not later than 2:00 p.m., New York City time, four
Business Days before a proposed Competitive Borrowing, (ii) in the case of
Certificate of Deposit Loans, not later than 2:00 p.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (iii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Borrowing Date of the proposed Competitive Borrowing. Competitive Bids that do
not conform substantially to the format of Exhibit D hereto may be rejected by
the Administrative Agent after conferring with, and
23
upon the instruction of, the Company, and the Administrative Agent shall notify
the Competitive Bid Bank that submitted such Competitive Bid of such rejection
as soon as practicable. Each Competitive Bid shall refer to this Agreement and
specify (x) the principal amount (which shall be in a minimum principal amount
of $5,000,000 and in an integral multiple of $l,000,000 and which may equal the
entire aggregate principal amount of the Competitive Borrowing requested by the
Company) of the Competitive Loan that the Competitive Bid Bank is willing to
make to the Company, (y) the Competitive Bid Rate at which the Competitive Bid
Bank is prepared to make the Competitive Loan, and (z) the Interest Period with
respect thereto. Except as provided in Section 2.08(e)(i), Section 2.12(c)(iii),
Section 3.03(c), and Section 4.03(b)(i) hereof, a Competitive Bid submitted by a
Competitive Bid Bank pursuant to this Section 2.02(c) shall be irrevocable. If
any Competitive Bid Bank shall elect not to make a Competitive Bid with respect
to a proposed Competitive Borrowing, such Competitive Bid Bank shall so notify
the Administrative Agent by telecopier (i) in the case of Eurodollar Loans, not
later than 2:00 p.m., New York City time, four Business Days before such
proposed Competitive Borrowing, (ii) in the case of Certificate of Deposit
Loans, not later than 2:00 p.m., New York City time, three Business Days before
such proposed Competitive Borrowing, and (iii) in the case of Fixed Rate Loans,
not later than 9:30 a.m., New York City time, on the Borrowing Date of such
proposed Competitive Borrowing; PROVIDED, HOWEVER, that the failure of any
Competitive Bid Bank to give such notice shall not cause such Bank to be
obligated to make any Competitive Loan as part of such Competitive Borrowing.
(d) The Administrative Agent shall notify the Company of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the identity
of the Competitive Bid Bank that made each bid; such notice shall be given to
the Company by telephone (confirmed immediately by telecopier) not later than
(i) 45 minutes (in the case of Competitive Bids for Fixed Rate Loans) and (ii) 2
hours (in the case of other Competitive Bids) after the latest time by which
such Competitive Bids were required to be received by the Administrative Agent
pursuant to Section 2.02(c) hereof. The Administrative Agent shall send a copy
of all Competitive Bids to the Company for its records as soon as practicable
after completion of the bidding process set forth in this Section 2.02.
(e) The Company may in its sole and absolute discretion, subject only
to the provisions of this Section 2.02(e), accept or reject any Competitive Bid
referred to in Section 2.02(d) hereof. The Company shall notify the
Administrative Agent (by telephone or telecopier) whether and to what extent it
has decided to accept or reject any or all of the Competitive Bids referred to
in Section 2.02(d) hereof, (i) in the case of Eurodollar Loans, not later than
12:00 noon, New York City time, three Business Days before a proposed
Competitive Borrowing, (ii) in the case of Certificate of Deposit Loans, not
later than 12:00 noon, New York City time, two Business Days before a proposed
Competitive Borrowing, and (iii) in the case of Fixed Rate Loans, not later than
10:30 a.m., New York City time, on the Borrowing Date of the proposed
Competitive Borrowing; PROVIDED, HOWEVER, that (v) the failure by the Company to
give such notice shall be deemed to be a rejection of all the Competitive Bids
referred to in
24
Section 2.02(d) hereof, (w) the Company shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if the Company has rejected a Competitive
Bid made at a lower Competitive Bid Rate, (x) the aggregate principal amount of
the Competitive Borrowing to be made may not exceed the principal amount of
Competitive Loans requested by the Company pursuant to the related Competitive
Bid Request, (y) if the Company shall accept Competitive Bids made at a
particular Competitive Bid Rate but shall be restricted by other conditions
hereof from borrowing the aggregate principal amount of Competitive Loans in
respect of which Competitive Bids at such Competitive Bid Rate have been made,
then, to the extent of the aggregate principal amount of the Competitive
Borrowing to be made, the Company shall accept a PRO RATA portion of each
Competitive Bid made at such Competitive Bid Rate based as nearly as possible on
the respective principal amounts of Competitive Loans for which such Competitive
Bids were made (provided that if the available principal amount of Competitive
Loans to be so allocated is not sufficient to enable Competitive Loans to be so
allocated to each such Competitive Bid Bank in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000, the Company shall select the
Competitive Bid Banks to be allocated such Competitive Loans and shall round
allocations up or down to the next higher or lower multiple of $1,000,000 as it
shall deem appropriate), and (z) no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000. If telephonic notice of
acceptance or rejection of a Competitive Bid is given by the Company to the
Administrative Agent pursuant to the immediately preceding sentence, such notice
shall be confirmed in writing no later than (A) in the case of Eurodollar Loans
or Certificate of Deposit Loans, 5:00 p.m., New York City time, on the day such
notice is given, or (B) in the case of Fixed Rate Loans, 1:00 p.m., New York
City time, on the day such notice is given. Except as provided in Section
2.08(e)(i), Section 2.12(c)(iii), Section 3.03(c), and Section 4.03(b)(i)
hereof, a notice given by the Company pursuant to this Section 2.02(e) shall be
irrevocable.
(f) The Administrative Agent shall promptly notify by telecopier each
of the Competitive Bid Banks which has submitted a Competitive Bid whether or
not their Competitive Bids have been accepted (and if so, in what amount and at
what Competitive Bid Rate), and each successful Competitive Bid Bank shall
thereupon become bound to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(g) A Competitive Borrowing shall not be made within five Business
Days of the Borrowing Date of any other Competitive Borrowing, unless the
Company and the Administrative Agent shall mutually agree otherwise.
(h) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Competitive Bid Bank, it shall submit such bid to the
Company one quarter of an hour earlier than the latest time at which the other
Competitive Bid Banks are required to submit their bids to the Administrative
Agent pursuant to Section 2.02(c) hereof.
SECTION 2.03. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the Company may request the issuance of Letters of
25
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time on
and after the Effective Date and until the fifth Business Day prior to the
Maturity Date. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Company to, or entered
into by the Company with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Company also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $200,000,000 and (ii) the sum of
the outstanding aggregate principal amount of all Revolving Credit Loans and
Competitive Loans made by all Banks and the LC Exposure shall not exceed the
total Commitments. At the request of any Bank at any time, the Issuing Bank will
advise such Bank of the amount of the LC Exposure at such time. If the Required
Banks notify the Issuing Bank that an Event of Default or an Unmatured Event of
Default exists and instruct the Issuing Bank to suspend the issuance, amendment,
renewal or extension of Letters of Credit, the Issuing Bank shall not issue,
amend, renew or extend any Letter of Credit without the consent of the Required
Banks until such notice is withdrawn by the Required Banks (and each Bank that
shall have delivered such notice agrees promptly to withdraw it at such time as
no Event of Default or Unmatured Event of Default exists).
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date; PROVIDED that any Letter
of Credit may provide for automatic renewals thereof for additional periods of
one year in the absence of a notice from the Issuing Bank to the contrary so
long as the final expiry of such Letter of Credit is not later than the date
referred to in clause (ii) of this sentence (and the Issuing Bank is hereby
directed to give
26
any notice required in order that the expiry of any Letter of Credit will not be
later than such date).
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Banks, the Issuing Bank
hereby grants to each Bank, and each Bank hereby acquires from the Issuing Bank,
a participation in such Letter of Credit equal to such Bank's Proportional Share
of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Bank hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Bank's Proportional Share of each LC Disbursement made
by the Issuing Bank and not reimbursed by the Company on the date due as
provided in Section 2.03(e) hereof, or of any reimbursement payment required to
be refunded to the Company for any reason. Each Bank acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of an Event
of Default or Unmatured Event of Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Company shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Company shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Company prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Company receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt; PROVIDED that,
if such LC Disbursement is not less than $10,000,000, the Company may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.01 that such payment be financed with a Borrowing consisting of
Alternate Base Rate Loans in an equivalent amount and, to the extent so
financed, the Company's obligation to make such payment shall be discharged and
replaced by the resulting Borrowing. If the Company fails to make such payment
when due, the Administrative Agent shall notify each Bank of the applicable LC
Disbursement, the payment then due from the Company in respect thereof and such
Bank's Proportional Share thereof. Promptly following receipt of such notice,
each Bank shall pay to the Administrative Agent its Proportional Share of the
payment then due from the Company, in the same manner as provided in Section
2.04 with respect to Loans made by such Bank (and Section 2.04 shall apply,
mutatis mutandis, to the payment obligations of the Banks), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Banks. Promptly following receipt by Administrative
27
Agent of any payment from the Company pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to
the extent that Banks have made payments pursuant to this paragraph to reimburse
the Issuing Bank, then to such Banks and the Issuing Bank as their interests may
appear. Any payment made by a Bank pursuant to this paragraph to reimburse the
Issuing Bank for any LC Disbursement (other than the funding of Alternate Base
Rate Loans as contemplated above) shall not constitute a Loan and shall not
relieve the Company of its obligation to reimburse such LC Disbursement.
(f) OBLIGATIONS ABSOLUTE. The Company's obligation to reimburse LC
Disbursements as provided in Section 2.03(e) hereof shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's obligations hereunder. None of
the Administrative Agent, the Banks or the Issuing Bank, or any of their
affiliates, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Company to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Company to the extent permitted by applicable law) suffered by the
Company that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank, the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
28
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; PROVIDED that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to Alternate Base Rate Loans; PROVIDED
that, if the Company fails to reimburse such LC Disbursement when due pursuant
to Section 2.03(e) hereof, then Section 3.02 hereof shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender Bank
pursuant to Section 2.03(e) hereof to reimburse the Issuing Bank shall be for
the account of such Bank to the extent of such payment.
(i) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Banks of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.07(b) hereof. From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and such previous Issuing Bank, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Banks (or, if the maturity of the Loans has
been accelerated, Banks with LC Exposures representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Company shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the Banks,
an amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; PROVIDED that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of
29
any kind, upon the occurrence of any Event of Default with respect to the
Company described in clause (e) or (f) of Article VIII. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Company under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option of the
Administrative Agent, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or, if
the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposures representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Company under this
Agreement. If the Company is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Company within
three Business Days after all Events of Default have been cured or waived.
SECTION 2.04. GENERAL TERMS RELATING TO THE LOANS. (a) Each Borrowing
made by the Company on any Borrowing Date shall be (i) in the case of
Competitive Loans, in an integral multiple of $1,000,000 and in a minimum
aggregate principal amount of $5,000,000 and (ii) in the case of Revolving
Credit Loans, in an integral multiple of $10,000,000 and in a minimum aggregate
principal amount of $50,000,000. Competitive Loans shall be made by the
Competitive Bid Banks in accordance with Section 2.02(e) hereof, Revolving
Credit Loans shall be made by the Banks ratably in accordance with their
respective Revolving Credit Commitments on the Borrowing Date of the Revolving
Credit Borrowing; PROVIDED, HOWEVER, that the failure of any Bank to make any
Loan shall not in itself relieve any other Bank of its obligation to lend
hereunder.
(b) Each Competitive Loan shall be a Eurodollar Loan, a Certificate of
Deposit Loan or a Fixed Rate Loan, and each Revolving Credit Loan shall be a
Eurodollar Loan, a Certificate of Deposit Loan, a Term Federal Funds Loan or an
Alternate Base Rate Loan, as the Company may request subject to and in
accordance with Section 2.01 or Section 2.02 hereof, as applicable. Each Bank
may at its option make any Eurodollar Loan by causing a foreign branch or
affiliate of such Bank to make such Loan; PROVIDED, HOWEVER, that (i) any
exercise of such option shall not affect the obligation of the Company to repay
such Loan to such Bank in accordance with the terms of the applicable Note, (ii)
such Bank shall promptly advise the Company of the exercise of such option, the
name and address of such foreign branch or affiliate and such other information
with respect to such branch or affiliate as the Company may reasonably request,
and (iii) the exercise of such option, as of the time of such exercise, shall
not materially increase the amounts which would have been payable by the Company
to such Bank under this Agreement and the Notes. Revolving Credit Loans of more
than one interest rate option may be outstanding at the same time; PROVIDED,
HOWEVER, that, unless the Administrative Agent and the Company shall otherwise
agree, the Company shall not
30
be entitled to request any Revolving Credit Loan or Competitive Loan which, if
made, would result in an aggregate of more than ten separate Revolving Credit
Loans of any Bank and ten separate Competitive Loans being outstanding hereunder
at any one time. For purposes of the foregoing, Revolving Credit Loans having
different Interest Periods, regardless of whether they commence on the same
date, and Revolving Credit Loans having different interest rate options, shall
be considered separate Loans.
(c) Subject to Section 2.06 hereof, each Bank shall make available its
portion, as appropriate, of each Competitive Borrowing and Revolving Credit
Borrowing on the proposed Borrowing Date thereof by paying the amount required
to the Administrative Agent in New York, New York, in Dollars, in immediately
available funds not later than 11:00 a.m. (or 12:00 noon in the case of Fixed
Rate Loans or 2:00 p.m. in the case of Alternate Base Rate Loans), New York City
time, and the Administrative Agent shall by 1:00 p.m. (or 3:00 p.m. in the case
of Alternate Base Rate Loans), New York City time, credit the amounts so
received (or, subject to Section 2.04(d) hereof, its own funds but, in either
case, in Dollars in immediately available funds) to such account of the Company
as it shall designate in writing to the Administrative Agent or, if Loans are
not made on such date because any condition precedent to a Borrowing herein
specified shall not have been met, promptly return the amounts so received to
the respective Banks.
(d) Unless the Administrative Agent shall have been notified by a Bank
prior to the Borrowing Date of any Loan that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of the Loan to be made
on such Borrowing Date, the Administrative Agent may assume that such Bank has
made such proceeds available to the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to the Company a corresponding amount. If, and only
if, such notice is not given and such corresponding amount is not in fact made
available to the Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such amount on demand from such Bank (or, if such
Bank fails to pay such amount forthwith upon such demand, from the Company)
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Company and ending
on (but excluding) the date the Administrative Agent recovers such amount at a
rate per annum equal to (i) in the case of such Bank, the Federal Funds
Effective Rate and (ii) in the case of the Company, the applicable Interest Rate
in respect of such Loan.
SECTION 2.05. NOTES. The Competitive Loans made by each Competitive
Bid Bank shall be evidenced by a single Competitive Note duly executed on behalf
of the Company, dated the date of this Agreement, in substantially the form
attached hereto as Exhibit A-1 with the blanks appropriately filled, payable to
the order of such Competitive Bid Bank in a principal amount equal to the Total
Commitment. The Revolving Credit Loans made by each Bank shall be evidenced by a
single Revolving Credit Note duly executed on behalf of the Company, dated the
date of this Agreement, in substantially the form attached hereto as Exhibit A-2
with the blanks appropriately filled, payable to the order of such Bank in a
principal amount equal to the Revolving Credit Commitment of such Bank. The
outstanding principal balance of each
31
Revolving Credit Loan and each Competitive Loan, as evidenced by the relevant
Note, shall be payable on the last day of the Interest Period applicable to such
Loan. Each Note shall bear interest from the date thereof on the outstanding
principal balance thereof as set forth in Section 3.01 hereof. Each Bank shall,
and is hereby authorized by the Company to, endorse on the schedule attached to
the relevant Note held by such Bank (or on a continuation of such schedule
attached to each such Note and made a part thereof) an appropriate notation
evidencing the Borrowing Date and amount of each Loan of such Bank, each payment
or prepayment (including any deemed repayment pursuant to Section 2.06 hereof)
of principal of any Loan and the other information provided for on such
schedule; PROVIDED, HOWEVER, that the failure of any Bank to make such a
notation or any error therein shall not in any manner affect the obligation of
the Company to repay the Loans made by such Bank in accordance with the terms of
the relevant Note.
SECTION 2.06. REFINANCINGS. The Company may refinance all or any part
of any Loan with a Loan or Loans of the same or a different type made pursuant
to Section 2.01 or Section 2.02 hereof; PROVIDED, HOWEVER, that (i) no Term
Federal Funds Loan may be refinanced with another Term Federal Funds Loan, and
(ii) the aggregate principal amount of the new Borrowings shall not exceed the
aggregate principal amount of the Loans being refinanced. Any Loan or part
thereof so refinanced shall be deemed to be repaid in accordance with Section
2.05 hereof with the proceeds of a new Borrowing hereunder; PROVIDED, HOWEVER,
that with respect to any new Borrowing which results in any Bank extending a
Loan in a different principal amount than such Bank extended in the Loan being
refinanced (E.G., the refinancing of a Revolving Credit Loan with a Competitive
Advance Loan), (i) if the principal amount extended by a Bank in a refinancing
is greater than the principal amount extended by such Bank in the Borrowing
being refinanced, such Bank shall pay such difference to the Administrative
Agent for distribution to the Banks described in (ii) below, and (ii) if the
principal amount extended by a Bank in the Borrowing being refinanced is greater
than the principal amount being extended by such Bank in the refinancing, the
Administrative Agent shall return the difference to such Bank out of amounts
received pursuant to (i) above. If the Company shall not have repaid any
Revolving Credit Loan on the last day of the Interest Period with respect
thereto and shall not have given notice with respect to the refinancing of such
Loan in accordance with the applicable provisions of Section 2.01 or Section
2.02 hereof, as appropriate, it shall be deemed to have elected to refinance
such Loan with a Revolving Credit Loan which is an Alternate Base Rate Loan to
be made on the last day of the Interest Period of the Loan so refinanced.
SECTION 2.07. FEES. (a) FACILITY FEE. The Company agrees to pay to
each Bank, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 (the first such payment to be made on June 30,
2004) and on the date on which the Revolving Credit Commitment of such Bank
shall be terminated or the Maturity Date, whichever shall first occur, in
immediately available funds, a facility fee (a "FACILITY FEE") at a rate per
annum equal to the Applicable Facility Fee Percentage from time to time in
effect on the average daily amount of the Revolving Credit Commitment of such
Bank, whether used or unused, during the Calendar Quarter (or shorter period
beginning on the Effective Date or ending on June 30, 2004, or the Maturity
Date, as the case may be) then ended; PROVIDED, HOWEVER, that the amount
32
payable by the Company under this paragraph shall be reduced by any amounts paid
on account of the Facility Fees pursuant to Section 4.01 hereof. All Facility
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 365 or 366 days, as the case may be, and shall commence to accrue on the
Effective Date.
(b) LETTER OF CREDIT FEES. The Company agrees to pay (i) to the
Administrative Agent for the account of each Bank a participation fee with
respect to its participations in Letters of Credit (the "LC PARTICIPATION FEE"),
which shall accrue at the Applicable Margin used to determine the interest rate
applicable to Eurodollar Revolving Credit Loans, on the average daily amount of
such Bank's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Bank's
Revolving Credit Commitment terminates and the date on which such Bank ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder (the fees provided for in this clause (ii) being collectively
referred to as the "ISSUING BANK FEES"). Accrued participation fees and fronting
fees shall be payable on each March 31, June 30, September 30 and December 31
(the first such payment to be made on June 30, 2004); PROVIDED that all such
fees shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving
Credit Commitments terminate shall be payable on demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) UTILIZATION FEE. The Company agrees to pay to each Bank, through
the Administrative Agent, on each March 31, June 30, September 30 and December
31 (the first such payment to be made on June 30, 2004) and on the date on which
the Revolving Credit Commitment of such Bank shall be terminated or the Maturity
Date, whichever shall first occur, in immediately available funds, a utilization
fee (a "UTILIZATION FEE") at a rate per annum equal to 0.125% per annum on the
principal amount of the outstanding Revolving Credit Loans of such Bank for each
day during the Calendar Quarter (or shorter period beginning on the Effective
Date or ending on June 30, 2004, or the Maturity Date, as the case may be) then
ended on which the sum of (i) the outstanding aggregate principal amount of all
Revolving Credit Loans and Competitive Loans and (ii) the LC Exposure shall have
exceeded 50% of the Total Commitment. All Utilization Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days. The
Utilization Fee due to each Bank shall be payable in arrears and shall commence
to accrue on the Effective Date and cease to accrue on the date on which the
Revolving Credit Commitment of such Bank shall have been terminated and its
Loans repaid in full.
33
SECTION 2.08. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a) If
after the date of this Agreement any change in applicable law or regulation or
in the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not having
the force of law but with respect to which similarly situated banks generally
comply) (any such change, an "INCREASED COST CHANGE") (i) shall change the basis
of taxation of payments to any Bank of the principal of or interest on any
Eurodollar Loan, Term Federal Funds Loan, Certificate of Deposit Loan or Fixed
Rate Loan made by such Bank or any amounts due to the Issuing Bank in connection
with any LC Disbursement or any other fees or amounts payable hereunder (other
than (x) taxes imposed on the overall net income of such Bank or the Issuing
Bank by the jurisdiction in which such Bank or the Issuing Bank has its
principal or lending office or by any political subdivision or taxing authority
therein (or any tax which is enacted or adopted by such jurisdiction, political
subdivision or taxing authority as a direct substitute for any such taxes) or
(y) any tax, assessment, or other governmental charge that would not have been
imposed but for the failure of any Bank or the Issuing Bank to comply with any
certification, information, documentation, or other reporting requirement), or
(ii) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, such Bank or the Issuing Bank (except any such requirement
reflected in the Base CD Rate or the Certificate of Deposit Rate) or (iii) shall
impose on such Bank or the Issuing Bank or on the London Interbank Market, the
Certificate of Deposit market or the term Federal funds market any other
condition affecting this Agreement or any Eurodollar Loan, Term Federal Funds
Loan or Certificate of Deposit Loan made by such Bank or any Letter of Credit
issued by the Issuing Bank, and the result of any of the foregoing shall be to
increase the cost to such Bank or the Issuing Bank of making or maintaining any
Eurodollar Loan, Term Federal Funds Loan or Certificate of Deposit Loan or
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Bank or the Issuing Bank hereunder (whether of
principal, interest or otherwise) in respect thereof by an amount deemed in good
faith by such Bank or the Issuing Bank to be material, then, subject to Section
2.08(d) hereof, such additional amount or amounts as will compensate such Bank
or the Issuing Bank for such increase or reduction will be paid by the Company
to such Bank or the Issuing Bank as provided in Section 2.08(c) hereof. Any such
amount determined pursuant to this Section 2.08(a) shall be computed on the
basis of the net effect of any Increased Cost Changes incurred by such Bank or
the Issuing Bank from time to time after the Effective Date of this Agreement.
(b) If any Bank or the Issuing Bank shall have determined in good
faith that the adoption or issuance, after the date of this Agreement, of any
applicable law, rule, regulation, guideline, request or directive regarding
capital adequacy (whether or not having the force of law but with respect to
which similarly situated banks generally comply) (a "CAPITAL ADEQUACY RULE"), or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such adoption, issuance
or change of a Capital Adequacy Rule being called a "CAPITAL ADEQUACY CHANGE"),
or compliance therewith by any Bank or the Issuing Bank (or any lending office
of such Bank or the Issuing Bank or any corporation controlling such Bank
34
or the Issuing Bank), has the net effect of reducing the rate of return on such
Bank's or the Issuing Bank's capital as a consequence of such Bank's commitment
to make, or the making or maintaining of, any Loans hereunder or such Bank's
participations in Letters of Credit, or the Issuing Bank's issuance of Letters
of Credit to a level below that which such Bank or the Issuing Bank (or any such
corporation controlling such Bank or the Issuing Bank) would have achieved but
for such adoption, change or compliance (taking into consideration such Bank's
or the Issuing Bank's policies with respect to capital adequacy and any Capital
Adequacy Rule in effect as of the date of this Agreement) by an amount deemed by
such Bank or the Issuing Bank to be material, then from time to time the Company
shall, subject to Section 2.08(d) hereof, pay to such Bank or the Issuing Bank
such additional amount or amounts as will compensate such Bank or the Issuing
Bank for such reduction as provided in Section 2.08(c) hereof; PROVIDED,
HOWEVER, that to the extent (i) a Bank or the Issuing Bank shall increase its
level of capital above the level maintained by such Bank or the Issuing Bank on
the date of this Agreement and there has not been a Capital Adequacy Change, or
(ii) there has been a Capital Adequacy Change and a Bank or the Issuing Bank
shall increase its level of capital by an amount greater than the increase
attributable (taking into consideration the same variables taken into
consideration in determining the level of capital maintained by such Bank or the
Issuing Bank on the date of this Agreement) to such Capital Adequacy Change, the
Company shall not be required to pay any amount or amounts under this Agreement
with respect to any such increase in capital. Thus, for example, a Bank which is
"adequately capitalized" (as such term or any similar term is used by any
applicable bank regulatory agency having authority with respect to such Bank)
may not require the Company to make payments in respect of increases in such
Bank's level of capital made under the circumstances described in clause (i) or
(ii) above which improve its capital position from "adequately capitalized" to
"well capitalized" (as such term or any similar term is used by any applicable
bank regulatory agency having authority with respect to such Bank).
(c) A certificate of each Bank or the Issuing Bank setting forth such
amount or amounts as shall be necessary to compensate such Bank or the Issuing
Bank (or a Participant pursuant to Section 10.06(b) hereof) as specified in
paragraph (a) or (b) of this Section 2.08, as the case may be, shall be
delivered to the Company at the end of each Calendar Quarter during which such
Bank is an Affected Bank or the Issuing Bank is affected by the events referred
to in paragraph (a) or (b) of this Section 2.08, and upon the taking by the
Company in respect of such Bank or the Issuing Bank of one of the actions
described in paragraph (e)(ii) or (e)(iv) of this Section 2.08 and shall, if
submitted in good faith, be conclusive absent manifest error; PROVIDED that any
certificate delivered by a Bank or the Issuing Bank pursuant to this Section
2.08(c) shall (i) in the case of a certificate in respect of amounts payable
pursuant to paragraph (a) of this Section 2.08, set forth in reasonable detail
the basis for and the calculation of such amounts, and (ii) in the case of a
certificate in respect of amounts payable pursuant to paragraph (b) of this
Section 2.08, (A) set forth at least the same amount of detail in respect of the
calculation of such amount as such Bank or the Issuing Bank provides in similar
circumstances to other similarly situated borrowers from such Bank or the
Issuing Bank, and (B) include a statement by such Bank or the Issuing Bank that
it has allocated to its Revolving Credit Commitment or outstanding Loans a
proportionately equal amount of any reduction of
35
the rate of return on such Bank's or the Issuing Bank's capital due to a Capital
Adequacy Rule as it has allocated to each of its other commitments to lend or to
each of its other outstanding loans that are affected similarly by such Capital
Adequacy Rule. The Company shall pay each Bank or the Issuing Bank the amount
shown as due on any such certificate upon the earlier of (i) the date on which
the Company takes one of the actions in respect of any such Bank or the Issuing
Bank described in paragraph (e)(ii) or (e)(iv) of this Section 2.08 and (ii) 30
days after receipt by the Company of such certificate.
(d) Subject to the following provisions of this Section 2.08(d),
failure on the part of any Bank or the Issuing Bank to demand compensation for
any amounts payable pursuant to paragraphs (a) or (b) of this Section 2.08 with
respect to any Interest Period or other period shall not constitute a waiver of
such Bank's or the Issuing Bank's rights to demand compensation for any such
amounts with respect to any other Interest Period or other period. In the case
of any Increased Cost Change which is given retroactive effect to a date prior
to the adoption thereof, a Bank or the Issuing Bank shall be entitled to seek
compensation in respect thereof pursuant to paragraph (a) of this Section 2.08
for the period commencing on such retroactive effective date and, in the case of
any Bank, ending on the date on which the Company takes one of the actions in
respect of such Bank described in paragraph (e)(ii) or (e)(iv) of this Section
2.08; PROVIDED, HOWEVER, that (i) if such Bank or the Issuing Bank shall fail to
notify the Company within 30 days after the date of official promulgation of
such Increased Cost Change that it will demand such compensation, the period for
which such Bank or the Issuing Bank shall be entitled to seek compensation in
respect thereof shall commence on the date which is 30 days prior to such Bank's
or the Issuing Bank's notice that it will demand compensation, and (ii) if any
Increased Cost Change is given retroactive effect to a date which is more than
three months prior to the date of adoption thereof, the Company's liability to
pay compensation to such Bank or the Issuing Bank in respect thereof for any
period prior to the date which is three months prior to the adoption thereof
shall, subject to the foregoing clause (i) of this proviso, be equal to 50% of
the amount required to compensate such Bank or the Issuing Bank in respect of
such Increased Cost Change with respect to such period. In the case of any
Increased Cost Change which is given only prospective effect, a Bank or the
Issuing Bank shall be entitled to seek compensation in respect thereof pursuant
to paragraph (a) of this Section 2.08 for the period commencing on the later of
(A) the date on which such Increased Cost Change becomes effective and (B) the
date 30 days prior to the notice by such Bank or the Issuing Bank that it will
demand such compensation, and, in the case of any Bank, ending on the date on
which the Company takes one of the actions in respect of such Bank described in
paragraph (e)(ii) or (e)(iv) of this Section 2.08. In the case of any Capital
Adequacy Change, a Bank or the Issuing Bank shall be entitled to seek
compensation in respect thereof pursuant to paragraph (b) of this Section 2.08
only with respect to costs or reductions commencing on the later of (A) the date
on which such Capital Adequacy Rule becomes effective and (B) the date 45 days
prior to the notice by such Bank or the Issuing Bank that it will demand such
compensation, and, in the case of any Bank, ending on the date on which the
Company takes one of the actions in respect of such Bank described in paragraph
(e)(ii) or (e)(iv) of this Section 2.08.
36
(e) In the event that any Affected Bank shall have given notice that
it is entitled to claim compensation pursuant to this Section 2.08, the Company
may exercise any one or more of the following options:
(i) If any such claim for compensation relates to Loans then
being requested by the Company pursuant to a notice of Borrowing as
provided in this Article II (or, in the case of claims for
compensation pursuant to paragraph (g) of this Section 2.08, any such
claim relates to Loans outstanding during the Interest Period most
recently ended and the Company has requested Eurodollar Loans pursuant
to such a notice of Borrowing), the Company may, not later than 12:00
noon, New York City time, on the day which is three (3) Business Days
prior to the date on which the requested Loans were to have been made,
in the case of Eurodollar Loans, or two (2) Business Days prior to the
date on which the requested Loans were to have been made, in the case
of Certificate of Deposit Loans, or not later than 9:00 a.m., New York
City time, on the date on which the requested Loans were to have been
made, in the case of Term Federal Funds Loans, Fixed Rate Loans or
Alternate Base Rate Loans, by giving notice (by telephone (confirmed
in writing promptly thereafter) or telecopier) to the Administrative
Agent (which notice the Administrative Agent shall transmit to each of
the Banks otherwise required to participate in the requested Loans as
soon as practicable thereafter) irrevocably withdraw such notice of
Borrowing.
(ii) The Company may request one or more of the non-Affected
Banks to take over all (but not part) of each or any Affected Bank's
then outstanding Loan(s) and to assume all (but not part) of each or
any Affected Bank's Revolving Credit Commitment and obligations
hereunder. If one or more Banks shall so agree in writing (in this
Section 2.08(e)(ii), in Section 2.12(c)(i) hereof, in Section 2.13(i)
hereof and in Section 4.03(b)(ii) hereof, collectively called the
"ASSENTING BANKS" and individually called an "ASSENTING BANK") with
respect to an Affected Bank, (x) the Revolving Credit Commitment of
each Assenting Bank and the obligations of such Assenting Bank under
this Agreement shall be increased by its respective Allocable Share of
the Revolving Credit Commitment and of the obligations of such
Affected Bank under this Agreement, and (y) each Assenting Bank shall
make Loans to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal amount equal to
the outstanding principal amount of the Loan(s) of such Affected Bank,
on a date mutually acceptable to the Assenting Banks and the Company.
The proceeds of such Loans, together with funds of the Company, shall
be used to prepay the Loan(s) of such Affected Bank, together with all
interest accrued thereon and all other amounts owing to such Affected
Bank hereunder (including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon such assumption
by the Assenting Bank and prepayment by the Company, such Affected
Bank
37
shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations hereunder (except as provided in Section
2.12(b), Section 10.02 and Section 10.07 hereof).
(iii) Upon notice (by telephone (confirmed in writing promptly
thereafter) or telecopier) to the Administrative Agent (which shall
advise each Bank thereof as soon as practicable thereafter), the
Company may terminate the obligations of the Banks to make or maintain
Loans which result in the Affected Banks making a demand for
compensation pursuant to this Section 2.08 and, in such event, the
Company shall refinance all such Loans with Loans which, at the time
of such refinancing, would not result in such Banks making such demand
for compensation, such refinancing to be conducted in the manner
contemplated by and pursuant to Section 2.06 or Section 4.02 hereof.
(iv) (A) The Company may designate one or more Replacement
Lenders mutually acceptable to the Company and the Administrative
Agent (whose consent shall not be unreasonably withheld) to assume the
Revolving Credit Commitment and the obligations of any such Affected
Bank hereunder, and to purchase the outstanding Notes of such Affected
Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such
Affected Bank, for a purchase price equal to the outstanding principal
amount of the Loan(s) of such Affected Bank plus all interest accrued
and unpaid thereon and all other amounts owing to such Affected Bank
hereunder (including the amount which would be payable to such
Affected Bank pursuant to Section 3.04 hereof if the purchase of its
Notes constituted a prepayment thereof contemplated by clause (ii) of
the first sentence of Section 3.04 hereof), and upon such assumption
and purchase by the Replacement Lenders, each such Replacement Lender
shall be deemed to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations hereunder (except
as provided in Section 2.12(b), Section 10.02 and Section 10.07
hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably
withheld) which shall upon a date mutually agreed upon by the Company
and such Replacement Lenders assume the Revolving Credit Commitment
and the obligations of such Affected Bank under this Agreement and
shall upon such date make Loans to the Company in an aggregate
principal amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such Loans, together
with funds of the Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to Section 3.04
38
hereof in connection with such prepayment), and, upon such Replacement
Lenders making such Loans and such prepayment by the Company, such
Replacement Lenders shall be deemed to be "Banks" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for
purposes of this Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.12(b), Section 10.02 and
Section 10.07 hereof). Each such Replacement Lender shall execute and
deliver to the Administrative Agent such documentation to evidence its
status as a "Bank" hereunder as shall be mutually acceptable to the
Company and the Administrative Agent. The effectiveness of each
Replacement Lender's Revolving Credit Commitment, the making of such
Loans by such Replacement Lenders and the prepayment by the Company of
the Loan(s) of such Affected Bank shall be deemed to have occurred
simultaneously for all purposes hereof.
(f) If in respect of any Interest Period for a Eurodollar Loan made by
a Bank under Section 2.01 hereof such Bank shall be required to maintain
reserves against "Eurocurrency liabilities" under Regulation D, the Company
shall pay to such Bank in accordance with this Section 2.08(f) an additional
amount representing such Bank's actual costs, if any, incurred during such
Interest Period as a result of the applicability of the foregoing reserves to
such Eurodollar Loan, which amount (i) shall be based on the effective rate at
which such reserve requirements are imposed on such Bank for such Interest
Period, (ii) shall be allocated to the Company in no proportionately greater
amount than such Bank would allocate such costs to its other borrowers of
Eurodollars to which such costs are applicable if the provisions of this Section
2.08(f) applied to all such borrowers, and (iii) in any event shall not exceed
the product of the following for each day of such Interest Period:
(A) the principal amount of the Eurodollar Loan outstanding on
such day made by such Bank to which such Interest Period relates; and
(B) a percentage equal to (x) the result obtained by dividing the
Eurodollar Rate applicable to such Eurodollar Loan by the number one
minus the maximum rate (expressed as a decimal) at which such reserve
requirements are imposed by the Board on such date, minus (y) the
Eurodollar Rate applicable to such Eurodollar Loan; and
(C) a fraction the numerator of which is one and the denominator
of which is 360.
To be entitled to compensation pursuant to this Section 2.08(f) in respect of
any Interest Period, such Bank must notify the Company of its demand for such
compensation within 30 days after the end of such Interest Period. A certificate
of such Bank setting forth in reasonable detail the basis for and the
calculation of such amount necessary to compensate such Bank pursuant to this
Section 2.08(f) shall be delivered to the Company with such notice and shall be
conclusive absent manifest error. In no event shall the Company be obligated to
make any payment to any Bank pursuant to this Section 2.08(f)
39
if such payment would result in a duplication of payments pursuant to this
Section 2.08(f) and any other provision of this Section 2.08.
(g) In the event that any Affected Bank shall have given notice that
it is entitled to claim compensation pursuant to paragraph (f) of this Section
2.08, the Company may exercise any one or more of the options set forth in
Section 2.08(e) hereof.
(h) In the event that the Company shall take any of the actions
contemplated by Section 2.08(e)(ii) or Section 2.08(e)(iv) hereof, the Company
shall provide replacement Notes to any Assenting Bank or any Replacement Lender,
as the case may be, to reflect the identity of, and/or the outstanding amount of
the Loans of, and/or the principal amount of such Notes issued to, such
Assenting Bank or such Replacement Lender, and Schedule I and Schedule II hereto
shall be deemed amended to reflect the addition of such Replacement Lender and
any increases or decreases in the Revolving Credit Commitments of the Affected
Banks and the Assenting Banks, as the case may be.
SECTION 2.09. PRO RATA TREATMENT. Except as permitted under Section
2.06, Section 2.08, Section 2.12, Section 2.13 and Section 4.03 hereof, (i) each
payment by the Company on account of any fees pursuant to Section 2.07 hereof
shall be made PRO RATA in accordance with the respective amounts due and owing,
(ii) each payment by the Company on account of principal of and interest on the
Loans shall be made PRO RATA according to the respective amounts due and owing,
and (iii) each prepayment on account of principal of the Loans shall be applied
to the Revolving Credit Loans and the Competitive Loans, as directed by the
Company, PRO RATA according to the respective amounts outstanding.
SECTION 2.10. PAYMENTS. Except for payments made directly to a Bank or
Banks or to the Issuing Bank under other provisions of this Agreement, the
Company shall make each payment hereunder and under any instrument delivered
hereunder not later than 12:00 noon (New York City time) on the day when due, in
Dollars, to the Administrative Agent at its offices at One Liberty Plaza, New
York, New York 10006, for the account of the Banks, in immediately available
funds (or to the Issuing Bank, in the case of fees payable to it). The
Administrative Agent shall promptly distribute to each Bank its proper share of
each payment so received.
SECTION 2.11. PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be due on a day which is not a Business Day, then such
payment shall be made on the next succeeding Business Day (unless, with respect
to a payment relating to a Eurodollar Loan, such day would fall in another
calendar month, in which event payment shall be made on the next preceding
Business Day).
SECTION 2.12. NET PAYMENTS. (a) All payments under this Agreement
shall be made without setoff or counterclaim and in such amounts as may be
necessary in order that all such payments (after deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by any government or any political
subdivision or taxing authority thereof
40
(herein collectively called the "Taxes") other than any Taxes on or measured by
the net income, net worth or shareholders' capital of a Bank or a Participant or
the Issuing Bank pursuant to the income tax laws of the jurisdiction where such
Bank's or the Issuing Bank's principal or lending office is located or where
such Participant's principal or participating office is located) shall not be
less than the amounts otherwise specified to be paid under this Agreement and
the Notes; PROVIDED that if any Bank or any Participant or the Issuing Bank
fails to comply with the applicable provisions of Section 10.06(g) hereof or
paragraph (b) of this Section 2.12, as the case may be, then, all such payments
to such Bank or to any Bank which has sold a participation pursuant to Section
10.06(b) hereof or to the Issuing Bank shall be net of any amounts the Company
is required to withhold under applicable law. For a Bank or the Issuing Bank to
be entitled to compensation pursuant to this Section 2.12 (i) in the case of
compensation for United States Federal income or withholding Taxes in respect of
any Interest Period, such Bank or the Issuing Bank must notify the Company
within 30 days after the end of such Interest Period and (ii) in the case of
compensation for any United States Tax other than a United States Federal income
or withholding Tax in respect of any Interest Period, such Bank or the Issuing
Bank must notify the Company within 30 days after such Bank or the Issuing Bank
receives a written claim for such Tax from any government, political subdivision
or taxing authority with respect to such Interest Period. A certificate as to
any additional amounts payable to any Bank or the Issuing Bank under this
Section 2.12 submitted to the Company by such Bank or the Issuing Bank shall
show in reasonable detail the amount payable and the calculations used to
determine such amount and shall be conclusive and binding upon the parties
hereto, in the absence of manifest error. With respect to each deduction or
withholding for or on account of any Taxes, the Company shall promptly (and in
any event not later than 45 days thereafter) furnish to each Bank or the Issuing
Bank such certificates, receipts and other documents as may be required (in the
reasonable judgment of such Bank or the Issuing Bank) to establish any tax
credit to which such Bank or the Issuing Bank may be entitled.
(b) Each Bank that is not incorporated under the laws of the United
States or any State thereof, and the Issuing Bank if it is not incorporated
under the laws of the United States or any State thereof, agrees to file with
the Administrative Agent and the Company, in duplicate, (i) on or before the
later of (A) the Effective Date and (B) the date such Bank or the Issuing Bank
becomes a Bank or the Issuing Bank under this Agreement and (ii) thereafter, for
each third taxable year of such Bank or the Issuing Bank during which interest
or fees arising under this Agreement are received, unless not legally able to do
so as a result of a change in United States income tax law enacted, or treaty
promulgated, after the date specified in the preceding clause (i), on or prior
to the immediately following due date of any payment by the Company hereunder
(or at any other time as required under United States income tax law), a
properly completed and executed copy of either Internal Revenue Service Form
W-8BEN or Internal Revenue Service Form W-8ECI or Internal Revenue Service Form
W-9 and any additional form necessary for claiming complete exemption from
United States withholding taxes (or such other form as is required to claim
complete exemption from United States withholding taxes), if and as provided by
the Code, regulations or other pronouncements of the United States Internal
Revenue Service, and the Bank or the Issuing Bank warrants to the Company that
the form so filed will be true and complete; PROVIDED that such
41
Bank's or the Issuing Bank's failure to complete and execute such Form W-8BEN,
or Form W-8ECI or Form W-9, as the case may be, and any such additional form (or
any successor form or forms) shall not relieve the Company of any of its
obligations under this Agreement, except as otherwise provided in this Section
2.12. In the event that the Company is required, or has been notified by the
relevant taxing authority that it will be required, to either withhold or make
payment of Taxes with respect to any payments to be made by the Company under
this Agreement or the Notes to any transferor Bank and such requirement or
notice arises as a result of the sale of a participation by such transferor Bank
pursuant to Section 10.06(b) hereof, such transferor Bank shall, upon request by
the Company, accompanied by a certificate setting forth in reasonable detail the
basis for such request, provide to the Company copies of all tax forms required
to be provided to such transferor Bank pursuant to Section 10.06(g) hereof by
the Participant which purchased such participation. The obligation of each
transferor Bank to provide to the Company such tax forms shall survive the
termination of this Agreement or, if earlier, the termination of the Revolving
Credit Commitment of such transferor Bank.
(c) In the event that any Affected Bank shall have given notice that
it is entitled to claim compensation pursuant to this Section 2.12, the Company
may at any time thereafter exercise any one or more of the following options:
(i) The Company may request one or more of the non-Affected Banks
to take over all (but not part) of each or any Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and obligations hereunder.
If one or more Banks shall so agree in writing with respect to an
Affected Bank, (x) the Revolving Credit Commitment of each Assenting
Bank and the obligations of such Assenting Bank under this Agreement
shall be increased by its respective Allocable Share of the Revolving
Credit Commitment and of the obligations of such Affected Bank under
this Agreement, and (y) each Assenting Bank shall make Loans to the
Company, according to such Assenting Bank's respective Allocable
Share, in an aggregate principal amount equal to the outstanding
principal amount of the Loan(s) of such Affected Bank, on a date
mutually acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank, together with all
interest accrued thereon, and all other amounts owing to such Affected
Bank hereunder (including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon such assumption
by the Assenting Banks and prepayment by the Company, such Affected
Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.12(b), Section 10.02 and Section 10.07 hereof).
(ii) (A) The Company may designate one or more Replacement
Lenders mutually acceptable to the Company and the Administrative
Agent (whose consent shall not be unreasonably withheld) to assume the
42
Revolving Credit Commitment and the obligations of any such Affected
Bank hereunder, and to purchase the outstanding Notes of such Affected
Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such
Affected Bank, for a purchase price equal to the outstanding principal
amount of the Loan(s) of such Affected Bank plus all interest accrued
thereon and all other amounts owing to such Affected Bank hereunder
(including the amount which would be payable to such Affected Bank
pursuant to Section 3.04 hereof if the purchase of its Notes
constituted a prepayment thereof contemplated by clause (ii) of the
first sentence of Section 3.04 hereof), and upon such assumption and
purchase by the Replacement Lenders, each such Replacement Lender
shall be declared to be a "Bank" for purposes of this Agreement and
such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations hereunder (except
as provided in Section 2.12(b), Section 10.02 and Section 10.07
hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably
withheld) which shall upon a date mutually agreed upon by the Company
and such Replacement Lenders assume the Revolving Credit Commitment
and the obligations of such Affected Bank under this Agreement and
shall upon such date make Loans to the Company in an aggregate
principal amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such Loans, together
with funds of the Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to Section 3.04 hereof in connection with
such prepayment), and, upon such Replacement Lenders making such Loans
and such prepayment by the Company, such Replacement Lenders shall be
deemed to be "Banks" for purposes of this Agreement and such Affected
Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.12(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative
Agent such documentation to evidence its status as a "Bank" hereunder
as shall be mutually acceptable to the Company and the Administrative
Agent. The effectiveness of each Replacement Lender's Revolving Credit
Commitment, the making of such Loans by such Replacement Lenders and
the prepayment by the Company of the Loan(s) of such Affected Bank
shall be deemed to have occurred simultaneously for all purposes
hereof.
(iii) If any such claim for compensation relates to Loans then
being requested by the Company pursuant to a notice of Borrowing as
provided in Article II hereof, the Company may, not later than 12:00
noon,
43
New York City time, on the day which is three (3) Business Days prior
to the date on which the requested Loans were to have been made, in
the case of Eurodollar Loans, or two (2) Business Days prior to the
date on which the requested Loans were to have been made, in the case
of Certificate of Deposit Loans, or not later than 9:00 a.m., New York
City time, on the date on which the requested Loans were to have been
made, in the case of Term Federal Funds Loans, Fixed Rate Loans or
Alternate Base Rate Loans, by giving notice (by telephone (confirmed
in writing promptly thereafter) or telecopier) to the Administrative
Agent (which notice the Administrative Agent shall transmit to each of
the Banks otherwise required to participate in the requested Loans as
soon as practicable thereafter) irrevocably withdraw such notice of
Borrowing.
(d) The Company shall provide replacement Notes to any Assenting Bank
or any Replacement Lender, as the case may be, to reflect the identity of,
and/or the outstanding amount of the Loans of, and/or the principal amount of
such Notes issued to, such Assenting Bank or such Replacement Lender, and
Schedule I and Schedule II hereto shall be deemed amended to reflect the
addition of such Replacement Lender and any increases or decreases in the
Revolving Credit Commitments of the Affected Banks and the Assenting Banks, as
the case may be.
SECTION 2.13. FAILED AND CREDIT-IMPAIRED BANKS. If (a) a Bank shall be
adjudged a bankrupt or insolvent, or if a receiver of a Bank or of its property
shall be appointed, or if any public officer shall take charge or control of a
Bank or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or if a Bank shall default in respect of its
obligation to make Loans hereunder, (b) any of Moody's, S&P or Thomson
BankWatch, Inc. shall assign a rating to the senior, unsecured,
non-credit-enhanced, long-term indebtedness for borrowed money of a Bank which
shall be classified by such rating agency as below investment grade, or, in the
case of Thomson BankWatch, Inc., such rating shall be below C/D, or (c) the
Company shall deliver to the Administrative Agent a notice stating that, as to
any Bank which has senior, unsecured, non-credit-enhanced, long-term
indebtedness for borrowed money which is not rated by any of the rating agencies
referred to in the preceding clause (b), that it reasonably believes such Bank
will become subject to any of the events referred to in clause (a) above or
become unable to perform its obligations as a Bank hereunder, then the Company
may at any time thereafter, subject to applicable law, exercise any one or more
of the following options:
(i) The Company may request one or more of the non-Affected Banks
to take over all (but not part) of each or any Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each or any
Affected Bank's Revolving Credit Commitment and obligations hereunder.
If one or more Banks shall so agree in writing with respect to an
Affected Bank, (x) the Revolving Credit Commitment of each Assenting
Bank and the obligations of such Assenting Bank under this Agreement
shall be increased by its respective Allocable Share of the Revolving
Credit Commitment and of the obligations of such Affected
44
Bank under this Agreement, and (y) each Assenting Bank shall make
Loans to the Company, according to such Assenting Bank's respective
Allocable Share, in an aggregate principal amount equal to the
outstanding principal amount of the Loan(s) of such Affected Bank, on
a date mutually acceptable to the Assenting Banks and the Company. The
proceeds of such Loans, together with funds of the Company, shall be
used to prepay the Loan(s) of such Affected Bank, together with all
interest accrued thereon and all other amounts owing to such Affected
Bank hereunder (excluding, in the case of an event referred to in
clause (a) of this Section 2.13, any amounts payable pursuant to
Section 3.04 hereof in connection with such prepayment), and, upon
such assumption by the Assenting Bank and prepayment by the Company,
such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations hereunder (except
as provided in Section 2.12(b), Section 10.02 and Section 10.07
hereof).
(ii) (A) The Company may designate one or more Replacement
Lenders mutually acceptable to the Company and the Administrative
Agent (whose consent shall not be unreasonably withheld) to assume the
Revolving Credit Commitment and the obligations of any such Affected
Bank hereunder, and to purchase the outstanding Notes of such Affected
Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such
Affected Bank, for a purchase price equal to the outstanding principal
amount of the Loan(s) of such Affected Bank plus all interest accrued
and unpaid thereon and all other amounts owing to such Affected Bank
hereunder (including the amount which would be payable to such
Affected Bank pursuant to Section 3.04 hereof if the purchase of its
Notes constituted a prepayment thereof contemplated by clause (ii) of
the first sentence of Section 3.04 hereof), and upon such assumption
and purchase by the Replacement Lenders, each such Replacement Lender
shall be deemed to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations hereunder (except
as provided in Section 2.12(b), Section 10.02 and Section 10.07
hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably
withheld) which shall upon a date mutually agreed upon by the Company
and such Replacement Lenders assume the Revolving Credit Commitment
and the obligations of such Affected Bank under this Agreement and
shall upon such date make Loans to the Company in an aggregate
principal amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such Loans, together
with funds of the Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued thereon and all
other amounts owing to such Affected
45
Bank hereunder (including any amounts payable pursuant to Section 3.04
hereof in connection with such prepayment), and, upon such Replacement
Lenders making such Loans and such prepayment by the Company, such
Replacement Lenders shall be deemed to be "Banks" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for
purposes of this Agreement and shall no longer have any obligations
hereunder (except as provided in Section 2.12(b), Section 10.02 and
Section 10.07 hereof). Each such Replacement Lender shall execute and
deliver to the Administrative Agent such documentation to evidence its
status as a "Bank" hereunder as shall be mutually acceptable to the
Company and the Administrative Agent. The effectiveness of each
Replacement Lender's Revolving Credit Commitment, the making of such
Loans by such Replacement Lenders and the prepayment by the Company of
the Loan(s) of such Affected Bank shall be deemed to have occurred
simultaneously for all purposes hereof.
The Company shall provide replacement Notes to any Assenting Bank or any
Replacement Lender, as the case may be, to reflect the identity of, and/or the
outstanding amount of the Loans of, and/or the principal amount of such Notes
issued to, such Assenting Bank or such Replacement Lender, and Schedule I and
Schedule II hereto shall be deemed amended to reflect the addition of such
Replacement Lender and any increases or decreases in the Revolving Credit
Commitments of the Affected Banks and the Assenting Banks, as the case may be.
ARTICLE III
INTEREST PROVISIONS
SECTION 3.01. INTEREST ON LOANS. (a) Subject to the provisions of
Section 3.02 hereof, each Eurodollar Loan shall bear interest at a rate per
annum (computed on the basis of the actual number of days elapsed over a year of
360 days) equal to the Eurodollar Rate for the Interest Period in effect for
such Loan plus (i) in the case of each Competitive Loan, the Margin specified by
a Bank with respect to such Loan in its Competitive Bid submitted pursuant to
Section 2.02(c) hereof, and (ii) in the case of each Revolving Credit Loan, the
Applicable Margin. Interest on each Eurodollar Loan shall be payable on each
Interest Payment Date applicable thereto.
(b) Subject to the provisions of Section 3.02 hereof, each Certificate
of Deposit Loan shall bear interest at a rate per annum (computed on the basis
of the actual number of days elapsed over a year of 360 days) equal to the
Certificate of Deposit Rate for the Interest Period in effect for such Loan plus
(i) in the case of each Competitive Loan, the Margin specified by a Bank with
respect to such Loan in its Competitive Bid submitted pursuant to Section
2.02(c) hereof, and (ii) in the case of each Revolving Credit Loan, the
Applicable Margin. Interest on each Certificate of Deposit Loan shall be payable
on each Interest Payment Date applicable thereto.
46
(c) Subject to the provisions of Section 3.02 hereof, each Alternate
Base Rate Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed (i) over a year of 365 or 366 days, as the
case may be, if the Alternate Base Rate is based on the Prime Rate, and (ii)
over a year of 360 days if the Alternate Base Rate is based on the Base CD Rate
or the Federal Funds Effective Rate) equal to the Alternate Base Rate plus the
Applicable Margin. Interest on each Alternate Base Rate Loan shall be payable on
each Interest Payment Date applicable thereto.
(d) Subject to the provisions of Section 3.02 hereof, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Competitive Bid Bank making such Loan and accepted by
the Company pursuant to Section 2.02 hereof. Interest on each Fixed Rate Loan
shall be payable on each Interest Payment Date applicable thereto.
(e) Subject to the provisions of Section 3.02 hereof, each Term
Federal Funds Loan shall bear interest at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
Term Federal Funds Rate for the Interest Period in effect for such Loan plus the
Applicable Margin. Interest on each Term Federal Funds Loan shall be payable on
each Interest Payment Date applicable thereto.
(f) Interest on each Loan shall accrue from and including the first
day of the Interest Period with respect to such Loan to but excluding the last
day of such Interest Period.
SECTION 3.02. INTEREST ON OVERDUE AMOUNTS. If the Company shall
default in the payment when due of the principal of any Loan or of any other
amount due hereunder (other than any amount not paid as a result of a Bank
Funding Default for the period from which such Bank Funding Default commences to
the date on which the failure to pay such amount due would become an Event of
Default), the Company shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount from the date such amount
shall have become due up to (but not including) the date of actual payment
thereof (x) for other than Eurodollar Loans, accruing on a daily basis, at a
rate per annum (computed on the basis of a year of 365 or 366 days, as the case
may be, if the Alternate Base Rate is based on the Prime Rate or on the basis of
a year of 360 days if the Alternate Base Rate is based on the Base CD Rate or
the Federal Funds Effective Rate) which is equal to the sum of (i) the Alternate
Base Rate from time to time in effect, plus (ii) the Applicable Margin plus
(iii) two percent (2%) per annum, or (y) for Eurodollar Loans, accruing on a
daily basis at a rate per annum (computed on the basis of a year of 360 days)
which is two and one half percent (2-1/2%) per annum in excess of the rate
determined by the Administrative Agent two (2) Business Days prior to the
beginning of periods of one day, one week, one month, two months or three months
(as the Administrative Agent shall select in its sole discretion from time to
time during the continuation of such default), the first of which periods shall
commence on the date such amount shall have become due, as the rate at which the
Administrative Agent is offered deposits in Dollars as of 11:00 a.m., London
time, by prime banks in the
47
London Interbank Eurodollar market for delivery on the first day of any such
period and for the approximate number of days comprised therein, in an amount
comparable to the aggregate amount due. If the Company shall default in the
payment when due of the principal of any Loan or of any other amount due
hereunder as a result of a Bank Funding Default, for the period from which such
Bank Funding Default commences to the date on which the failure to pay such
amount due would become an Event of Default or, if earlier, to (but not
including) the date of actual payment thereof, the Company shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount at a rate per annum equal to (x) for other than Eurodollar Loans, the
Alternate Base Rate (computed on the basis of a year of 365 or 366 days, as the
case may be, if the Alternate Base Rate is based on the Prime Rate or on the
basis of a year of 360 days if the Alternate Base Rate is based on the Base CD
Rate or the Federal Funds Effective Rate), or (y) for any Eurodollar Loan, until
the last day of the Interest Period therefor, at the Interest Rate applicable to
such Eurodollar Loan determined in accordance with the provisions of Section
3.01(a) hereof, and thereafter, in accordance with clause (x) above; PROVIDED,
HOWEVER, that interest payable by the Company for the period set forth above on
defaulted amounts not paid to a Bank as a result of such Bank's Bank Funding
Default shall be payable at a rate per annum equal to the lesser of (i) the
Interest Rate that would have been applicable to the Loan or Loans that were the
subject of such Bank's Bank Funding Default, and (ii) the applicable Interest
Rate set forth in clause (x) or (y) above, as the case may be.
SECTION 3.03. INABILITY TO DETERMINE CERTIFICATE OF DEPOSIT RATE, TERM
FEDERAL FUNDS RATE OR EURODOLLAR RATE. In the event, and on each occasion, that
the Company has accepted a Competitive Bid with respect to a Certificate of
Deposit Loan and, on or before the date on which the Certificate of Deposit Rate
for the Interest Period relating to such Loan is to be determined, the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the parties hereto in the absence of manifest error)
that such Certificate of Deposit Rate cannot be determined as a result of the
inability of the Reference Banks to obtain sufficient bids in accordance with
the terms of the definition of Fixed Certificate of Deposit Rate, the
Administrative Agent shall immediately give notice of such determination by
telephone (confirmed by telecopier) to the Company and the Competitive Bid Bank
which submitted such Competitive Bid. In the event of any such determination,
(i) any such request by the Company for a Competitive Bid with respect to a
Certificate of Deposit Loan shall be deemed to be a request for an Alternate
Base Rate Loan, and (ii) the Company may, not later than 9:00 a.m., New York
City time, on the date on which such Loans were to have been made, by giving
notice (by telephone (confirmed in writing promptly thereafter) or telecopier)
to the Administrative Agent (which notice the Administrative Agent shall
transmit to each of the Banks as soon as practicable thereafter) irrevocably
withdraw such notice of Borrowing. Each such determination shall be conclusive
and binding upon the parties hereto in the absence of manifest error.
(b) In the event, and on each occasion, that the Company has submitted
a Revolving Credit Borrowing Request for a Certificate of Deposit Loan or a Term
Federal Funds Loan and, on or before the date on which the Certificate of
Deposit Rate or Term Federal Funds Rate, as the case may be, for such Loan is to
be determined, the
48
Administrative Agent shall have determined that such Certificate of Deposit Rate
or Term Federal Funds Rate, as the case may be, cannot be determined as a result
of the inability of the Reference Banks to obtain sufficient bids or quotations,
respectively, in accordance with the terms of the definition of Fixed
Certificate of Deposit Rate or Term Federal Funds Rate, as the case may be, or
the Required Banks shall determine that the Certificate of Deposit Rate or Term
Federal Funds Rate, as the case may be, for such Loan will not adequately and
fairly reflect the cost to such Banks of making or maintaining such Loan during
such Interest Period, the Administrative Agent, or, as the case may be, the
Required Banks, acting through the Administrative Agent, shall forthwith give
notice thereof (by telephone (confirmed in writing promptly thereafter) or
telecopier) to the Company. In the event of any such determination, (i) any such
request by the Company for a Certificate of Deposit Loan or Term Federal Funds
Loan, as the case may be, shall be deemed to be a request for an Alternate Base
Rate Loan, and (ii) the Company may, not later than 9:00 a.m., New York City
time, on the date on which such Loans were to have been made, by giving notice
(by telephone (confirmed in writing promptly thereafter) or telecopier) to the
Administrative Agent (which notice the Administrative Agent shall transmit to
each of the Banks as soon as practicable thereafter) irrevocably withdraw such
notice of Borrowing. Each such determination shall be conclusive and binding
upon the parties hereto in the absence of manifest error.
(c) In the event, and on each occasion, that the Company has accepted
a Competitive Bid with respect to a Eurodollar Loan and, on or before the date
on which the Eurodollar Rate for the Interest Period relating to such Loan is to
be determined, the Administrative Agent shall have determined that by reason of
circumstances affecting the London Interbank Eurodollar market or affecting the
position of any Reference Bank in such market, adequate and fair means do not
exist for ascertaining the Interest Rate applicable to such Loan during such
Interest Period, then, and in any such event, the Competitive Bid Request
submitted by the Company with respect to such Loan and the Competitive Bid
submitted by the Competitive Bid Bank and accepted by the Company with respect
to such Loan shall both be deemed to be rescinded and of no force and effect
whatsoever. The Administrative Agent shall immediately give notice of such
determination by telephone (confirmed by telecopier) to the Company and to such
Competitive Bid Bank. Each such determination by the Administrative Agent shall
be conclusive and binding upon the parties hereto in the absence of manifest
error.
(d) In the event, and on each occasion, that the Company has submitted
a Revolving Credit Borrowing Request for a Eurodollar Loan and, on or before the
date on which the Eurodollar Rate for the Interest Period relating to such Loan
is to be determined, the Administrative Agent shall have determined that by
reason of circumstances affecting the London Interbank Eurodollar market or
affecting the position of any Reference Bank in such market, adequate and fair
means do not exist for ascertaining the Interest Rate applicable to such Loan
during such Interest Period, then, and in any such event, such Revolving Credit
Borrowing Request shall be deemed to be rescinded and of no force and effect
whatsoever. The Administrative Agent shall immediately give notice of such
determination by telephone (confirmed by telecopier) to the Company and the
Banks. Each such determination by the Administrative Agent shall be conclusive
and binding upon the parties hereto in the absence of manifest error.
49
SECTION 3.04. INDEMNITY. The Company shall compensate each Bank, upon
written request by such Bank (which request shall set forth the basis for
requesting such amounts), for all reasonable losses and expenses in respect of
any interest paid by such Bank (or its lending branch or affiliate) to lenders
of funds borrowed by it or deposited with it to make or maintain its Loans
(other than Alternate Base Rate Loans) which such Bank (or its lending branch or
affiliate) may sustain, to the extent not otherwise compensated for hereunder
and not mitigated by the reemployment of such funds: (i) if for any reason
(other than a default by such Bank) a Borrowing of any Loan does not occur on a
date specified therefor in a notice of Borrowing given pursuant to Article II
hereof, (ii) if any prepayment (other than a prepayment under Section 2.13(i)
resulting from an event referred to in clause (a) of Section 2.13 hereof) or
repayment of its Loans (other than Alternate Base Rate Loans) occurs on a date
which is not the expiration date of the relevant Interest Period, (iii) if any
prepayment of its Loans (other than Alternate Base Rate Loans) is not made on
any date specified in a notice of prepayment given by the Company (regardless of
whether such notice may be revoked under Section 4.01 and is revoked in
accordance therewith), or (iv) as a consequence of any default by the Company
under this Agreement. Without prejudice to the foregoing, the Company shall
indemnify each Bank against any loss or expense which such Bank (or its lending
branch or affiliate) may sustain or incur as a consequence of the default by the
Company in payment of principal of or interest on any Loan (other than any
Alternate Base Rate Loan), or any part thereof, or of any amount due under this
Agreement, including, but not limited to, any premium or penalty incurred by
such Bank (or its lending branch or affiliate), in respect of funds borrowed by
it or deposited with it for the purpose of making or maintaining such Loan
(other than any Alternate Base Rate Loan), as determined by such Bank in the
exercise of its sole discretion. A certificate as to any such loss or expense
(including calculations, in reasonable detail, showing how such Bank computed
such loss or expense) shall be promptly submitted by such Bank to the Company
(with a copy to the Administrative Agent) and shall, in the absence of manifest
error, be conclusive and binding as to the amount thereof.
SECTION 3.05. RATE DETERMINATION CONCLUSIVE. The applicable Interest
Rate for each Interest Period with respect to each Loan (other than any Fixed
Rate Loan) shall be determined by the Administrative Agent and shall be
conclusive and, subject to Section 3.03 and Section 4.03 hereof, binding upon
the parties hereto, in the absence of manifest error. The Administrative Agent
shall, at the request in writing of the Company or any Bank, deliver to the
Company or such Bank a statement showing the computations used by the
Administrative Agent in determining any Interest Rate in respect of the Loans
payable by the Company.
ARTICLE IV
REDUCTION OR TERMINATION OF THE
REVOLVING CREDIT COMMITMENTS AND PREPAYMENTS
50
SECTION 4.01. REDUCTION OR TERMINATION OF THE TOTAL COMMITMENT. The
Company may, from time to time on at least five (5) Business Days' prior notice
(by telephone (confirmed in writing promptly thereafter) or telecopier) received
by the Administrative Agent (which shall advise each Bank thereof as soon as
practicable thereafter), permanently reduce the Total Commitment (such reduction
shall reduce each Bank's Revolving Credit Commitment ratably according to its
respective Proportional Share of the amount of such reduction and Schedule I
hereto shall be deemed amended to reflect the reduction in such Revolving Credit
Commitments) but only upon (a) repayment of that portion of the aggregate unpaid
principal amount of all Revolving Credit Loans which, together with the
aggregate principal amount of all Competitive Loans then outstanding and the LC
Exposure, exceeds the amount of the Total Commitment as so reduced (such
repayment to be applied to each Bank's Revolving Credit Loans in the same
proportion as its Revolving Credit Commitment is reduced), and (b) payment to
the Administrative Agent, for the ratable account of the Banks, of the Facility
Fees on the portion of the Total Commitment so reduced which have accrued
through the date of such reduction; PROVIDED, HOWEVER, the Company may not so
reduce the Total Commitment at any time to an amount less than the aggregate
principal amount of all Competitive Loans then outstanding and the LC Exposure.
Any such reduction shall be in an aggregate amount of $50,000,000 or an integral
multiple of $10,000,000 in excess of $50,000,000. The Company may at any time,
on like notice, terminate the Total Commitment (and each Bank's Revolving Credit
Commitment) upon payment in full of all Loans and the accrued interest thereon
and the Facility Fees accrued through the date of such termination; PROVIDED,
HOWEVER, that the Company may not terminate the Total Commitment at any time
that Competitive Loans are then outstanding. Each notice delivered by the
Company pursuant to this Section 4.01 shall be irrevocable; PROVIDED that a
notice of termination of the Total Commitment delivered by the Company may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
SECTION 4.02. PREPAYMENTS. (a) The Company may from time to time, upon
at least (i) two (2) Business Days' prior notice (in the event such notice
pertains to Domestic Loans) or (ii) three (3) Business Days' prior notice (in
the event such notice pertains to Eurodollar Loans) (by telephone (confirmed in
writing promptly thereafter) or telecopier) received by the Administrative Agent
(prior to 12:00 noon, New York City time, in the event such notice pertains to
Domestic Loans) (which shall advise each Bank thereof as soon as practicable
thereafter), prepay any Revolving Credit Borrowing in whole or in part, without,
except as provided in Section 3.04 hereof, premium or penalty (such prepayment
to be PRO RATA to the Banks according to the respective unpaid principal amounts
of the Revolving Credit Notes held by them); PROVIDED, HOWEVER, that each such
prepayment shall be in an aggregate amount of $50,000,000 or an integral
multiple of $10,000,000 in excess of $50,000,000. Except as provided in Section
2.08(e)(ii), Section 2.08(e)(iii), Section 2.12(c)(i), Section 2.13(i), Section
4.03(a), Section 4.03(b)(ii) or Section 4.03(b)(iii) hereof, the Company shall
not have the right to prepay any Competitive Borrowing.
51
(b) Each notice of prepayment shall specify the Borrowing to be
prepaid, the prepayment date and the aggregate principal to be prepaid, and
shall be irrevocable; PROVIDED that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Total Commitment as
contemplated by Section 4.01, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 4.01. All
prepayments under this Section 4.02 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of prepayment.
SECTION 4.03. REQUIRED TERMINATION OF THE REVOLVING CREDIT COMMITMENTS
AND PREPAYMENT. (a) In the event that at any time any Affected Bank shall have
reasonably determined in good faith (which determination shall be conclusive and
binding upon the parties hereto, in the absence of manifest error) that the
making or continuation of its Revolving Credit Commitment to make Eurodollar
Loans or its Eurodollar Loans have become unlawful under any applicable law,
governmental rule, requirement, regulation, guideline or order, then, and in any
such event, such Affected Bank shall as soon as practicable give notice (by
telephone (confirmed in writing promptly thereafter) or telecopier) to the
Company and to the Administrative Agent (which shall transmit such notice to
each of the Banks as soon as practicable thereafter), of such determination.
Thereupon, the Revolving Credit Commitment of such Affected Bank and the
obligation of such Affected Bank to make or maintain its Loan(s) shall be
terminated and the Company shall forthwith, and in any event no later than the
earlier of (x) the next succeeding Interest Payment Date with respect to such
Loan(s) or (y) ten (10) days after receipt of notice from such Affected Bank
under this Section 4.03(a), prepay the outstanding Loan(s) of such Affected Bank
without premium or penalty, together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder (including any amounts
payable pursuant to Section 3.04 hereof in connection with such prepayment).
(b) In lieu of prepaying the Loan(s) of the Affected Bank as required
by Section 4.03(a) hereof, the Company may exercise any one or more of the
following options:
(i) If such determination by an Affected Bank relates to
Eurodollar Loans then being requested by the Company pursuant to a
notice of Borrowing as provided in Sections 2.01, 2.02 or 2.06 hereof,
the Company may, not later than 9:00 a.m., New York City time, on the
day which is three (3) Business Days prior to the date on which such
Loans were to have been made by giving notice (by telephone (confirmed
in writing promptly thereafter) or telecopier) to the Administrative
Agent (which shall transmit such notice to each of the Banks otherwise
required to participate in such Loans as soon as practicable
thereafter) irrevocably withdraw such notice of Borrowing.
(ii) The Company may request one or more of the non-Affected
Banks to take over all (but not part) of each Affected Bank's then
outstanding Loan(s) and to assume all (but not part) of each Affected
52
Bank's Revolving Credit Commitment and obligations hereunder. If one
or more Banks shall so agree in writing with respect to an Affected
Bank, (x) the Revolving Credit Commitment of each Assenting Bank and
the obligations of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the Revolving Credit
Commitment and of the obligations of such Affected Bank under this
Agreement, and (y) each Assenting Bank shall make Loans to the
Company, according to such Assenting Bank's respective Allocable
Share, in an aggregate principal amount equal to the outstanding
principal amount of the Loan(s) of such Affected Bank, on a date
mutually acceptable to the Assenting Banks, such Affected Bank and the
Company. The proceeds of such Loans, together with funds of the
Company, shall be used to prepay the Loan(s) of such Affected Bank,
together with all interest accrued thereon, and all other amounts
owing to such Affected Bank hereunder (including any amounts payable
pursuant to Section 3.04 hereof in connection with such prepayment),
and, upon such assumption by the Assenting Banks and prepayment by the
Company, such Affected Bank shall cease to be a "Bank" for purposes of
this Agreement and shall no longer have any obligations hereunder
(except as provided in Section 2.12(b), Section 10.02 and Section
10.07 hereof). Any such prepayment shall occur prior to the time any
prepayment pursuant to Section 4.03(a) hereof is required to be made.
(iii) Upon notice (by telephone (confirmed in writing promptly
thereafter) or telecopier) to the Administrative Agent (which shall
advise each Bank thereof as soon as practicable thereafter), the
Company may terminate the obligations of the Banks to make or maintain
Loans as Eurodollar Loans and, in such event, the Company shall, prior
to the time any prepayment pursuant to Section 4.03(a) hereof is
required to be made, refinance all of the Eurodollar Loans with
Domestic Loans, or prepay such Eurodollar Loans, in the manner
contemplated by and pursuant to Section 2.06 or Section 4.02 hereof,
respectively.
(iv) (A) The Company may designate one or more Replacement
Lenders mutually acceptable to the Company and the Administrative
Agent (whose consent shall not be unreasonably withheld) to assume the
Revolving Credit Commitment and the obligations of each such Affected
Bank hereunder, and to purchase, prior to the time any prepayment
pursuant to Section 4.03(a) hereof is required to be made, the
outstanding Notes of such Affected Bank and such Affected Bank's
rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank, for a purchase price
equal to the outstanding principal amount of the Loan(s) of such
Affected Bank plus all interest accrued thereon and all other amounts
owing to such Affected Bank hereunder (including the amount which
would be payable to such Affected Bank pursuant to Section 3.04 hereof
if the purchase of its Notes constituted a prepayment thereof
contemplated by clause (ii) of the first
53
sentence of Section 3.04 hereof), and upon such assumption and
purchase by the Replacement Lenders, each such Replacement Lender
shall be deemed to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations hereunder (except
as provided in Section 2.12(b), Section 10.02 and Section 10.07
hereof).
(B) As an alternative, the Company may designate one or more
Replacement Lenders mutually acceptable to the Company and the
Administrative Agent (whose consent shall not be unreasonably
withheld) which shall upon a date mutually agreed upon by the Company
and such Replacement Lenders assume the Revolving Credit Commitment
and the obligations of such Affected Bank under this Agreement and
shall upon such date make Loans to the Company in an aggregate
principal amount equal to the outstanding principal amount of the
Loan(s) of such Affected Bank. The proceeds of such Loans, together
with funds of the Company, shall be used to prepay the Loan(s) of such
Affected Bank, together with all interest accrued thereon and all
other amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to Section 3.04 hereof in connection with
such prepayment), and, upon such Replacement Lenders making such Loans
and such prepayment by the Company, such Replacement Lenders shall be
deemed to be "Banks" for purposes of this Agreement and such Affected
Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations hereunder (except as provided in
Section 2.12(b), Section 10.02 and Section 10.07 hereof). Each such
Replacement Lender shall execute and deliver to the Administrative
Agent such documentation to evidence its status as a "Bank" hereunder
as shall be mutually acceptable to the Company and the Administrative
Agent. The effectiveness of each Replacement Lender's Revolving Credit
Commitment, the making of such Loans by such Replacement Lenders and
the prepayment by the Company of the Loan(s) of such Affected Bank
shall be deemed to have occurred simultaneously for all purposes
hereof.
The Company shall provide replacement Notes to any Assenting Bank or any
Replacement Lender, as the case may be, to reflect the identity of, and/or the
outstanding amount of the Loans of, and/or the principal amount of such Notes
issued to, such Assenting Bank or such Replacement Lender, and Schedule I and
Schedule II hereto shall be deemed amended to reflect the addition of such
Replacement Lender and any increases or decreases in the Revolving Credit
Commitments of the Affected Banks and the Assenting Banks, as the case may be.
54
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Banks, the Issuing Bank, the Agents and
the Managing Agents as follows:
(a) COMPANY'S ORGANIZATION; CORPORATE POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware; the Company is duly qualified or licensed and in
good standing as a foreign corporation authorized to do business in each other
jurisdiction where, because of the nature of its activities or properties, such
qualification or licensing is required, except for such jurisdictions where the
failure to be so qualified or licensed will not materially adversely affect the
financial condition, business or operations of the Company and its Consolidated
Subsidiaries, taken as a whole, or prevent the enforcement of contracts to which
the Company is a party; and the Company has all requisite corporate power and
authority (i) to own its assets and to carry on the business in which it is
engaged, (ii) to execute, deliver and perform its obligations under this
Agreement and the Notes, (iii) to borrow in the manner and for the purpose
contemplated by this Agreement, (iv) to issue the Notes in the manner and for
the purpose contemplated by this Agreement, and (v) to execute, deliver and
perform its obligations under all other agreements and instruments executed and
delivered by the Company pursuant to or in connection with this Agreement.
(b) DOMESTIC SPECIFIED SUBSIDIARIES; ORGANIZATION; CORPORATE POWER. As
of the Effective Date, each domestic Specified Subsidiary is a corporation or
other entity (as the case may be) duly incorporated or formed, validly existing
and in good standing under the laws of the state or jurisdiction of its
incorporation or formation; and, as of the Effective Date, each domestic
Specified Subsidiary has all requisite corporate power and authority to own its
assets and to carry on the business in which it is engaged.
(c) COMPANY'S CORPORATE AUTHORITY; NO CONFLICT. The execution and
delivery by the Company of this Agreement and the Notes, the performance by the
Company of its obligations under this Agreement and the Notes, the Borrowings by
the Company in the manner and for the purpose contemplated by this Agreement,
the issuance by the Company of the Notes in the manner and for the purpose
contemplated by this Agreement, the execution and delivery by the Company of all
other agreements and instruments which shall have been executed and delivered by
the Company pursuant hereto or in connection herewith, and the performance by
the Company of its obligations under all other agreements and instruments which
shall have been executed and delivered by the Company pursuant hereto or in
connection herewith, have been duly authorized by all necessary corporate action
(including any necessary stockholder action) on the part of the Company, and do
not and will not (i) violate any provision of any law, rule or regulation
(including, without limitation, Regulation U and Regulation X) presently in
effect having applicability to the Company (or any Specified Subsidiary), or of
any order, writ, judgment, decree, determination or award (which is,
individually or in the
55
aggregate, material to the consolidated financial condition, business or
operations of the Company and its Consolidated Subsidiaries) presently in effect
having applicability to the Company (or any Specified Subsidiary) or of the
charter or by-laws of the Company (or any Specified Subsidiary), or (ii) subject
to the Company's compliance with any applicable covenants pertaining to its
incurrence of unsecured indebtedness, result in a breach of or constitute a
default under any indenture or loan or credit agreement, or result in a breach
of or constitute a default under any other agreement or instrument (which is,
individually or in the aggregate, material to the consolidated financial
condition, business or operations of the Company and its Consolidated
Subsidiaries), to which the Company or any Specified Subsidiary is a party or by
which the Company or any Specified Subsidiary or its respective properties may
be bound or affected, or (iii) result in, or require, the creation or imposition
of any Lien of any nature upon or with respect to any of the properties now
owned or hereafter acquired by the Company (other than any right of setoff or
banker's lien or attachment that any Bank or other holder of a Note may have
under applicable law), and the Company is not in default under or in violation
of its charter or by-laws.
(d) VALID AND BINDING OBLIGATIONS OF THE COMPANY. This Agreement
constitutes, and (when executed and delivered by the Company) the Notes and each
other agreement or instrument executed and delivered by the Company pursuant
hereto or in connection herewith will each constitute, the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance
or injunctive relief (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(e) COMPANY'S FINANCIAL CONDITION. The Company's audited consolidated
financial statements as at December 31, 2003, copies of which have been
furnished to each Bank, have been prepared in conformity with generally accepted
accounting principles applied on a basis consistent with that of the preceding
fiscal year and fairly present the consolidated financial condition of the
Company and its Consolidated Subsidiaries as at such date and the results of
their operations for the period then ended. As of the Effective Date, since
December 31, 2003, there has been no material adverse change in the consolidated
financial condition, business or operations of the Company and its Consolidated
Subsidiaries, except as set forth in the Company's annual report on Form 10-K
for the year ended December 31, 2003, or its quarterly report on Form 10-Q for
the quarter ended March 31, 2004, in each case to the Securities and Exchange
Commission, (copies of each of which have been furnished to each Bank) or as
disclosed in writing to the Banks prior to the Effective Date.
(f) LITIGATION WITH RESPECT TO THE COMPANY OR ITS SUBSIDIARIES. As of
the Effective Date, no litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental proceedings are pending or, to
the knowledge of the Company, threatened against the Company or any Subsidiary
of the Company which are
56
likely (to the extent not covered by insurance) materially and adversely to
affect the consolidated financial condition of the Company and its Consolidated
Subsidiaries or materially to impair the Company's ability to perform its
obligations under this Agreement and the Notes, except as set forth in the
Company's annual report on Form 10-K for the year ended December 31, 2003, or
its quarterly report on Form 10-Q for the quarter ended March 31, 2004, to the
Securities and Exchange Commission, or as disclosed in writing to the Banks
prior to the Effective Date.
(g) REGULATORY APPROVALS WITH RESPECT TO THIS AGREEMENT. No
authorization, consent, approval, license or formal exemption from, nor any
filing, declaration or registration with, any court, governmental agency or
regulatory authority (Federal, state, local or foreign), including, without
limitation, the Securities and Exchange Commission, or with any securities
exchange, is or will be required in connection with the execution and delivery
by the Company of this Agreement or the Notes, the performance by the Company of
its obligations under this Agreement and the Notes, the Borrowings by the
Company in the manner and for the purpose contemplated by this Agreement, or the
issuance by the Company of the Notes in the manner and for the purpose
contemplated by this Agreement (except for such authorizations, consents,
approvals, licenses, exemptions, filings, declarations or registrations, if any,
which may be required to be obtained or made subsequent to the Effective Date,
all of which, if then required, will have been duly obtained or made on or
before each date on which the foregoing representation and warranty shall be
made, deemed made or reaffirmed, as the case may be, will be sufficient for all
purposes thereof and will be in full force and effect on each such date).
(h) ERISA. As of the Effective Date, no material liability to the PBGC
has been, or is expected by the Company or any Related Person to the Company to
be, incurred by the Company or any Related Person to the Company. No Reportable
Event which presents a material risk of termination of any Plan maintained by
the Company or a Related Person to the Company has occurred and is continuing at
the Effective Date. No Plan maintained by the Company or a Related Person to the
Company had an Accumulated Funding Deficiency, whether or not waived, as of the
last day of the most recent fiscal year of such Plan ending prior to the
Effective Date. Neither the Company nor any Related Person to the Company has
engaged in a Prohibited Transaction prior to the Effective Date.
(i) INVESTMENT COMPANY ACT. The Company is not an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(j) PUBLIC UTILITY HOLDING COMPANY ACT. The Company is not a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
(k) REGULATION U; REGULATION X. The Company is not engaged
principally, or as one of its important activities, in the business of
extending, or arranging
57
for the extension of, credit for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U, and no part of the proceeds of
any Loan will be used for any purpose which would be in violation of such
regulations or in violation of Regulation X.
(l) COMPANY'S TAX RETURNS AND TAX LIABILITY. The Company and its
Subsidiaries, except for any Subsidiary (x) incorporated under the laws of any
jurisdiction other than the United States of America or any State thereof or the
District of Columbia or (y) having substantially all of its properties and
assets or conducting substantially all of its business outside the United States
of America and having assets immaterial in comparison to the assets of the
Company and its Consolidated Subsidiaries, have filed all tax returns required
to be filed by them and have paid or provided adequate reserves or obtained
adequate indemnity for the payment of all taxes and assessments payable by them
which have become due, other than (i) those not yet delinquent, (ii) those the
nonpayment of which would not be reasonably likely to result in a material
adverse effect on the consolidated financial condition of the Company and its
Consolidated Subsidiaries, (iii) those being contested in good faith and (iv)
those involving foreign taxes and assessments which are involved in a good faith
dispute.
(m) ENVIRONMENTAL AND PUBLIC AND EMPLOYEE HEALTH AND SAFETY MATTERS.
As of the Effective Date, the Company and each Subsidiary has complied with all
applicable Federal, state, and other laws, rules and regulations relating to
environmental pollution or to environmental regulation or control or to public
or employee health or safety, except (i) to the extent that the failure to so
comply would not be reasonably likely to result in a material and adverse effect
on the consolidated financial condition of the Company and its Consolidated
Subsidiaries or (ii) as set forth in the Company's annual report on Form 10-K
for the year ended December 31, 2003, or its quarterly report on Form 10-Q for
the quarter ended March 31, 2004, to the Securities and Exchange Commission, or
as disclosed in writing to the Banks prior to the Effective Date. As of the
Effective Date, the Company's and the Subsidiaries' facilities do not manage any
hazardous wastes, hazardous substances, hazardous materials, toxic substances or
toxic pollutants regulated under the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or public or employee health and safety, in violation of
any such law, or any rules or regulations promulgated pursuant thereto, except
(A) for violations that would not be reasonably likely to result in a material
and adverse effect on the consolidated financial condition of the Company and
its Consolidated Subsidiaries or (B) as set forth in the Company's annual report
on Form 10-K for the year ended December 31, 2003, or its quarterly report on
Form 10-Q for the quarter ended March 31, 2004, to the Securities and Exchange
Commission, or as disclosed in writing to the Banks prior to the Effective Date.
As of the Effective Date, the Company is aware of no events, conditions or
circumstances involving environmental pollution or contamination or public or
employee health or safety, in each case applicable to it or its Subsidiaries,
that would be reasonably likely to result in a material and adverse effect on
the consolidated financial condition of the Company and its Consolidated
Subsidiaries except as set forth in the Company's
58
annual report on Form 10-K for the year ended December 31, 2003, or its
quarterly report on Form 10-Q for the quarter ended March 31, 2004, to the
Securities and Exchange Commission, or as disclosed in writing to the Banks
prior to the Effective Date.
(n) TRUE AND COMPLETE DISCLOSURE. To the best of the Company's
knowledge and belief, all factual information heretofore or contemporaneously
furnished by or on behalf of the Company or any Subsidiary of the Company to any
Bank, the Issuing Bank, any Agent or any Managing Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all other such factual information hereafter furnished by or on behalf of the
Company or any Subsidiary of the Company to any Bank, the Issuing Bank, any
Agent or any Managing Agent will be, true and accurate (taken as a whole) on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as
a whole) not misleading at such time.
ARTICLE VI
COVENANTS
SECTION 6.01. AFFIRMATIVE COVENANTS OF THE COMPANY. So long as any
Loan or LC Disbursement shall remain unpaid, any Bank shall have any Revolving
Credit Commitment hereunder or any Letter of Credit shall remain outstanding,
the Company will, unless the Required Banks shall have otherwise consented in
writing:
(a) Reports, Certificates and Other Information. Furnish to each Bank:
(i) INTERIM REPORTS. Within 15 days after the date by which the
Company is required to file any periodic report containing the
financial statements referred to in this Section 6.01(a)(i) with the
Securities and Exchange Commission for each of the first three
quarterly fiscal periods in each fiscal year of the Company, a
consolidated balance sheet of the Company as at the end of such period
(setting forth in comparative form the consolidated figures as of the
end of the previous fiscal year), the related consolidated statement
of operations for such period and (in the case of the second and third
quarterly periods) for the period from the beginning of the current
fiscal year to the end of such quarterly period (setting forth in each
case in comparative form the consolidated figures for the
corresponding periods of the previous fiscal year) and the related
consolidated statement of cash flows for the period from the beginning
of the current fiscal year to the end of such quarterly period
(setting forth in comparative form the consolidated figures from the
corresponding period of the previous fiscal year), all in reasonable
detail and certified, subject to changes resulting from year-end audit
adjustments, by a financial officer of the Company (it being
understood that the delivery of (A) the Company's Form 10-Q setting
forth such statements for each such period and (B) a certification by
a financial officer of the Company to the effect
59
that such statements fairly present in all material respects the
financial condition and results of operations of the Company on a
consolidated basis (subject to changes resulting from year-end audit
adjustments) shall satisfy the requirements of this Section
6.01(a)(i)).
(ii) ANNUAL REPORTS. Within 15 days after the date by which the
Company is required to file any periodic report containing the
financial statements referred to in this Section 6.01(a)(ii) with the
Securities and Exchange Commission for each fiscal year of the
Company, a consolidated balance sheet of the Company as at the end of
such year, and the related consolidated statements of operations and
cash flows for such year, setting forth in each case in comparative
form the consolidated figures for the previous fiscal year,
accompanied by the opinion thereon of independent public accountants
of recognized national standing selected by the Company, which opinion
shall be prepared in accordance with generally accepted auditing
standards relating to reporting and shall be based upon an audit by
such accountants of the relevant accounts (it being understood that
the delivery of the Company's Form 10-K setting forth such statements
for such year shall satisfy the requirements of this Section
6.01(a)(ii)).
(iii) OFFICERS' CERTIFICATES. Within 30 days after each date by
which the Company is required to file financial statements referred to
in Section 6.01(a)(i) or 6.01(a)(ii) hereof with the Securities and
Exchange Commission, an Officers' Certificate (A) stating that the
signers have reviewed the relevant terms of this Agreement and of the
Notes and have made, or caused to be made under their supervision, a
review of the transactions and condition of the corporation or
corporations covered by such financial statements during the
accounting period in question, and that such review has not disclosed
the existence during such accounting period, and that the signers do
not otherwise have knowledge of the existence as at the date of such
Officers' Certificate, of any Event of Default or Unmatured Event of
Default, or, if any such Event of Default or Unmatured Event of
Default existed or exists, specifying the nature and period of
existence thereof and what action the Company has taken or is taking
or proposes to take with respect thereto and (B) demonstrating in
reasonable detail compliance during such accounting period with
Sections 6.02(b), 6.02(c) and 6.02(d) hereof.
(iv) ACCOUNTANTS' CERTIFICATES. Within 30 days after each date by
which the Company is required to file financial statements referred to
in Section 6.01(a)(ii) hereof with the Securities and Exchange
Commission, a certificate signed by the independent public accountants
reporting thereon (A) briefly setting forth the scope of their
examination (which shall include a review of the Notes, of this
Section 6.01(a) and of Sections 6.01(b), 6.01(e), and 6.02 (other than
Section 6.02(f)) hereof), (B) stating whether or not their examination
has disclosed the existence,
60
during the fiscal year covered by such financial statements, of any
Event of Default or Unmatured Event of Default and, if their
examination has disclosed such an Event of Default or Unmatured Event
of Default, specifying the nature and period of existence thereof, and
(C) stating that they have examined the Officers' Certificate
delivered therewith pursuant to Section 6.01(a)(iii) hereof.
(v) REPORTS TO SEC AND TO STOCKHOLDERS. Promptly upon their
becoming publicly available, copies of all financial statements,
reports, notices and proxy statements sent by the Company to its
stockholders, and of all regular and periodic reports filed by the
Company or any of its Specified Subsidiaries with the Securities and
Exchange Commission or any governmental authority succeeding to any of
its functions, which in each case have not been delivered under
paragraph (a)(i) or (a)(ii) of this Section 6.01.
(vi) OFFICERS' CERTIFICATES AS TO STATUS OF EXCEPTED
SUBSIDIARIES. (A) Promptly after the designation of a Subsidiary of
the Company as an Excepted Subsidiary or the withdrawal of such
designation, an Officers' Certificate setting forth the name of the
Subsidiary and whether it is being designated as, or withdrawn from
designation as, an Excepted Subsidiary, and (B) as soon as practicable
after the designation of a Subsidiary of the Company as an Excepted
Subsidiary or the withdrawal of such designation, or, at the option of
the Company, together with the next delivery of any financial
statements to the Banks pursuant to Section 6.01(a)(i) or Section
6.01(a)(ii) hereof, an Officers' Certificate setting forth in
reasonable detail, and certifying the correctness of, all facts and
computations required in order to establish that such designation or
withdrawal of designation is permitted in accordance with this
Agreement, and listing all Subsidiaries of the Company that are
designated as Excepted Subsidiaries at such time.
(vii) OFFICERS' CERTIFICATES AS TO STATUS OF PRINCIPAL
SUBSIDIARIES. As soon as practicable after the determination that a
Person which shall have become a Subsidiary of the Company after
December 31, 2003, is a Principal Subsidiary or, at the option of the
Company, together with the next delivery of any financial statements
to the Banks pursuant to Section 6.01(a)(i) or Section 6.01(a)(ii)
hereof, an Officers' Certificate confirming the same.
(viii) NOTICE OF DEFAULT. Forthwith upon any principal officer of
the Company obtaining knowledge of the occurrence of an Event of
Default or an Unmatured Event of Default, an Officers' Certificate
specifying the nature and period of existence thereof and what action
the Company has taken or is taking or proposes to take with respect
thereto.
(ix) USA PATRIOT ACT. Promptly following a request therefor, all
61
documentation and other information that a Bank reasonably requests as
necessary in order for it to comply with its ongoing obligations under
applicable "know your customer" and anti-money laundering rules and
regulations, including the USA Patriot Act.
(x) OTHER INFORMATION. With reasonable promptness, such other
information and data with respect to the Company or any of its
Specified Subsidiaries as from time to time may be reasonably
requested by any Bank.
Information required to be delivered pursuant to this Section 6.01(a) shall be
deemed to have been delivered if such information, or one or more annual or
quarterly reports containing such information, shall have been posted by the
Administrative Agent on an IntraLinks or similar site to which the Banks have
been granted access or shall be available on the website of the Securities and
Exchange Commission at http://www.sec.gov (and a confirming electronic
correspondence shall have been delivered or caused to be delivered to the Banks
providing notice of such posting or availability); provided that the Company
shall deliver paper copies of such information to any Bank that requests such
delivery. Information required to be delivered pursuant to this Section 6.01(a)
may also be delivered by electronic communications pursuant to procedures
approved by the Administrative Agent.
(b) TAXES. Pay or provide adequate reserves or obtain adequate
indemnity for the payment of, and cause each Subsidiary to pay or provide
adequate reserves or obtain adequate indemnity for the payment of, all taxes and
assessments payable by it which become due, other than (i) those not yet
delinquent, (ii) those the nonpayment of which would not be reasonably likely to
result in a material adverse effect on the consolidated financial condition of
the Company and its Consolidated Subsidiaries, (iii) those being contested in
good faith and (iv) those involving foreign taxes and assessments which are
involved in a good faith dispute with respect to tax or other matters.
(c) PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to Section
6.02(a) hereof, do or cause to be done all things necessary to preserve and keep
in full force and effect the corporate existence and the rights (charter and
statutory) of the Company and each Specified Subsidiary; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or any Specified Subsidiary and that
the loss thereof is not disadvantageous in any material respect to the Banks
under this Agreement.
(d) INSPECTIONS; DISCUSSIONS. Permit any authorized representatives
designated by a Bank, at such Bank's expense, to make reasonable inspections of
any of the properties of the Company or any of its Specified Subsidiaries,
including its and their books of account, and to discuss its and their affairs,
finances and accounts with its and their officers, all at such reasonable times
and as often as may be reasonably requested by such Bank; PROVIDED that if
required by the Company, any such Bank shall, as a condition
62
to being permitted to make any such inspection, certify to the Company that the
same is being made solely in order to assist such Bank in evaluating its
extension of credit to the Company evidenced by the Notes.
(e) BOOKS AND RECORDS. Maintain, and cause each of its Consolidated
Subsidiaries to maintain, a system of accounting established and administered in
accordance with generally accepted accounting principles applied on a consistent
basis, and set aside, and cause each of its Consolidated Subsidiaries to set
aside, on its books all such proper reserves as shall be required by generally
accepted accounting principles.
(f) MAINTENANCE OF PROPERTIES. Cause all properties used or useful in
the conduct of its business or the business of a Specified Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, and cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section 6.01(f) shall prevent the
Company from discontinuing the operation or maintenance, or both the operation
and maintenance, of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Specified Subsidiary and not disadvantageous in any material
respect to the Banks under this Agreement.
(g) MAINTENANCE OF INSURANCE. Insure and keep insured, and cause each
Specified Subsidiary to insure and keep insured, with reputable insurance
companies, so much of its respective properties, to such an extent and against
such risk (including fire), as companies engaged in similar businesses and of
similar size customarily insure properties of a similar character; or, in lieu
thereof, in the case of itself or of any one or more of its Specified
Subsidiaries, maintain or cause to be maintained a system or systems of
self-insurance which will accord with the approved practices of companies owning
or operating properties of a similar character in maintaining such systems.
(h) COMPLIANCE WITH LAWS, ETC. Not violate any laws, rules,
regulations, or governmental orders to which it is subject (including any such
laws, rules, regulations or governmental orders relating to the protection of
the environment or to public or employee health or safety), which violation
would be reasonably likely to result in a material adverse effect on the
consolidated financial condition of the Company and its Consolidated
Subsidiaries; and not permit any Subsidiary of the Company to violate any laws,
rules, regulations, or governmental orders of Federal, state or local
governmental entities within the United States to which it is subject (including
any such laws, rules, regulations or governmental orders relating to the
protection of the environment or to public or employee health or safety), which
violation would be reasonably likely to result in a material adverse effect on
the consolidated financial condition of the Company and its Consolidated
Subsidiaries.
(i) DELIVERY OF CERTAIN DOCUMENTATION WITH RESPECT TO PLANS. (i) As
soon as possible and in any event within 30 days after it knows or has reason to
know
63
that, regarding any Plan with respect to the Company or a Related Person to the
Company, a Prohibited Transaction or a Reportable Event which presents a
material risk of termination of any Plan maintained by the Company or a Related
Person to the Company has occurred (whether or not the requirement for notice of
such Reportable Event has been waived by the PBGC), deliver to the Syndication
Agents and each Bank a certificate of a responsible officer of the Company
setting forth the details of such Prohibited Transaction or Reportable Event,
(ii) upon request of either Syndication Agent or any Bank made from time to time
after the occurrence of any such Prohibited Transaction or Reportable Event,
deliver to the Syndication Agents and each Bank a copy of the most recent
actuarial report and annual report completed with respect to any Plan maintained
by the Company or a Related Person to the Company, and (iii) as soon as
possible, and in any event within 10 days, after it knows or has reason to know
that any of the following have occurred with respect to any Plan maintained by
the Company or a Related Person to the Company: (A) any such Plan has been
terminated, (B) the Plan Sponsor intends to terminate any such Plan, (C) the
PBGC has instituted or will institute proceedings under Section 4042 of ERISA to
terminate any such Plan, or (D) the Company or any Related Person to the Company
withdraws from any such Plan, deliver to the Syndication Agents and each Bank a
written notice thereof. For purposes of this Section 6.01(i), the Company shall
be deemed to have knowledge of all facts known by the Plan Administrator of any
Plan or Employee Benefit Plan of which the Company or any Related Person to the
Company is the Plan Sponsor.
(j) CONTRIBUTIONS TO PLANS. Pay, and use its best efforts to cause
each Related Person with respect to the Company to pay, when due, all
contributions required to meet the minimum funding standards set forth in
Sections 302 through 308 of ERISA with respect to each Plan maintained by the
Company or a Related Person to the Company.
(k) USE OF PROCEEDS. Use the proceeds of the Loans for general
corporate purposes and not for any purpose which is in violation of Regulation U
or Regulation X.
SECTION 6.02. NEGATIVE COVENANTS OF THE COMPANY. So long as any Loan
or LC Disbursement shall remain unpaid, any Bank shall have any Revolving Credit
Commitment hereunder or any Letter of Credit shall remain outstanding, the
Company will not, without the prior written consent of the Required Banks:
(a) MERGERS, CONSOLIDATIONS, SALES. Consolidate with or merge into any
other corporation or convey or transfer its properties substantially as an
entirety to any Person, unless:
(i) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety, shall be a corporation organized and existing under the laws
of the United States or any state or the District of Columbia, and
shall expressly assume the due and punctual payment of the principal
of and interest on all the Notes and the performance of every covenant
of this
64
Agreement on the part of the Company to be performed or observed; and
(ii) immediately after giving effect to such transaction, no
Event of Default or Unmatured Event of Default shall have occurred and
be continuing.
Upon any consolidation or merger by the Company with or into any other
corporation, or any conveyance or transfer by the Company of its properties and
assets substantially as an entirety to any Person which is permitted by this
Section 6.02(a), the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Agreement with the same effect as if such successor
corporation had been named as the Company herein; and, in the event of such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "COMPANY" in the introduction to this Agreement or any
successor corporation which shall theretofore become such in the manner
described in this Section 6.02(a)) shall be discharged from all obligations and
covenants under this Agreement and the Notes and may be dissolved and
liquidated.
(b) LIMITATION ON LIENS. The Company will not, and will not permit any
Consolidated Subsidiary to, incur, create, assume, guarantee or otherwise become
liable with respect to any Secured Debt, unless (x) the Company secures or
causes such Consolidated Subsidiary to secure the Obligations equally and
ratably with (or prior to) such Secured Debt or (y) after giving effect thereto,
the aggregate amount of all Secured Debt, together with all Discounted Rental
Value in respect of sale and leaseback transactions involving Principal Domestic
Properties (excluding sale and leaseback transactions exempted from the
prohibition of Section 6.02(c)(i) hereof by Section 6.02(c)(ii) hereof, would
not exceed 10% of Consolidated Net Tangible Assets; PROVIDED, HOWEVER, that for
purposes of this Section there shall be excluded from Secured Debt all
Indebtedness secured by:
(i) Liens existing on April 1, 1998;
(ii) Liens existing on property of, or on any shares of stock or
Indebtedness of, any corporation at the time such corporation becomes
a Consolidated Subsidiary;
(iii) Liens in favor of the Company or a Consolidated Subsidiary;
(iv) Liens in favor of governmental bodies to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(v) Liens existing on property, shares of stock or Indebtedness
at the time of acquisition thereof (including acquisition through
merger or consolidation) or Liens (A) to secure the payment of all or
any part of the purchase price thereof or the cost of construction,
installation, renovation, improvement or development thereon or
thereof or (B) to secure any
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Indebtedness incurred prior to, at the time of, or within 360 days
after the later of the acquisition, the completion of such
construction, installation, renovation, improvement or development or
the commencement of full operation of such property or within 360 days
after the acquisition of such shares or Indebtedness for the purpose
of financing all or any part of the purchase price or cost thereof;
and
(vi) any extension, renewal or refunding of any Liens referred to
in the foregoing clauses (i) through (v), inclusive, PROVIDED,
HOWEVER, that (A) such extension, renewal or refunding Lien shall be
limited to all or part of the same property, shares of stock or
Indebtedness that secured the Lien extended, renewed or refunded (plus
improvements on or replacements of such property) and (B) such Secured
Debt at such time is not increased.
(c) RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS. (i) The Company
will not, and will not permit any Consolidated Subsidiary to, sell or transfer
any Principal Domestic Property, with the Company or any Consolidated Subsidiary
taking back a lease of such Principal Domestic Property, unless: (x) such
Principal Domestic Property is sold within 360 days from the date of acquisition
of such Principal Domestic Property or the date of the completion of
construction or commencement of full operations on such Principal Domestic
Property, whichever is later; or (y) the Company or such Consolidated Subsidiary
could subject such Principal Domestic Property to a Lien pursuant to Section
6.02(b) in an amount equal to the Discounted Rental Value with respect to such
sale and leaseback transaction without equally and ratably securing the
Securities; or (z) the Company or such Consolidated Subsidiary, within 120 days
after such sale, applies or causes to be applied to the retirement of its Funded
Debt an amount not less than the greater of (A) the net proceeds of the sale of
such Principal Domestic Property or (B) the fair value (as determined in any
manner approved by the Board of Directors) of such Principal Domestic Property;
PROVIDED, however, that the amount to be applied to the retirement of Funded
Debt of the Company or such Consolidated Subsidiary shall be reduced by the
principal amount of Funded Debt of the Company or such Consolidated Subsidiary
voluntarily retired by the Company or such Consolidated Subsidiary within 120
days after such sale.
(ii) The provisions of this clause (c) shall not prevent (i) a sale and
leaseback transaction between the Company and a Consolidated Subsidiary or
between Consolidated Subsidiaries or (ii) a sale or transfer of any Principal
Domestic Property with a lease for a period, including renewals, of not more
than 36 months.
(d) RESTRICTION ON CONSOLIDATED DEBT. Create, incur, assume, guarantee
or in any other way become liable for, or permit any Specified Subsidiary to
create, incur, assume, guarantee or in any other way become liable for, any
Indebtedness included in Consolidated Debt (other than in connection with any
renewal, extension or refunding of such Indebtedness which does not increase the
net amount of the Consolidated Debt outstanding), unless immediately thereafter,
and after giving effect thereto, the ratio of Consolidated Debt to Consolidated
Adjusted Tangible Net Worth would not exceed 2.6
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to 1.0.
(e) RESTRICTION ON DIVIDENDS FROM PRINCIPAL SUBSIDIARIES. Enter into
any agreement, or permit any Principal Subsidiary to enter into any agreement,
containing any provision which would limit or restrict the declaration or
payment of dividends by such Principal Subsidiary (i) if such agreement is an
agreement for borrowed money, to an amount which is less than 75% of such
Principal Subsidiary's cumulative net income, as determined in accordance with
generally accepted accounting principles and computed on a consolidated basis
for such Principal Subsidiary and its Subsidiaries, from the first day of the
fiscal year of such Principal Subsidiary in which such agreement is executed,
and (ii) if such agreement is not for borrowed money, to an amount which would
materially adversely affect the Company's ability to perform its obligations
under this Agreement and the Notes.
(f) CHANGE IN CONTROL. Permit any Person or group (within the meaning
of Rule 13d-5 of the Securities and Exchange Commission as in effect on the date
hereof) beneficially to own more than 50% (by number of votes) of the Voting
Securities of the Company unless such Voting Securities shall have been acquired
in a transaction or series of transactions approved prior to such acquisition by
the Board of Directors of the Company, and the directors so approving shall
include directors who constitute a majority of the Board of Directors and who
are persons either (i) who are directors on the date hereof or (ii) who were
nominated or elected by a majority of the directors who (A) are directors on the
date hereof or (B) shall have been nominated or elected as described in this
clause (ii).
ARTICLE VII
CONDITIONS OF CREDIT
The obligations of the Banks to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to (a) the Revolving Credit
Commitments having become effective as provided in Section 7.01 below and (b)
the satisfaction of the conditions set forth in Section 7.02 below.
SECTION 7.01. CONDITIONS TO EFFECTIVENESS OF COMMITMENTS. The
Revolving Credit Commitments shall become effective at such time as the
following conditions shall have been satisfied:
(a) The Company shall have executed and delivered to the Syndication
Agents for the account of each Bank a Competitive Note and Revolving Credit Note
(appropriately completed).
(b) State Certificates as to the Company:
(i) The Syndication Agents shall have received (with a photocopy
for each Bank) a copy of the Restated Certificate of Incorporation of
the Company and each amendment, if any, thereto (but not the
certificates of
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designation of preferences of preferred stock), certified by the
Secretary of State of the State of Delaware (as of a date shortly
before the Effective Date) as being true and correct copies of such
documents on file in the office of such Secretary of State.
(ii) The Syndication Agents shall have received (with a photocopy
for each Bank) the signed Certificate or Certificates of the Secretary
of State of the State of Delaware, in regular form (as of a date
shortly before the Effective Date), listing the Restated Certificate
of Incorporation of the Company and each amendment, if any, thereto,
together with the certificates of designation of preferences of
preferred stock and the certificates of merger or ownership, on file
in the office of such Secretary of State and stating that such
documents are the only charter documents of the Company on file in
such office filed on the date the Restated Certificate of
Incorporation was filed or thereafter and that the Company is duly
incorporated and in good standing in the State of Delaware and as to
the franchise tax status of the Company.
(c) The Syndication Agents and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed certificate of the
President or a Vice President and the Secretary or an Assistant Secretary of the
Company, dated the Effective Date and in the form of Exhibit F hereto
(appropriately completed), certifying, among other things, (i) a true and
correct copy of (x) resolutions adopted by the Board of Directors or Executive
Committee of the Board of Directors of the Company and (y) a certificate of the
Chief Financial Officer of the Company approving, on behalf of the Company, the
terms of this Agreement, authorizing the execution, delivery and performance by
the Company of this Agreement and the Notes and authorizing the issuance by the
Company of the Notes in the manner and for the purpose contemplated by this
Agreement, (ii) a true and correct copy of the By-laws of the Company as in
effect on the Effective Date, and (iii) the incumbency and specimen signatures
of officers of the Company executing (x) the documents specified in clause (i)
above, and (y) any other documents delivered to the Syndication Agents or the
Administrative Agent on the Effective Date.
(d) The Syndication Agents and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed opinion of Robert E.
Sawyer, Esq., Associate General Counsel of the Company and counsel to the
Company, dated the Effective Date and given upon the express instructions of the
Company, in the form of Exhibit H hereto, with such changes (if any) therein as
shall be acceptable to the Syndication Agents and special counsel to the Agents,
and as to such other matters as either Syndication Agent may reasonably request.
(e) The Syndication Agents and the Administrative Agent shall have
received (with a photocopy for each Bank) the signed opinion of Cravath, Swaine
& Moore LLP, special counsel to the Agents, dated the Effective Date, in the
form of Exhibit I hereto, with such changes (if any) therein as shall be
acceptable to the Syndication Agents.
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(f) The Syndication Agents and the Administrative Agent shall have
received (with a photocopy for each Bank) such other instruments and documents
as the Syndication Agents and the Administrative Agent may have reasonably
requested.
(g) The Existing Credit Agreements shall have been or shall
simultaneously be terminated and the principal of and interest accrued on all
loans outstanding thereunder and all fees accrued thereunder shall have been or
shall simultaneously be paid in full.
(h) Each of the Agents, the Managing Agents and the Company shall have
executed one or more counterparts of this Agreement.
(i) The Syndication Agents shall have received satisfactory evidence
that banks with Revolving Credit Commitments which cause the Total Commitment to
equal $1,500,000,000 have executed one or more counterparts of this Agreement or
of an Addendum.
SECTION 7.02. CONDITIONS PRECEDENT TO ALL EXTENSIONS OF CREDIT. The
obligation of each Bank to make each Loan, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, shall be subject to the fulfillment
at or prior to the time of the making of such Loan or the issuance, amendment,
renewal or extension off such Letter of Credit of each of the following further
conditions:
(a) The representations and warranties on the part of the Company
contained in this Agreement (other than the representations and warranties set
forth in the second sentence of Section 5.01(e) hereof and in Section 5.01(f)
hereof) shall be true and correct in all material respects at and as of the
Borrowing Date for such Loan (other than any Refinancing Loan) or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, as though made on and as of such date (except to the extent that
such representations and warranties expressly relate solely to an earlier date).
(b) Both before and after giving effect to such Loan (other than any
Refinancing Loan) or such issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, the Company shall be in compliance with the
requirements of any applicable covenants pertaining to its incurrence of
unsecured indebtedness.
(c) No Event of Default and no Unmatured Event of Default (other than
any Unmatured Event of Default which occurs as a result of a Bank Funding
Default) shall have occurred and be continuing on the Borrowing Date for such
Loan (other than any Refinancing Loan) or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, or would result
from the making of such Loan or the issuance, amendment, renewal or extension of
such Letter of Credit.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to be a representation and warranty by the Company on the
date of such Borrowing or such issuance, amendment, renewal or extension that
each of the conditions contained in this Section 7.02 has been satisfied.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. If any of the following events, acts
or occurrences (herein called an "EVENT OF DEFAULT") shall occur and be
continuing:
(a) default, and continuance thereof for three (3) Business Days or,
in the case of any default which results from a Bank Funding Default, five (5)
Business Days after the Company shall have been advised by the Syndication
Agents or the Administrative Agent of such Bank Funding Default, in the payment
when due of any amount owing by the Company hereunder or under the Notes in
respect of the principal of, or interest on, any Loan or in respect of any Fee
or any LC Disbursement; or
(b) any representation or warranty on the part of the Company
contained in this Agreement or in any certificate, letter or other writing or
instrument furnished or delivered to any Bank or either Syndication Agent or the
Administrative Agent pursuant hereto or in connection herewith, shall at any
time prove to have been incorrect in any material respect when made, deemed made
or reaffirmed, as the case may be; or
(c) the Company shall default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed or observed
under Section 6.02(b), 6.02(c), 6.02(d) or 6.02(e) hereof (other than a default
which would not have occurred or would not be continuing if the calculations
pursuant to the aforesaid Sections were made without giving effect to changes in
generally accepted accounting principles which require implementation after the
Effective Date); or
(d) the Company shall default in any material respect in the
performance or observance of any other term, covenant, condition or agreement on
its part to be performed or observed hereunder (and not constituting an Event of
Default under any other clause of this Section 8.01), and such default shall
continue unremedied for thirty (30) days after written notice thereof shall have
been given to the Company by either Syndication Agent, any Bank or the Issuing
Bank; or
(e) either (i) the Company or any Specified Subsidiary shall generally
fail to pay, or admit in writing its inability to pay, its debts as they become
due, or shall voluntarily commence any case or proceeding or file any petition
under any bankruptcy, insolvency or similar law or seeking dissolution,
liquidation or reorganization or the appointment of a receiver, trustee,
custodian or liquidator for itself or a substantial portion of its property,
assets or business or to effect a plan or other arrangement with its creditors
(except the voluntary dissolution, not under any bankruptcy or insolvency law,
of a Specified Subsidiary), or shall file any answer admitting the jurisdiction
of the court and the material allegations of any involuntary petition filed
against it in any bankruptcy, insolvency or similar case or proceeding, or shall
be adjudicated bankrupt, or shall make a general assignment for the benefit of
creditors, or shall consent to, or acquiesce in the appointment of, a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business, or (ii) corporate action shall be taken by the
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Company or any Specified Subsidiary for the purpose of effectuating any of the
foregoing; or
(f) involuntary proceedings or an involuntary petition shall be
commenced or filed against the Company or any Specified Subsidiary under any
bankruptcy, insolvency or similar law or seeking the dissolution, liquidation or
reorganization of the Company or such Specified Subsidiary (as the case may be)
or the appointment of a receiver, trustee, custodian or liquidator for the
Company or such Specified Subsidiary (as the case may be) or of a substantial
part of the property, assets or business of the Company or such Specified
Subsidiary (as the case may be), or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied against a substantial
part of the property, assets or business of the Company or any Specified
Subsidiary, and such proceedings or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded, within sixty (60) days after commencement,
filing or levy, as the case may be; or
(g) (i) the Company or any Specified Subsidiary shall default (as
principal or guarantor or other surety) in the payment when due (subject to any
applicable notice or grace period), whether at stated maturity or otherwise, of
any principal of or interest on (howsoever designated) any indebtedness for
borrowed money, whether such indebtedness now exists or shall hereafter be
created, or (ii) an event of default (of the Company or any Specified
Subsidiary) as defined in any mortgage, indenture or instrument under which
there may be issued, or by which there may be secured or evidenced, any
indebtedness for borrowed money of, or guaranteed by, the Company or any
Specified Subsidiary, whether such indebtedness now exists or shall hereafter be
created, shall occur and shall permit such indebtedness to become due and
payable prior to its stated maturity or due date; PROVIDED that no default under
this subsection (g) shall be deemed to exist as a result of a default or event
of default (as described in clause (i) or clause (ii) above) in respect of any
such indebtedness (1) which is payable solely out of the property or assets of a
partnership, joint venture or similar entity of which the Company or any
Specified Subsidiary is a participant (but which is not itself a Specified
Subsidiary), or is secured by a mortgage on, or other security interest in, the
property or assets owned or held by such entity, in either case without any
further recourse to or liability of the Company or any Specified Subsidiary as a
participant in such entity, (2)(x) in respect of which the only liability of the
Company or any Specified Subsidiary is under a guarantee of obligations under a
joint venture agreement in favor of a Person which is, or whose affiliate is,
party to such joint venture agreement and (y) owed to lenders which have agreed
that they will not have recourse to such guarantee, or (3) if the principal of
and interest on such indebtedness, when added to the principal of and interest
on all other such indebtedness then in default (exclusive of indebtedness under
clauses (1) and (2) above), does not exceed $150,000,000;
(h) with respect to any Plan (other than a Multiemployer Plan) as to
which the Company or any Related Person to the Company may have any liability,
there shall exist an unfunded current liability under the Code which is material
to the consolidated financial condition of the Company and its Consolidated
Subsidiaries, and (x) steps are
70
undertaken to terminate such Plan or (y) such Plan is terminated or (z) any
Reportable Event which presents a material risk of termination with respect to
such Plan shall occur;
then, and in any such event (x) if such event relates to the Company and is
described in clause (e) or clause (f) of this Section 8.01, (i) the Revolving
Credit Commitments shall immediately terminate, and (ii) all sums then owing by
the Company hereunder and under the Notes (and, in the event payment is to be
made on a day which is not the expiration date of the relevant Interest Period,
together with such amounts as will compensate each Bank in such Bank's sole
discretion for any losses incurred by it (or its lending branch or affiliate) in
respect of funds borrowed by it or deposited with it for the purpose of making
or maintaining its Loans hereunder) shall become and be immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Company, and (y) in the case of any
other such event, the Syndication Agents shall, at the direction of the Required
Banks, at the same or different times, take one or more of the following
actions: (i) declare the Revolving Credit Commitments to be terminated,
whereupon the Revolving Credit Commitments shall forthwith terminate, or (ii)
declare all sums then owing by the Company hereunder and under the Notes to be
forthwith due and payable, whereupon all such sums (and, in the event payment is
to be made on a day which is not the expiration date of the relevant Interest
Period, together with such amounts as will compensate each Bank in such Bank's
sole discretion for any losses incurred by it (or its lending branch or
affiliate) in respect of funds borrowed by it or deposited with it for the
purpose of making or maintaining its Loans hereunder) shall become and be
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived by the Company. Promptly
following the making of any such declaration, the Syndication Agents shall give
notice thereof to the Company and each Bank, but failure to do so or any delay
in so doing shall not impair the effect of such declaration.
ARTICLE IX
THE AGENTS, THE MANAGING AGENTS, THE BANKS AND THE ISSUING BANK
SECTION 9.01. APPOINTMENT AND POWERS OF THE ADMINISTRATIVE AGENT AND
THE SYNDICATION AGENTS. Each Bank and the Issuing Bank hereby irrevocably
designates and appoints each of the Syndication Agents and the Administrative
Agent its agent hereunder and hereby authorizes each such Agent to take such
action on its behalf and to exercise such rights, remedies, powers and
privileges hereunder as are specifically authorized to be exercised by such
Agent by the terms hereof, together with such rights, remedies, powers and
privileges as are reasonably incidental thereto. Each of the Syndication Agents
and the Administrative Agent may execute any of its respective duties as such
Agent hereunder by or through agents or attorneys-in-fact and shall be entitled
to retain counsel and to act in reliance upon the advice of such counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder, and shall not be liable for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent, the Syndication Agents,
72
the Documentation Agents and the Managing Agents shall have no duties or
responsibilities to any Bank or the Issuing Bank, except those expressly set
forth in this Agreement, or any fiduciary relationship with any Bank or the
Issuing Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent, either Syndication Agent, any Documentation
Agent or any Managing Agent.
SECTION 9.02. EXCULPATORY PROVISIONS. Neither any Bank, the Issuing
Bank, any Agent or Managing Agent, nor any of their respective directors,
officers or employees shall be liable for any action taken or omitted to be
taken by them hereunder or in connection herewith, except for their own gross
negligence or wilful misconduct; nor shall any Bank or the Issuing Bank, Agent
or Managing Agent be responsible in any manner to any Person for the
representations, warranties or other statements made by any other Person or for
the due execution or delivery, validity, effectiveness, genuineness, value,
sufficiency or enforceability against the Company or any other obligor of this
Agreement, the Notes or any other document furnished pursuant thereto or in
connection herewith. Neither the Agents, the Managing Agents nor any of their
respective officers shall be under any obligation to any Bank or the Issuing
Bank, to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Company or any of its Subsidiaries.
SECTION 9.03. RELIANCE BY THE ADMINISTRATIVE AGENT AND THE SYNDICATION
AGENTS. Each of the Syndication Agents and the Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by any such Agent.
Each such Agent may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with such Agent. Each of the Syndication Agents
and the Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other documents executed and
delivered in connection herewith unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Neither the Syndication Agents nor the Administrative Agent
shall be liable to any Bank or the Issuing Bank for acting, or refraining from
acting, under this Agreement or any other documents executed and delivered in
connection herewith in accordance with a request of the Required Banks, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Banks and all future holders of the Notes.
SECTION 9.04. NOTICE OF DEFAULT. Neither the Syndication Agents nor
the Administrative Agent shall be deemed to have knowledge or notice of the
occurrence
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of any Event of Default or Unmatured Event of Default hereunder unless it has
received notice from a Bank or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". In the event that either Syndication Agent
or the Administrative Agent receives such a notice, it shall give notice thereof
to the Banks and to such other Agent. The Syndication Agents shall take such
action with respect to such Event of Default or Unmatured Event of Default as
shall be reasonably directed by the Required Banks; PROVIDED, HOWEVER, that
unless and until the Syndication Agents shall have received such direction, the
Syndication Agents may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable in the best interests of
the Banks; PROVIDED FURTHER that the Syndication Agents shall have the right,
power and authority to take the affirmative action specified in Section 8.01
hereof only upon the direction of the Required Banks.
SECTION 9.05. INDEMNIFICATION. Each Bank hereby agrees, in the ratio
that such Bank's Revolving Credit Commitment from time to time bears to the
Total Commitment from time to time, to indemnify and hold harmless each Agent
and each Managing Agent, as agents hereunder, from and against any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, costs and expenses (including, without limitation,
attorneys' fees and expenses) incurred or suffered by such Agent or Managing
Agent in such capacity as a result of any action taken or omitted to be taken by
such Agent or Managing Agent in such capacity or otherwise incurred or suffered
by, made upon, or assessed against such Agent or Managing Agent in such
capacity; PROVIDED that no Bank shall be liable for any portion of any such
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, costs or expenses resulting from or attributable to
gross negligence or wilful misconduct on the part of such Agent or Managing
Agent or its officers, employees or agents. Without limiting the generality of
the foregoing, each Bank hereby agrees, in the ratio aforesaid, to reimburse
each Agent and Managing Agent promptly following its demand for any
out-of-pocket expenses (including, without limitation, attorneys' fees and
expenses) incurred by such Agent or Managing Agent hereunder and not reimbursed
to such Agent or Managing Agent by the Company. Each Bank's obligations under
this paragraph shall survive the termination of this Agreement or, if earlier,
the termination of the Revolving Credit Commitment of such Bank, and the
discharge of the Company's obligations hereunder.
SECTION 9.06. NONRELIANCE ON THE AGENTS, THE MANAGING AGENTS AND OTHER
BANKS. Each Bank expressly acknowledges that neither any Agent, any Managing
Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by any such Agent or Managing Agent hereafter taken, including
any review of the affairs of the Company, shall be deemed to constitute any
representation or warranty by such Agent or Managing Agent to any Bank. Each
Bank represents to each Agent and Managing Agent that it has, independently and
without reliance upon any Agent or Managing Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
74
financial and other condition and creditworthiness of the Company and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Bank also represents that it will, independently and without reliance upon any
Agent or Managing Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Company.
SECTION 9.07. THE AGENTS AND THE MANAGING AGENTS IN THEIR INDIVIDUAL
CAPACITIES. Each Agent and each Managing Agent and their affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Company as though such Agent or Managing Agent were not an Agent or Managing
Agent hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, each Agent and Managing Agent shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not an Agent or Managing Agent, and the terms "Bank" and "Banks" shall
include each Agent and Managing Agent in its individual capacity.
SECTION 9.08. EXCESS PAYMENTS. Except for payments made pursuant to
Section 2.08, Section 2.12, Section 2.13 or Section 4.03 hereof, if any Bank or
other holder of a Note shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on account of
principal of or interest on any Revolving Credit Note or any Letter of Credit
reimbursement obligation in excess of its PRO RATA share of payments and other
recoveries obtained by all Banks or holders on account of principal of and
interest on Revolving Credit Notes and Letter of Credit reimbursement
obligations then held by them, such Bank or other holder shall purchase from the
other Banks or holders such participations in the Revolving Credit Notes and
Letter of Credit reimbursement obligations held by them as shall be necessary to
cause such purchasing Bank or holder to share the excess payment or other
recovery ratably with each of them; PROVIDED, HOWEVER, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank or holder, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest. The Company
agrees that any Bank or holder so purchasing a participation from another Bank
or holder pursuant to this Section 9.08 may, to the fullest extent permitted by
law, exercise all its rights of payment (including offset) with respect to such
participation as fully as if such Bank or holder were the direct creditor of the
Company in the amount of such participation.
SECTION 9.09. OBLIGATIONS SEVERAL. The obligations of the Banks
hereunder are several, and neither any Bank nor the Agents or the Managing
Agents shall be responsible for the obligations of any other Person hereunder,
nor will the failure of any Bank to perform any of its obligations hereunder
relieve either Syndication Agent or the Administrative Agent or any other Bank
from the performance of its respective obligations hereunder. Nothing contained
in this Agreement, and no action taken by the Banks or any Agent or Managing
Agent pursuant hereto or in connection herewith or pursuant to or in connection
with the Notes, shall be deemed to constitute the Banks,
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together or with the Agents and the Managing Agents, a partnership, association,
joint venture or other entity.
SECTION 9.10. RESIGNATION BY ANY AGENT OR MANAGING AGENT. Any Agent
and any Managing Agent may resign as such at any time upon at least 30 days'
prior notice to the Company, the other Agents, the Banks and the Issuing Bank.
In the event of such resignation by a Syndication Agent or the Administrative
Agent, the Required Banks (with the consent of the Company (which shall not be
unreasonably withheld) in the event that there then does not exist an Event of
Default or Unmatured Event of Default), shall as promptly as practicable appoint
a successor Syndication Agent or Administrative Agent, as the case may be.
SECTION 9.11. TITLES. The Documentation Agents and Managing Agents, in
their capacities as such, shall have no rights, powers, duties, liabilities,
fiduciary relationships or obligations under this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NO WAIVER; MODIFICATIONS IN WRITING. No failure or
delay on the part of the Syndication Agents or the Administrative Agent or any
Bank or the Issuing Bank in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Syndication Agents, the Administrative Agent, any Bank or the
Issuing Bank at law, in equity or otherwise. Each request by the Company for any
amendment, modification, supplement, termination or waiver of or to any
provision of this Agreement shall be directed to the Syndication Agents, and no
such amendment, modification, supplement, termination or waiver of or to any
provision of this Agreement, nor consent to any departure by the Company
therefrom, shall be effective unless the same shall be in writing and signed by
the Company and by or on behalf of the Syndication Agents and the Required
Banks; PROVIDED, HOWEVER, that no such amendment, modification, supplement,
termination, waiver or consent, as the case may be, which has the effect of (x)
reducing the rate or amount, or extending the stated maturity or due date, of
any sum payable by the Company to any Bank hereunder or under such Bank's Notes,
or (y) except as provided in Section 2.08(e)(ii), Section 2.12(c)(i), Section
2.13(i), Section 4.03(b)(ii) and Section 10.06(c) hereof, increasing the amount,
or extending the stated expiration or termination date, of any Bank's Revolving
Credit Commitment hereunder, or (z) changing this Section 10.01, Section 10.06
or Section 10.07 hereof or the definitions of the terms "Allocable Share",
"Applicable Facility Fee Percentage", "Applicable Margin", "Event of Default",
"Proportional Share", "Reference Bank", "Reference Banks", "Required Banks",
"Revolving Credit Commitment", "Total Commitment" and "Unmatured Event of
Default", or changing the designation of the "Required Banks" as the Banks
entitled to
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direct the Syndication Agents pursuant to Section 8.01 hereof shall be effective
unless the same shall be signed by or on behalf of each Bank; PROVIDED FURTHER
that no such amendment, modification, supplement, termination, waiver or
consent, as the case may be, which has the effect of (x) increasing the duties
or obligations of any Agent or any Managing Agent or the Issuing Bank hereunder,
or (y) increasing the standard of care or performance required on the part of
any Agent or any Managing Agent or the Issuing Bank hereunder, or (z) reducing
or eliminating the indemnities or immunities to which any Agent or Managing
Agent or the Issuing Bank is entitled hereunder (including, without limitation,
any amendment or modification of this Section 10.01) shall be effective unless
the same shall be signed by or on behalf of the Agent or Managing Agent affected
thereby or the Issuing Bank, as the case may be. Any waiver of any provision of
this Agreement, and any consent to any departure by the Company from the terms
of any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which given. No notice to or demand on
the Company in any case shall entitle the Company to any other or further notice
or demand in similar or other circumstances.
SECTION 10.02. CONFIDENTIALITY. Each Bank and the Issuing Bank shall
maintain in confidence and not publish, disseminate or disclose in any manner or
to any Person and shall not use (x) any material, nonpublic information relating
to the Company and its Subsidiaries or (y) any technical, nonfinancial
information, data or know-how which is identified in writing as confidential by
the Company, in either case which may be furnished pursuant to this Agreement,
including any such information which may be furnished pursuant to Article VI
hereof (hereinafter collectively called "CONFIDENTIAL INFORMATION"), subject to
each Bank's and the Issuing Bank's (a) obligation to disclose any such
Confidential Information pursuant to a request or order under applicable laws
and regulations or pursuant to a subpoena or other legal process, (b) right to
disclose any such nontechnical or financial Confidential Information to bank
examiners, its affiliates, auditors, counsel, other professional advisors, other
Banks, and other banks or other entities in connection with an offer by such
Bank to sell a Participation to such other bank or other entity or to make an
assignment pursuant to Section 10.06(c) hereof, (c) right to use any such
Confidential Information in connection with the transactions set forth herein,
and (d) right to disclose any such Confidential Information in connection with
the transactions set forth herein or in connection with any litigation or
dispute involving the Banks or the Issuing Bank and the Company or any of its
Subsidiaries or any transfer or other disposition by such Bank of any of its
loans or other extensions of credit to the Company or any of the Company's
Subsidiaries; PROVIDED, HOWEVER, that Confidential Information disclosed
pursuant to clause (b) or (d) of this sentence shall be so disclosed subject to
such procedures as are reasonably calculated to maintain the confidentiality
thereof; and PROVIDED FURTHER that Confidential Information disclosed pursuant
to applicable laws, regulations, subpoenas or other legal process shall be so
disclosed subject to such confidentiality provisions, if any, as may be provided
under applicable law. The Banks and the Issuing Bank agree, to the extent
permitted by applicable law, to use their best efforts promptly to notify the
Company in writing of each order, subpoena or other legal process providing for
the disclosure and/or production of Confidential Information and shall, to the
extent permitted by applicable law, use their best efforts promptly to supply
the Company with a copy of such order, subpoena or other legal
77
process, in order that the Company may intervene in the relevant administrative
or legal proceeding or take other appropriate legal action to protect the
confidentiality of such Confidential Information. Notwithstanding the foregoing
provisions of this Section 10.02, (i) the foregoing obligation of
confidentiality shall not apply to any such Confidential Information that was
known to such Bank or the Issuing Bank or any of their affiliates prior to the
time it received such Confidential Information from the Company or its
Subsidiaries pursuant to this Agreement, other than as a result of the
disclosure thereof by a Person who, to the knowledge or reasonable belief of
such Bank or the Issuing Bank, was prohibited from disclosing it by any duty of
confidentiality arising (under this Agreement or otherwise) by contract or law,
and (ii) the foregoing obligation of confidentiality shall not apply to any such
Confidential Information that becomes part of the public domain independently of
any act of such Bank or the Issuing Bank not permitted hereunder (through
publication, the issuance of a patent disclosing such information or otherwise)
or when identical or substantially similar information is received by such Bank
or the Issuing Bank without restriction as to its disclosure or use, from a
Person who, to the knowledge or reasonable belief of such Bank or the Issuing
Bank, was not prohibited from disclosing it by any duty of confidentiality
arising (under this Agreement or otherwise) by contract or law. The obligations
of each Bank and the Issuing Bank under this Section 10.02 shall survive the
termination of this Agreement or, if earlier, the termination of the Revolving
Credit Commitment of such Bank or the replacement of the Issuing Bank.
SECTION 10.03. NOTICES, ETC. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto shall be in writing and (except for financial statements and other
documents to be furnished pursuant to Article VI hereof (with the exception of
notices of the occurrence of an Event of Default or an Unmatured Event of
Default which is continuing), which, if sent by mail, may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by telecopier, and
shall be deemed to be given for purposes of this Agreement on the day that such
writing is delivered or sent to the intended recipient thereof in accordance
with the provisions of this Section 10.03. Unless otherwise specified in a
notice sent or delivered in accordance with the foregoing provisions of this
Section 10.03, notices, demands, instructions and other communications in
writing shall be given to or made upon the respective parties hereto at their
respective addresses (or to their respective telecopier numbers) indicated on
Schedule II hereto, and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party on such
Schedule.
Anything herein to the contrary notwithstanding, notices from the Company
pursuant to Sections 2.01, 2.02, 2.06, 2.08, 2.12, 2.13, 4.01, 4.02 and 4.03
hereof shall be effective, for the purposes of this Agreement, only when
actually received by all Persons to whom such notices are required to be sent or
given.
SECTION 10.04. COSTS, EXPENSES AND TAXES. The Company agrees to pay
all costs and expenses of the Syndication Agents and the Administrative Agent in
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connection with the arrangement of the credit facilities provided for herein and
the negotiation, preparation, printing, reproduction, execution and delivery of
this Agreement, the Notes, any amendments or modifications of (or supplements
to) any of the foregoing and any and all other documents furnished in connection
with the execution and delivery of this Agreement, including the reasonable fees
and out-of-pocket expenses of outside counsel to the Administrative Agent and
the Syndication Agents relative thereto (limited, however, to such fees and
expenses of only one outside counsel who shall represent the Administrative
Agent and Syndication Agents), and all costs and expenses (whether of the
Syndication Agents and the Administrative Agent or any Bank or the Issuing Bank
or otherwise and including, without limitation, attorneys' fees and expenses),
if any, in connection with the enforcement of this Agreement, the Notes or any
other agreement furnished pursuant hereto or in connection herewith. The Company
further agrees to pay to the Issuing Bank all out-of-pocket expenses incurred in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder. In addition, the Company shall pay
all stamp, transfer and other transaction taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement, and the
Company shall pay all such transaction taxes payable or determined to be payable
in connection with the issuance of the Notes or the making of any Loan by any
Bank or the issuance of any Letter of Credit by the Issuing Bank, and the
Company agrees to save and hold each Agent, each Managing Agent, each Bank and
the Issuing Bank harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such transaction
taxes. If any action, suit or proceeding arising from any of the foregoing is
brought against any Agent, any Managing Agent, any Bank, the Issuing Bank or any
other Person indemnified or intended to be indemnified pursuant to this Section
10.04, the Company, to the extent and in the manner directed by the Person or
Persons indemnified or intended to be indemnified, will resist and defend such
action, suit or proceeding or cause the same to be resisted and defended by
counsel designated by the Company (which counsel shall be satisfactory to the
Person or Persons indemnified or intended to be indemnified). If the Company
shall fail to do any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of the Company contained herein shall be
breached, the Syndication Agents may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach, and may expend their funds for
such purpose. Any and all amounts so expended by the Syndication Agents shall be
repayable to it by the Company immediately upon the Syndication Agents' demand
therefor, with interest at a rate per annum (computed on the basis of a year
consisting of 365 or, when appropriate, 366 days) equal to the sum of (i) the
Alternate Base Rate in effect from time to time during the period from and
including the date so expended by such Agent to the date of repayment, PLUS (ii)
two percent (2%) per annum. The obligations of the Company under this Section
10.04 shall survive the termination of this Agreement and the discharge of the
Company's other obligations hereunder.
SECTION 10.05. CONFIRMATIONS. The Company and each Bank agree from
time to time, upon written request received by one from the other, to confirm to
the other in writing the aggregate unpaid principal amount of the Loans of such
Bank then outstanding under the Note or Notes held by it, and each such Bank
agrees from time to
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time, upon written request received by it from the Company, to make the Note or
Notes held by it (including the schedule attached thereto) available for
reasonable inspection by the Company at the office of such Bank.
SECTION 10.06. SUCCESSORS AND ASSIGNS; PARTICIPATIONS. (a) This
Agreement shall be binding upon and inure to the benefit of the Company, the
Banks, the Agents, the Managing Agents, the Issuing Bank and their respective
successors and permitted assigns; PROVIDED, HOWEVER, that any assignment or
transfer by a Bank of any or all of its rights hereunder shall not materially
increase the amount which would have been payable to the Bank making such
assignment or transfer by the Company under this Agreement and the Notes in the
absence of such assignment or transfer; and PROVIDED FURTHER that except in
accordance with the provisions of Section 6.02(a) hereof, the Company may not
assign its rights hereunder or in connection herewith or any interest herein
without the prior written consent of all of the Banks. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and each of their respective successors and permitted
assigns.
(b) Any Bank may without the consent of the Company sell
participations to one or more banks or other entities that, in the ordinary
course of their business, regularly extend credit of the types and in the
amounts extended by Banks under this Agreement (such banks and other entities
hereinafter referred to, collectively, as "Participants") in all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Revolving Credit Commitment and the Loan or Loans owing
to it and the Note or Notes held by it); PROVIDED, HOWEVER, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the Participants shall be entitled to the cost
protection provisions contained in Section 2.08, Section 2.12, and Section 3.04
hereof (PROVIDED that no Participant shall be entitled to receive any greater
amount pursuant to such provisions than the transferor Bank would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Bank to such Participant had no such transfer occurred and
PROVIDED FURTHER that such Participant shall have fully complied with the
provisions of Section 10.06(g) hereof) and the cost protection provisions of
Section 2.12 hereof shall be applied by assuming that such Bank did not sell any
participation to any Participant, (iv) the Company, the Agents, the Managing
Agents, the Issuing Bank and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and in connection with the cost protection provisions of
this Agreement to which any Participant is entitled pursuant to this Section
10.06(b), (v) such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company relating to the Loans, (vi) such Bank
shall not, except with respect only to changes in the amount of the Revolving
Credit Commitment of such Bank, or the principal amount of its Loans outstanding
or amounts owed to it in respect of LC Disbursements or the Interest Rate or
Interest Period with respect thereto, or the amount of any fees payable to it
hereunder or extension of the Maturity Date, enter into any agreement with any
Participant that would require the consent of such Participant with respect to
the exercise by such Bank of its voting rights
80
under this Agreement, and (vii) each such sale shall be made in the ordinary
course of such Bank's commercial banking business and in compliance with all
applicable laws.
(c) Any Bank may assign, with the prior written consent of the
Company, the Administrative Agent and the Issuing Bank (which consent shall not
unreasonably be withheld) and after using reasonable efforts to identify an
Eligible Assignee reasonably acceptable to the Company, to one or more Eligible
Assignees, or without the consent of the Company or the Administrative Agent but
with the consent of the Issuing Bank (which consent shall not unreasonably be
withheld) to one or more Banks, all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment and the same portion of the
applicable Loan or Loans at the time owing to it and the applicable Note or
Notes held by it, other than any Competitive Notes held by it, which may, but
need not, be assigned); PROVIDED, HOWEVER, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all the assigning Bank's
rights and obligations under this Agreement, the Loan or Loans at the time owing
to such assigning Bank and the Note or Notes held by it, other than any
Competitive Notes held by it, which may, but need not, be assigned, (ii) except
in the case of an assignment of a Bank's entire interest hereunder, the amount
of the Revolving Credit Commitment of the assigning Bank which it retains shall
be in a principal amount of not less than $15,000,000 and the amount of such
Revolving Credit Commitment which it assigns (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall be an integral multiple of $5,000,000; PROVIDED,
HOWEVER, that no assignment may be made that, taken together with any
simultaneous assignments, would result in any Bank having a Revolving Credit
Commitment which is less than $15,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance with
respect to such assignment, together with any Note or Notes subject to such
assignment and a processing and recordation fee of (A) $1,000 in the case of an
assignment to any Bank and (B) $2,500 in all other cases (except that such fee
shall not be payable if the Eligible Assignee is an affiliate of the assignor
Bank), (iv) each such assignment shall be made in the ordinary course of the
assigning Bank's commercial banking business and in compliance with all
applicable laws, (v) no such assignment shall be effective unless the Eligible
Assignee to which such assignment is made has fully complied with the provisions
of Section 10.06(g) hereof, and (vi) the Company shall have received a copy of
the Assignment and Acceptance signed by the parties thereto. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (x) the Eligible Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
(y) the assignor Bank thereunder shall, to the extent provided in such
Assignment and Acceptance, be released (except as provided in Section 2.12(b),
Section 10.02 and Section 10.07 hereof) from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto), and (z) Schedule I and
Schedule II hereto shall be deemed amended to reflect the addition of such
Eligible Assignee and the
81
decrease in the Revolving Credit Commitment of the assignor Bank. Each assignee
of an interest under this Agreement and any Note shall take such interest
subject to any request made, waiver or consent given or other action taken
hereunder prior to the effective date of the Assignment and Acceptance related
to such assignment, and, until the effective date of such Assignment and
Acceptance, the Syndication Agents, the Administrative Agent, the Issuing Bank
and the Company shall be entitled conclusively to assume that no assignment of
any interest under this Agreement and any Note has been made by any Bank or any
assignee. Notwithstanding any other provision of this Section 10.06, any Bank
may at any time assign all or any portion of its rights under this Agreement and
the Note or Notes held by it to a Federal Reserve Bank; PROVIDED that no such
assignment shall release a Bank from any of its obligations hereunder.
(d) By executing and delivering an Assignment and Acceptance, the
assignor Bank and the Eligible Assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) the assignor Bank
represents and warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, (ii) such
assignor Bank makes no representation or warranty, and assumes no responsibility
with respect to any statements, warranties or representations made by the
Company, in or in connection with this Agreement or with the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto, (iii)
such assignor Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of its obligations under this Agreement
or any other instrument or document furnished pursuant hereto, (iv) such
Eligible Assignee confirms that it has received a copy of this Agreement
together with copies of the financial statements and other documents referred to
in Section 5.01(e), Section 6.01(a)(i), Section 6.01(a)(ii) and Section
6.01(a)(v) hereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance, (v) such Eligible Assignee will, independently and
without reliance upon any Agent or any Managing Agent, such assignor Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement, (vi) such Eligible Assignee appoints and
authorizes each of the Syndication Agents and the Administrative Agent to take
such action as such Agent on its behalf and to exercise such powers under this
Agreement as are delegated to such Agent by the terms hereof, together with such
powers as are reasonably incidental thereto, (vii) such Eligible Assignee agrees
that it will perform all of the obligations, in accordance with the terms
thereof, of the assignor Bank under this Agreement which are assumed by such
Eligible Assignee under such Assignment and Acceptance and (viii) such Eligible
Assignee confirms that it is an Eligible Assignee.
(e) The Administrative Agent shall maintain at its address listed on
Schedule II hereto a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Banks and the
Revolving Credit Commitment of, and principal amount of the Loans owing to, each
Bank from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, in the
82
absence of manifest error, and the Company, the Agents, the Managing Agents, the
Banks and the Issuing Bank may treat each person whose name is recorded in the
Register as a Bank hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Company, any Bank or the Issuing Bank
at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Eligible Assignee, together with any Note or Notes subject
to such assignment and the written consent of the Company to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is precisely in the form of Exhibit G hereto (or as agreed upon by
the Company and the Administrative Agent), (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register, (iii)
give prompt notice thereof to the Company, and (iv) deliver a copy of such
Assignment and Acceptance to the Syndication Agents and the Company. Within five
Business Days after receipt of such Assignment and Acceptance, the Company, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note or Notes to the order of
such Eligible Assignee in an amount equal to its portion of the Revolving Credit
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained any Revolving Credit Commitment hereunder, a new
Note or Notes to the order of the assigning Bank in an amount equal to the
Revolving Credit Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or Exhibit A-2 hereto, as appropriate. The Notes surrendered by
the assigning Bank shall be marked "canceled" and returned by the Administrative
Agent to the Company.
(g) If, pursuant to this Section 10.06, any interest in this
Agreement, any Loan or any Note is transferred to any Participant (a
"Transferee") which is organized under the laws of any jurisdiction other than
the United States or any state thereof, the transferor Bank shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the transferor Bank (for the benefit of the transferor Bank, the
Administrative Agent and the Company) that under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent, the Company
or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank in
duplicate, for each taxable year of such Transferee during which interest
arising under or in connection with this Agreement is received, and before
payment by the Company of any such interest during such year (or at any other
time as required under United States income tax law), a properly completed and
executed copy of either Internal Revenue Service Form W-8BEN or Internal Revenue
Service Form W-8ECI or Internal Revenue Service Form W-9 and any additional form
(or such other form) as is necessary to claim complete exemption from United
States withholding taxes (wherein such Transferee claims entitlement to complete
exemption from United States withholding taxes on all payments hereunder), (iii)
to agree (for the benefit of the transferor Bank, the Administrative Agent and
the Company) to provide to the transferor Bank a new Internal Revenue Service
Form W-8BEN or
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Internal Revenue Service Form W-8ECI or Internal Revenue Service Form W-9 and
any such additional form (or any successor form or forms) upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable United States laws and regulations and amendments
duly executed and completed by such Transferee, and to comply from time to time
with all applicable United States laws and regulations with regard to such
withholding tax exemption, and (iv) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Administrative Agent and the Company) that
the form or forms so filed will be true and complete.
SECTION 10.07. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by the Banks and the Issuing Bank and the agreement
to extend and maintain the credit provided hereunder, the Company hereby agrees
to indemnify, exonerate and hold each of the Banks, the Agents, the Managing
Agents, the Issuing Bank and each of the officers, directors, employees and
agents of each of the Banks, the Agents and the Managing Agents, the Issuing
Bank and each Person, if any, who controls any such Bank, such Agent, any such
Managing Agent or the Issuing Bank, or any such officer, director, employee or
agent, within the meaning of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended (herein collectively called the
"INDEMNITEES" and individually called an "INDEMNITEE"), free and harmless from
and against any and all actions, claims, causes of action, suits, losses,
liabilities, damages and expenses, including without limitation, reasonable
attorneys' fees and disbursements (herein collectively called the "INDEMNIFIED
LIABILITIES"), which may be incurred by or asserted against the Indemnitees or
any Indemnitee as a result of, or arising out of, or relating to, or in
connection with, any investigation, litigation or proceeding related to (i) any
use made or proposed to be made by the Company of the proceeds of any Loan or
any Letter of Credit (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (ii) the consummation of the transactions contemplated by any such
use or proposed use, (iii) any untrue statement or alleged untrue statement of
any material fact made by the Company in connection therewith, or (iv) the
omission or alleged omission by the Company to state in connection therewith a
material fact required to be so stated or necessary to make the statements made,
in light of the circumstances under which they were made, not misleading,
whether or not any such Indemnitee is a party thereto, and, to the extent that
the foregoing undertaking may be unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law; PROVIDED, HOWEVER, that there shall be no right to indemnification or
contribution under this Section 10.07 for Indemnified Liabilities based upon or
arising out of actions or omissions by any Bank or the Issuing Bank in a
capacity other than that of a lender to the Company or an issuer of letters of
credit for the account of the Company or by any Agent or any Managing Agent in
its capacity other than that as agent for the Banks and the Issuing Bank
hereunder. Each Indemnitee will use its best efforts to promptly notify the
Company of each event of which it has knowledge which may give rise to a claim
under the indemnification provisions of this Section 10.07. If any action, suit
or proceeding arising from any of the foregoing is brought against any Agent,
any Managing
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Agent, any Bank or the Issuing Bank or any other Person indemnified or intended
to be indemnified pursuant to this Section 10.07, the Company, to the extent and
in the manner directed by the Person or Persons indemnified or intended to be
indemnified, will resist and defend such action, suit or proceeding or cause the
same to be resisted and defended by counsel designated by the Company (which
counsel shall be reasonably satisfactory to the Person or Persons indemnified or
intended to be indemnified). Each Indemnitee will use its best efforts to
cooperate in the defense of any such action, suit or proceeding. If the Company
shall fail to do any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of the Company contained herein shall be
breached, the Syndication Agents may (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach, and may expend their funds for
such purpose. Any and all amounts so expended by the Syndication Agents shall be
repayable to them by the Company immediately upon the Syndication Agents' demand
therefor, with interest at a rate per annum (computed on the basis of a year
consisting of 365 or, when appropriate, 366 days) equal to the sum of (i) the
Alternate Base Rate in effect from time to time during the period from and
including the date so expended by the Syndication Agents to the date of
repayment, PLUS (ii) two percent (2%) per annum. The Company shall have no
obligation to any Indemnitee under this Section 10.07 to the extent that
Indemnified Liabilities result from gross negligence or wilful misconduct on the
part of such Indemnitee. The obligations of the Company under this Section 10.07
shall survive the termination of this Agreement and the discharge of the
Company's other obligations hereunder. The obligations of each Bank and the
Issuing Bank (and of each other Indemnitee with respect to such Bank and the
Issuing Bank) under this Section 10.07 shall survive the termination of this
Agreement or, if earlier, the termination of the Revolving Credit Commitment of
such Bank or the replacement of the Issuing Bank.
SECTION 10.08. REFERENCE BANKS. Each Reference Bank agrees to use its
best efforts to furnish quotations to the Administrative Agent as contemplated
hereby by 10:30 a.m., New York City time, on the day such quotations are
required to be furnished hereunder. If any Reference Bank does not furnish a
timely quotation, the Administrative Agent shall determine the relevant
Eurodollar Rate, Term Federal Funds Rate or Certificate of Deposit Rate, as the
case may be, on the basis of the quotations, if any, furnished by the remaining
Reference Banks and, in the event that all Reference Banks fail to so furnish a
quotation, on the basis of such other information as the Administrative Agent in
its sole discretion shall deem appropriate. If any Reference Bank assigns its
Notes to an unaffiliated institution, the Administrative Agent shall, in
consultation with the Company, and with the consent of the Required Banks,
appoint another Bank to act as a Reference Bank hereunder. If the Company is
entitled to replace any Bank (which is also a Reference Bank) as provided in
Section 2.08(e), Section 2.12(c), Section 2.13 or Section 4.03(b) hereof, the
Company may, in consultation with the Administrative Agent, and with the consent
of the Required Banks, appoint a replacement Reference Bank.
SECTION 10.09. USA PATRIOT ACT. Each Bank hereby notifies the Company
that pursuant to the requirements of the USA Patriot Act, it is required to
obtain, verify and record information that identifies the Company, which
information
85
includes the name and address of the Company and other information that will
allow such Bank to identify the Company in accordance with the USA Patriot Act.
SECTION 10.10. HEADINGS. Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 10.11. CIRCUMSTANCES REQUIRING CONSULTATION. In the event that
(i) additional amounts have become payable to an Affected Bank as a result of
the occurrence of circumstances referred to in Section 2.08 hereof, (ii) any
Affected Bank shall have made a determination pursuant to Section 4.03(a)
hereof, or (iii) additional amounts have become payable to any Bank or any
Participant pursuant to Section 2.12 hereof, then, and in any such event, such
Affected Bank, Bank or Participant, as the case may be, shall promptly consult
with the Administrative Agent and the Company in order to endeavor, and such
Affected Bank, Bank or Participant, as the case may be, shall use its best
efforts, to take such action as, in the good faith judgment of such Affected
Bank, Bank or Participant, is then reasonable and practicable under the
circumstances (including, without limitation, changing the location of its
lending office or participating office, as the case may be, in order to move the
situs of such Affected Bank's or Bank's Loans or such Participant's
participation to another jurisdiction, if possible without material liability,
cost or expense to such Affected Bank, Bank or Participant and without material
reduction to such Affected Bank or Bank of any amount otherwise receivable by
such Affected Bank or Bank under this Agreement and such Affected Bank's or
Bank's Notes or receivable by such Participant under its participation) to
mitigate or eliminate the effect of such event. In addition, in the event that
(i) any Bank or Participant shall, as a result of reserves maintained by such
Bank or Participant with any Federal Reserve Bank of the United States in
connection with any of the Loans or participations, be entitled to receive, and
receive, amounts from such Federal Reserve Bank (in the form of interest or
otherwise) in respect of such reserves, or (ii) any Bank or Participant shall
receive any similar (or other) benefit as a result of actions taken by such Bank
or Participant with respect to any Capital Adequacy Rule, then, and in any such
event, such Bank or Participant shall promptly consult with the Administrative
Agent and the Company in order to endeavor, and such Bank or Participant shall
use its best efforts, to take such action as, in the good faith judgment of such
Bank or Participant, is then reasonable and practicable under the circumstances
to give the benefit of such amounts or benefits to the Company.
SECTION 10.12. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
SECTION 10.13. GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL
86
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 10.14. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER
OF JURY TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY WITH RESPECT
TO THIS AGREEMENT OR ANY NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE CITY OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE COMPANY ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT FROM WHICH NO APPEAL HAS BEEN
TAKEN OR IS AVAILABLE. THE COMPANY IRREVOCABLY AGREES THAT ALL PROCESS IN ANY
SUCH PROCEEDINGS IN ANY SUCH COURT MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH ON SCHEDULE II HERETO OR AT SUCH
OTHER ADDRESS OF WHICH THE SYNDICATION AGENTS SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE COMPANY TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE COMPANY, THE AGENTS, THE
MANAGING AGENTS, THE BANKS AND THE ISSUING BANK IRREVOCABLY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH JURISDICTION. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW OR LIMIT THE RIGHT OF ANY BANK OR THE ISSUING BANK TO BRING PROCEEDINGS
AGAINST THE COMPANY IN THE COURT OF ANY OTHER COMPETENT JURISDICTION.
SECTION 10.15. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10.16. WAIVER OF CERTAIN PROVISIONS UNDER THE EXISTING CREDIT
AGREEMENTS. Each Bank and the Issuing Bank which is also a party to either of
the Existing Credit Agreements (whether acting in its capacity as a bank or an
agent thereunder) and the Company (i) hereby agree that on the Effective Date
the commitments under such Existing Credit Agreement shall be terminated, and
the loans, if
87
any, outstanding thereunder, and accrued interest thereon, and any accrued
facility fee, shall be prepaid by the Company, and (ii) hereby waive any
provisions of such Existing Credit Agreement which would require a longer notice
period or a different type of notice.
SECTION 10.17. PROCEDURES RELATING TO ADDENDUM. On or prior to the
Effective Date a bank may deliver an Addendum in accordance with the provisions
of this Section 10.17.
(a) BANKS LISTED ON THE SIGNATURE PAGES. A bank listed on the
signature pages hereto may become a party hereto, and may increase or decrease
the amount of its Revolving Credit Commitment as set forth opposite its name on
Schedule I hereto by delivering an Addendum, appropriately completed and duly
executed, to the Company. Upon acceptance of such Addendum by the Company, such
bank shall become a party to this Agreement as a Bank with the Revolving Credit
Commitment set forth in such Addendum with the same effect as if such bank had
executed this Agreement by signing on the signature pages hereto.
(b) BANKS NOT LISTED ON SIGNATURE PAGES. A bank not listed on the
signature pages to this Agreement may become a party hereto by delivering an
Addendum, appropriately completed and duly executed, to the Company. Upon
acceptance of such Addendum by the Company, such bank shall become a party to
this Agreement as a Bank with the Revolving Credit Commitment set forth in such
Addendum with the same effect as if such bank had executed this Agreement by
signing on the signature pages hereto.
(c) AUTOMATIC AMENDMENT OF THE AGREEMENT. Upon acceptance by the
Company of an Addendum conforming to the requirements of this Section 10.17,
Schedule I and Schedule II hereto shall be amended automatically to reflect the
changes in Revolving Credit Commitments and other information set forth in such
Addendum.
(d) NOTIFICATION OF ADMINISTRATIVE AGENT, ETC. The Company shall
notify the Administrative Agent promptly of the Company's acceptance of any
Addendum and shall furnish the Administrative Agent copies of the same. The
Company may not accept an Addendum after the Effective Date.
SECTION 10.18. MAXIMUM INTEREST. Nothing contained in this Agreement
shall be deemed to establish or require the payment of interest at a rate in
excess of the maximum rate permitted by applicable law. In the event that the
rate of interest required to be paid to any of the Banks under this Agreement
exceeds the maximum rate permitted by applicable law, the rate of interest
required to be paid to such Banks hereunder shall be automatically reduced to
the maximum rate permitted by applicable law.
SECTION 10.19. SPECIAL TERMINATION PROVISION. If the Effective Date
has not occurred on or prior to July 15, 2004, then the obligations of the Banks
hereunder shall terminate and this Agreement shall cease to be binding upon the
parties hereto,
88
except that the obligations of the Company under Section 10.04 and Section 10.07
hereof shall survive such termination.
89
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
OCCIDENTAL PETROLEUM CORPORATION,
By /s/ J.R. Havert
-----------------------------------------
Name: J.R. Havert
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, in its individual capacity
and as Syndication Agent,
By /s/ Beth Lawrence
-----------------------------------------
Name: Beth Lawrence
Title: Managing Director
CITICORP USA, INC., in its individual capacity and as
Syndication Agent,
By /s/ Simon D. Walker
-----------------------------------------
Name: Simon D. Walker
Title: Vice President
THE BANK OF NOVA SCOTIA, in its individual
capacity and as Administrative Agent,
By /s/ V. Gibson
-----------------------------------------
Name: V. Gibson
Title:
BNP PARIBAS, in its individual capacity and as
Documentation Agent,
By /s/ Brian M. Malone (and A. David Dodd)
-----------------------------------------
Name: Brian M. Malone (and A. David Dodd)
Title: Managing Director (and Director)
90
BANK OF AMERICA, N.A., in its individual capacity
and as Documentation Agent,
By /s/ Claire Liu
-----------------------------------------
Name: Claire M. Liu
Title: Managing Director
BARCLAYS BANK PLC, in its individual capacity and
as Documentation Agent,
By /s/ Nicholas A. Bell
-----------------------------------------
Name: Nicholas A. Bell
Title: Director, Loan Transaction Management
ROYAL BANK OF SCOTLAND PLC, in its individual
capacity and as Documentation Agent,
By /s/ Keith Johnson
-----------------------------------------
Name: Keith Johnson
Title: Senior Vice President
THE BANK OF NEW YORK, in its individual
capacity as managing agent,
By /s/ Raymond J. Palmer
------------------------------------
Name: Raymond J. Palmer
Title: Vice President
BAYERISCHE LANDESBANK, in its individual
capacity and as Managing Agent,
By /s/ Dretmar Rieg (and James H.
Boyle)
-----------------------------------
Name: Dretmar Rieg (and James H.
Boyle)
Title: Senior Vice President (and
Vice President)
91
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS
BRANCH, in its individual capacity and as
Managing Agent,
By /s/ Sarah Wu
-----------------------------------
Name: Sarah Wu
Title: Vice President
MIZUHO CORPORATE BANK, LTD., in its
individual capacity and as Managing Agent,
By /s/ Greg Botshon
-----------------------------------
Name: Greg Botshon
Title: Senior Vice President
MORGAN STANLEY BANK, in its individual
capacity and as Managing Agent,
By /s/ Daniel Twenge
-----------------------------------
Name: Daniel Twenge
Title: Vice President
SOCIETE GENERALE, in its individual
capacity and as Managing Agent,
By /s/ Josh Rogers
-----------------------------------
Name: Josh Rogers
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION, in its individual capacity and
as Managing Agent,
By /s/ Yoshihiro Hyakutome
-----------------------------------
Name: Yoshishiro Hyakutome
Title: Deputy General Manager
UBS LOAN FINANCE LLC, in its individual
capacity and as Managing Agent,
By /s/ Sailoz Sikka and Doris
Mesa
-----------------------------------
Name: Sailoz Sikka and Doris Mesa
Title: Associate Director(s)
Banking Products Services, US
WACHOVIA BANK, NATIONAL
ASSOCIATION, in its individual capacity and
as Managing Agent,
By /s/ John J. Dalnoky
-----------------------------------
Name: John J. Dalnoky
Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA
S.A., in its individual capacity and as
Agent,
By /s/ Giampaolo Consigliere (and
John Martini)
-----------------------------------
Name: Giampaolo Consigliere (and
John Martini)
Title: Vice President Global
Trade Finance (and Vice President
Corporate Banking)
COMMERZBANK AG-NY, in its individual
capacity and as Agent,
By /s/ Andrew Kjoller (and
Timothy Chin)
-----------------------------------
Name:Andrew Kjoller (and Timothy
Chin)
Title: Vice President(s)
93
ING CAPITAL LLC, in its individual capacity
and as Agent,
By /s/ Cheryl LaBelle
-----------------------------------
Name: Cheryl LaBelle
Title: Managing Director
UFJ BANK LIMITED, in its individual capacity
and as Agent,
By /s/ Toshiko Boyd
-----------------------------------
Name: Toshiko Boyd
Title: Vice President
BANCA DI ROMA SPA,
By /s/ Thomas C. Woodruff (and
Luca Balestra)
-----------------------------------
Name: Thomas C. Woodruff (and
Luca Balestra)
Title: Vice President(s)
KBC BANK N.V.,
By /s/ Jean-Pierre Diels
-----------------------------------
Name: Jean-Pierre Diels
Title: First Vice President
RIYAD BANK HOUSTON AGENCY,
By /s/ Keith S. Tenny (and Paul
N. Travis)
-----------------------------------
Name: Keith S. Tenny (and Paul N.
Travis)
Title: General Manager (and Vice
President and Head of Corporate
Finance)
94
UNION BANK OF CALIFORNIA, N.A.,
By /s/ Dustin Gaspari
-----------------------------------
Name: Dustin Gaspari
Title: Vice President
WELLS FARGO BANK, N.A.,
By /s/ Vanessa Sheh Meyer
-----------------------------------
Name: Vanessa Sheh Meyer
Title: Vice President
ABU DHABI INTERNATIONAL BANK, INC.,
By /s/ David J. Young (and Nagy
S. Kolta)
-----------------------------------
Name: David J. Young (and Nagy S.
Kolta)
Title: Vice President (and
Executive Vice President)
MELLON BANK, N.A.,
By /s/ Mark W. Rogers
-----------------------------------
Name: Mark W. Rogers
Title: Vice President
STANDARD CHARTERED BANK,
By /s/ Frieda Youlios (and Robert
K. Reddington)
-----------------------------------
Name: Frieda Youlios (and Robert
K. Reddington)
Title: Vice President (and
AVP/Credit Documentation)
95
WESTLB AG, NEW YORK BRANCH,
By /s/ Sal Battinelli (and Paul
Verdi)
-----------------------------------
Name: Sal Battinelli (and Paul
Verdi)
Title: Managing Director (and
Associate Director)
SCHEDULE 1.01 TO
FIVE-YEAR CREDIT AGREEMENT
Capitalized terms used in Sections 6.02(b) and 6.02(c) of the
Five-Year Credit Agreement shall have the meanings indicated below. Capitalized
terms used in the definitions set forth below and not defined in this Schedule
1.01 shall have the meanings indicated in Section 1.01 of the Five-Year Credit
Agreement.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Syndication Agents.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total of the Net Tangible
Assets of the Company and its Consolidated Subsidiaries, included in their
financial statements prepared on a consolidated basis in accordance with
generally accepted accounting principles, after eliminating all intercompany
items.
"CONSOLIDATED SUBSIDIARY" means any Subsidiary of the Company included in
the financial statements of the Company and its Subsidiaries prepared on a
consolidated basis in accordance with generally accepted accounting principles.
"CURRENT LIABILITIES" means all Indebtedness that may properly be
classified as current liabilities in accordance with generally accepted
accounting principles.
"DISCOUNTED RENTAL VALUE" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent (after deducting the amount of
rent to be received by such Person under noncancelable subleases) required to be
paid by such Person under such lease during the remaining noncancelable term
thereof (including any such period for which such lease has been extended or
may, at the option of the lessor, be extended), discounted from the respective
due dates thereof to such date at a rate per annum of 11 3/4%. The net amount of
rent required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period,
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, water rates and similar charges. In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated. If and to the extent the amount of any rent
during any future period is not definitely determinable under the lease in
question, the amount of such rent shall be estimated in such reasonable manner
as the Board of Directors of the Company may in good faith determine.
"FUNDED DEBT" means all Indebtedness maturing one year or more from the
date of the creation thereof, all Indebtedness directly or indirectly renewable
or extendible, at
2
the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all Indebtedness under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more.
"INDEBTEDNESS," as applied to a Person, means, as of the date on which
Indebtedness is to be determined (a) all items (except items of capital stock or
of surplus or of deferred credits or minority interest in Subsidiaries) which,
in accordance with generally accepted accounting principles in effect from time
to time, would be included in determining total liabilities, as shown on the
liability side of a balance sheet of such Person; (b) all indebtedness secured
by any mortgage on any property or asset owned or held by such Person subject
thereto, whether or not the indebtedness secured thereby shall have been
assumed; and (c) all indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), discounted with recourse, agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect of
which such Person has otherwise become directly or indirectly liable. For the
purpose of computing the Indebtedness of any Person, there shall be excluded any
particular Indebtedness which meets one or more of the following categories:
(i) Indebtedness with respect to which sufficient cash or cash
equivalents or securities shall have been deposited in trust to
provide for the full payment, redemption or satisfaction of the
principal of, premium, if any, and interest to accrue on, such
Indebtedness to the stated maturity thereof or to the date of
prepayment thereof, as the case may be, and, as a result of such
deposit, such particular Indebtedness, in accordance with generally
accepted accounting principles, shall no longer be required to be
reported on a balance sheet of such Person as a liability, and such
cash or cash equivalents or securities shall not be required to be
reported as an asset;
(ii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which arises from any
commitment of such Person relating to pipeline operations to pay for
property or services substantially without regard to the non-delivery
of such property or the non-furnishing of such services; or
(iii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which is payable
solely out of certain property or assets of such Person, or is secured
by a mortgage on certain property or assets owned or held by such
Person, in either case without any further recourse to or liability of
such Person, to the extent such Indebtedness exceeds (x) if such
Person records such property or assets on its books, the value for
such property or assets recorded on such books or (y) if such Person
does not record such property or assets on its books, (1) if such
Indebtedness is a general obligation of the entity which does record
such property or assets on its books, the net investment in or
3
advances to such entity as recorded on the books of such Person or (2)
if such Indebtedness is payable solely out of certain property or
assets of such entity, the lesser of the value for such property or
assets recorded on the books of such entity or the net investment in
or advances to such entity as recorded on the books of such Person, in
each case determined in accordance with generally accepted accounting
principles.
"LIEN" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar encumbrance
to secure Indebtedness for borrowed money, but excluding any security interest
which a lessor may be deemed to have under a lease and any lien which may be
deemed to exist under a Production Payment or under any subordination
arrangement.
"NET TANGIBLE ASSETS" of any specified Person means the total of all assets
properly appearing on a balance sheet of such Person prepared in accordance with
generally accepted accounting principles, after deducting from such total,
without duplication of deductions, (a) all Current Liabilities of such Person;
(b) that portion of the book amount of all such assets which would be treated as
intangibles under generally accepted accounting principles, including without
limitation, all such items as goodwill, trademarks, trade names, brands,
copyrights, patents, licenses and rights with respect to the foregoing and
unamortized debt discount and expense; and (c) the amount, if any, at which any
stock of such Person appears on the asset side of such balance sheet.
"OBLIGATIONS" means the due and punctual payment by the Company of (a) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (b) each payment required to be made
under the Five-Year Credit Agreement in respect of any Letter of Credit, when
and as due, including payments in respect of reimbursements of LC Disbursements
and interest thereon and (c) all other monetary obligations of the Company to
the Banks under the Five-Year Credit Agreement
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PRINCIPAL DOMESTIC PROPERTY" means any (i) developed oil or gas producing
property or (ii) processing or manufacturing plant, in each case which is now or
hereafter owned or leased by the Company or any Consolidated Subsidiary and
which is located in the continental United States (provided, however, that any
such property or plant declared by the Board of Directors by Board Resolution
not to be of material importance to the business of the Company and its
Consolidated Subsidiaries taken as a whole will be excluded from the foregoing
definition).
4
"PRODUCTION PAYMENT" means any economic interest in oil, gas or mineral
reserves which (i) entitles the holder thereof to a specified share of future
production from such reserves, free of the costs and expenses of such
production, and (ii) terminates when a specified quantity of such share of
future production from such reserves has been delivered or a specified sum has
been realized from the sale of such share of future production from such
reserves.
"SECURED DEBT" means any Indebtedness of the Company or any Consolidated
Subsidiary, secured by a Lien on any Principal Domestic Property or on any
shares of stock or on any Indebtedness of any Consolidated Subsidiary which owns
any Principal Domestic Property.
"SUBSIDIARY" means a corporation, association, partnership or other
business entity more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors or persons performing similar functions, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
SCHEDULE I TO
FIVE-YEAR CREDIT AGREEMENT
AMOUNTS OF COMMITMENTS
AMOUNT OF
REVOLVING CREDIT
NAME OF BANK COMMITMENT
------------ ----------
JPMORGAM CHASE BANK 85,000,000
CITICORP USA, INC. 85,000,000
THE BANK OF NOVA SCOTIA 85,000,000
BNP PARIBAS 85,000,000
BANK OF AMERICA, N.A. 85,000,000
BARCLAYS BANK PLC 85,000,000
ROYAL BANK OF SCOTLAND PLC 85,000,000
THE BANK OF NEW YORK 55,000,000
BAYERISCHE LANDESBANK 55,000,000
CREDIT SUISSE FIRST BOSTON, ACTING 55,000,000
THROUGH ITS CAYMAN ISLANDS BRANCH
MIZUHO CORPORATE BANK, LTD. 55,000,000
MORGAN STANLEY BANK 55,000,000
SOCIETE GENERALE 55,000,000
SUMITOMO MITSUI BANKING CORPORATION 55,000,000
UBS LOAN FINANCE LLC 55,000,000
WACHOVIA BANK, NATIONAL ASSOCIATION 55,000,000
BANCO BILBAO VIZCAYA ARGENTARIA S.A. 45,000,000
COMMERZBANK AG-NY 45,000,000
ING CAPITAL LLC 45,000,000
UFJ BANK LIMITED 45,000,000
BANCA DI ROMA SPA 30,000,000
KBC BANK, N.V. 30,000,000
RIYAD BANK, HOUSTON AGENCY 30,000,000
UNION BANK OF CALIFORNIA, N.A. 30,000,000
WELLS FARGO BANK, N.A. 30,000,000
ABU DHABI INTERNATIONAL BANK, Inc. 20,000,000
MELLON BANK, N.A. 20,000,000
STANDARD CHARTERED BANK 20,000,000
WESTLB AG, NEW YORK BRANCH 20,000,000
TOTAL COMMITMENT AMOUNT $1,500,000,000
SCHEDULE II TO
FIVE-YEAR CREDIT AGREEMENT
ADDRESSES, TELECOPIER AND TELEPHONE NUMBERS
If to OCCIDENTAL OCCIDENTAL PETROLEUM CORPORATION
PETROLEUM CORPORATION: 10889 Wilshire Boulevard
Los Angeles, CA 90024
Attention: Treasurer
Tel. No. (310) 208-8800
Telecopier No. (310) 443-6661
If to JPMORGAN CHASE JPMORGAN CHASE BANK
BANK: 600 Travis Street
20th Floor
Houston, TX 77002
Attention: Ms. Beth Lawrence
Tel. No. (713) 216-5968
Telecopier No. (713) 216-8870
With copies to:
JPMORGAN CHASE BANK
1111 Fannin
10th Floor
Houston, TX 77002
Attention: Iha Tjahiono
Tel. No. (713) 750-2268
Telecopier No. (713) 427-6307
and
JPMORGAN CHASE BANK
1111 Fannin
10th floor
New York, NY 77002
Attention: Debra Torres
Tel. No. (212) 750-2424
Telecopier No. (713) 427-6307
If to CITICORP USA, INC.: CITICORP USA, INC.
2 Penns Way
New Castle, DE 19720
Attention: Mr. Dennis Banfield
Tel. No. (302) 894-6109
Telecopier No. (212) 994-0847
2
With copy to:
CITICORP USA, INC.
1200 Smith Street
Suite 2000
Houston, TX 77002
Attention: Mr. Todd Mogil
Tel No. (713) 654-3559
Telecopier No. (713) 654-2849
If to THE BANK OF NOVA THE BANK OF NOVA SCOTIA
SCOTIA: 600 Peachtree Street N.E.,
Suite 2700
Atlanta, GA 30308-2214
Attention: Demetria January
Tel. No. (404) 877-1578
Telecopier No. (404) 888-8998
With copy to:
THE BANK OF NOVA SCOTIA
1100 Louisiana, Suite 3000
Houston, TX, 77002
Attention: Greg George
Tel. No. (713) 759-3430
Telecopier No. (713) 752-2425
If to BNP PARIBAS: BNP PARIBAS
919 Third Avenue
New York, NY 10022
Attention: Cory Lantin
Tel. No. (212) 471-6626
Telecopier No. (212) 841-8683
With copy to:
BNP PARIBAS
929 Third Avenue
New York, NY 10022
Attention: Gabriel Candamo
Tel. No. (212) 471-6626
Telecopier No. (212) 841-8683
3
If to BANK OF
AMERICA, N.A.: BANK OF AMERICA, N.A.
901 Main Street
TX1-492-14-05
Dallas, TX 75202
Attention: Karen Dumond
Tel. No. (214) 209-0539
Telecopier No. (290) 290-9445
With a copy to:
BANK OF AMERICA, N.A.
700 Louisiana Street
8th Floor
TX4-213-08-14
Houston, TX 77002-2700
Attention: Thelma Johnson
Tel. No. (713) 247-7231
Telecopier No. (713) 247-7288
If to BARCLAYS BANK PLC: BARCLAYS BANK PLC
222 Broadway
New York, NY 10038
Attention: M. Bernard
Tel No. (212) 412-3728
Telecopier No. (212) 412-5306
With a copy to:
BARCLAYS BANK PLC
222 Broadway
New York, NY 10038
Attention: E. Hoffman
Tel No. (212) 412-3709
Telecopier No. (212) 412-5306
If to ROYAL BANK OF ROYAL BANK OF SCOTLAND PLC,
SCOTLAND PLC: 101 Park Avenue
New York, NY 10178
Attention: Mamiana Spimidor
Tel. No. (212) 401-3737
Telecopier No. (212) 401-1494
With a copy to:
ROYAL BANK OF SCOTLAND PLC,
4
101 Park Avenue
New York, NY 10178
Attention: Betancount Mantha
Tel. No. (212) 401-1439
Telecopier No. (212) 401-1494
If to THE BANK OF THE BANK OF NEW YORK
NEW YORK: One Wall Street
19th Floor
New York, NY 10286
Attention: Lisa Williams
Tel. No. (212) 635-7585
Telecopier No. (212) 635-7552
If to BAYERISCHE BAYERISCHE LANDESBANK
LANDESBANK: 560 Lexington Avenue
New York, NY 10022
Attention: Patricia Sanchez
Tel. No. (212) 310-9810
Telecopier No. (212) 310-9930
With a copy to:
560 Lexington Avenue
New York, NY 10022
Attention: Carol Deussie
Tel. No. (212) 310-9846
Telecopier No. (212) 310-9930
If to CREDIT SUISSE CREDIT SUISSE FIRST BOSTON, ACTING
FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
THROUGH ITS CAYMAN One Madison Avenue
ISLANDS BRANCH: New York, NY 10010
Attention: Mr. Ed Markowski
Tel. No. (212) 538-3380
Telecopier No. (212) 538-6851
With a copy to:
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
One Madison Avenue
New York, NY 10010
Attention: Hazel Leslie
Tel. No. (212) 325-9049
Telecopier No. (212) 325-8317
If to MIZUHO CORPORATE MIZUHO CORPORATE BANK, LTD.
BANK, LTD.: 1800 Plaza Ten
Jersey City, NJ 07311
Attention: Noriko Daido
Tel No. (201) 626-9419
Telecopier No. (201) 626-9942
With a copy to:
MIZUHO CORPORATE BANK, LTD.
1800 Plaza Ten
Jersey City, NJ 07311
Attention: Charmaine Tenn Sing Oue
Tel No. (201) 626-9144
Telecopier No. (201) 626-9942
If to MORGAN STANLEY MORGAN STANLEY BANK
BANK: 1633 Broadway, 25th Floor
New York, NY 10019
Attention: Mr. Larry Benison
Tel No. (212) 537-1312
Telecopier No. (212) 537-1867
With a copy to:
MORGAN STANLEY BANK
1633 Broadway, 25th Floor
New York, NY 10019
Attention: Jamila Williams
Tel No. (212) 537-1382
Telecopier No. (212) 537-1866
6
If to SOCIETE GENERALE: SOCIETE GENERALE
560 Lexington Avenue
4th Floor
New York, NY 10022
Attention: Michael Young
Tel. No. (212) 278-6048
Telecopier No. (212) 278-6240
With a copy to:
SOCIETE GENERALE
560 Lexington Avenue
4th Floor
New York, NY 10022
Attention: Saulange Henry
Tel. No. (212) 278-6049
Telecopier No. (212) 278-7343
If to SUMITOMO MITSUI: SUMITOMO MITSUI BANKING CORPORATION
277 Park Avenue
New York, NY 10172
Attention: Leesha Thomas
Tel. No. (212) 224-4382
Telecopier No. (212) 224-5197
If to UBS LOAN FINANCE UBS LOAN FINANCE LLC
LLC: 677 Washington Blvd.
Stamford, CT 06901
Attention: Mr. Christopher Aitkin
Tel. No. (203) 719-3845
Telecopier No. (203) 719-3888
With a copy to:
UBS LOAN FINANCE LLC
677 Washington Blvd.
Stamford, CT 06901
Attention: Mr. Winslowe Ogbourne
Tel. No. (203) 719-3587
Telecopier No. (203) 719-3888
7
If to WACHOVIA BANK, WACHOVIA BANK, NATIONAL ASSOCIATION
NATIONAL ASSOCIATION: 201 South College, CP-9
Charlotte, NC 28288-1183
Attention: Cynthia Rawson
Tel No. (704) 374-4425
Telecopier No. (704) 715-0097
If to BANCO BILBAO BANCO BILBAO VIZCAYA ARGENTARIA S.A.
VIZCAYA ARGENTARIA S.A.: 1345 Avenue of the Americas, 45th Floor
New York, NY 10105
Attention: Ms. Patricia Kunert
Tel No. (212) 728-2396
Telecopier No. (212) 333-2926
With copy to:
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
Attention: Mr. Michael Pizarro
Tel No. (212) 728-1668
Telecopier No. (212) 333-2926
If to COMMERZBANK COMMERZBANK AG-NY
AG-NY: 2 World Financial Center
New York, NY 10281-1050
Attention: Ms. Joylynn A. Jarvis
Tel No. (212) 266-7348
Telecopier No. (212) 298-8111
With copy to:
COMMERZBANK AG-NY
2 World Financial Center
New York, NY 10281-1050
Attention: Ms. Olga Tome
Tel No. (212) 266-7348
Telecopier No. (212) 298-8111
If to ING CAPITAL LLC: ING CAPITAL LLC
1325 Avenue of the Americas, 10th Floor
New York, NY 10019
Attention: Mr. Mark LaGreca
Tel No. (646) 424-8234
Telecopier No. (646) 424-8251
8
With a copy to:
ING CAPITAL LLC
1325 Avenue of the Americas, 10th Floor
New York, NY 10019
Attention: Ms. Ermalinda Young
Tel No. (646) 424-8240
Telecopier No. (646) 424-8251
If to UFJ BANK LIMITED: UFJ BANK LIMITED
55 East 52nd Street
New York, NY 10055
Attention: Marlin Chin
Tel. No. (212) 339-6392
Telecopier No. (212) 754-2368
With a copy to:
UFJ BANK LIMITED
55 East 52nd Street
New York, NY 10055
Attention: Ms. Priscilla Mark
Tel. No. (212) 339-6341
Telecopier No. (212) 754-2368
IF TO BANCA DI ROMA, BANCA DI ROMA SPA,
SPA: 34 East 51st Street
New York, NY 10022
Attention: Mr. Salvatore Rappa
Tel. No. (212) 407-1812
Telecopier No. (212) 407-1684
If to KBC BANK N.V.: KBC BANK N.V.
125 West 55th Street, 10th Floor
New York, NY 10019
Attention: Ms. Rose Pagan
Tel. No. (212) 541-0657
Telecopier No. (212) 956-5580
With a copy to:
KBC BANK N.V.
9
125 West 55th Street, 10th Floor
New York, NY 10019
Attention: Mr. Robert Pacifici
Tel. No. (212) 541-0671
Telecopier No. (212) 956-5581
IF TO RIYAD BANK, RIYAD BANK, HOUSTON AGENCY
HOUSTON AGENCY: 700 Louisiana Street
Suite 4770
Houston, TX 77002
Attention: Mr. Pierre Herszdorfer
Tel No. (713) 331-2022
Telecopier No. (713) 331-2043
If to UNION BANK OF UNION BANK OF CALIFORNIA, N.A.
CALIFORNIA, N.A.: CLSO Commersial Loan Operations
601 Potrero Grande, 1st Floor
Monterey Park, CA 91755
Attention: Ms. Maria Suncin
Tel. No. (323) 720-2870
Telecopier No. (323) 720-2252/51
If to WELLS FARGO BANK, WELLS FARGO BANK, N.A.
N.A.: 201 Third St., 8th Floor
San Francisco, CA 94103
Attention: Ms. Rosanna Roxas
Tel No. (415) 477-5425
Telecopier No. (415) 979-0675
With a copy to:
WELLS FARGO BANK, N.A.
201 Third St., 8th Floor
San Francisco, CA 94103
Attention: Ms. Evelyn Lucas
Tel No. (415) 477-5426
Telecopier No. (415) 979-0675
If to ABU DHABI ABU DHABI INTERNATIONAL BANK, INC.
INTERNATIONAL BANK, INC.: 1020 19th St. N.W., Suite 500
Washington, DC 20036
Attention: Loan Administrator
Tel No. (202) 842-7911
Telecopier No. (202) 842-7955
10
If to MELLON BANK, N.A.: MELLON BANK, N.A.
525 William Penn Place
Room 1203
Loan Administration
Pittsburgh, PA 15259-0003
Attention: Ms. Barbara Gago
Tel. No. (412) 234-4710
Telecopier No. (412) 209-6114
With copy to:
MELLON BANK, N.A.
One Mellon Center
Pittsburgh, PA 15258-0001
Attention: Terpsie Katsafanas
Tel. No. (412) 234-4912
Telecopier No. (412) 209-6105
If to STANDARD CHARTERED STANDARD CHARTERED BANK
BANK: 1 Madison Avenue
New York, NY 10010-3603
Attention: Victoria Faltine
Tel No. (212) 667-0203
Telecopier No. (212) 667-0287
With a copy to:
STANDARD CHARTERED BANK
790 East Colorado Blvd., Suite 808
Pasadena, CA 91101
Attention: Jarunee Hampachern
Tel No. (626) 639-8013
Telecopier No. (626) 639-8010
If to WESTLB AG, NEW WESTLB AG, NEW YORK BRANCH
YORK BRANCH: 1211 Avenue of the Americas
New York, NY 10036
Attention: Ms. Cheryl Wilson
Tel No. (212) 852-6152
Telecopier No. (212) 302-7946
11
EXHIBIT A-1
OCCIDENTAL PETROLEUM CORPORATION
COMPETITIVE NOTE
$1,500,000,000 New York, New York
June 18, 2004
FOR VALUE RECEIVED, the undersigned, OCCIDENTAL PETROLEUM CORPORATION,
a Delaware corporation (the "COMPANY"), hereby promises to pay to the order of [
] (the "BANK"), at the office of The Bank of Nova Scotia, at One Liberty Plaza,
New York, New York 10006, on (i) the last day of each Interest Period as defined
in the Five-Year Credit Agreement dated as of June 18, 2004, among the Company,
the banks parties thereto, JPMorgan Chase Bank and Citicorp USA, Inc., as
co-syndication agents, BNP Paribas, Bank of America, N.A., Barclays Bank PLC and
The Royal Bank of Scotland PLC, as co-documentation agents, and The Bank of Nova
Scotia, as administrative agent, as the same may at any time be amended or
modified and in effect (the "CREDIT AGREEMENT"), the aggregate unpaid principal
amount of all Competitive Loans (as defined in the Credit Agreement) made by the
Bank to the Company pursuant to the Credit Agreement to which such Interest
Period applies and (ii) the Maturity Date (as defined in the Credit Agreement),
the lesser of the principal sum of ONE BILLION FIVE HUNDRED MILLION DOLLARS
($1,500,000,000) and the aggregate unpaid principal amount of all Competitive
Loans made by the Bank to the Company pursuant to the Credit Agreement, in
lawful money of the United States of America in immediately available funds, and
to pay interest on the unpaid principal amount hereof from time to time
outstanding from the date hereof until paid, in like funds, at said office, at a
rate or rates per annum and payable on such dates as determined pursuant to the
Credit Agreement.
The Company promises to pay interest, on demand, on any overdue
principal hereof from the due date thereof until paid at a rate or rates
determined as set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Bank of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All borrowings evidenced by this Competitive Note (together with the
interest rates with respect thereto) and all payments and prepayments of the
principal hereof, and the respective dates thereof, shall be endorsed by the
Bank on Schedule 1 attached hereto and made a part hereof, or on a continuation
thereof which shall be attached hereto and made a part hereof; PROVIDED,
HOWEVER, that any failure of the Bank to make such a notation or any error in
such notation shall not in any manner affect the obligation of the Company to
make payments of principal and interest with respect hereto in accordance with
the terms of this Competitive Note and the Credit Agreement.
2
This Competitive Note is one of the Competitive Notes referred to in,
and is subject to and governed by the terms and provisions of, the Credit
Agreement which, among other things, contains provisions for the acceleration of
the maturity hereof upon the happening of certain events, for prepayment of the
principal hereof prior to the maturity thereof and for the amendment or waiver
of certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified. THIS COMPETITIVE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------------------
Name:
Title:
SCHEDULE 1
TO COMPETITIVE NOTE
SCHEDULE 1 ATTACHED TO COMPETITIVE NOTE DATED
JUNE 18, 2004, OF OCCIDENTAL PETROLEUM CORPORATION,
PAYABLE TO THE ORDER OF [ ]
COMPETITIVE LOANS AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount Principal Principal Notation
Date of Loan Interest Rate Repaid Balance Made By
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EXHIBIT A-2
OCCIDENTAL PETROLEUM CORPORATION
REVOLVING CREDIT NOTE
$[Amount of Bank's Revolving New York, New York
Credit Commitment] June 18, 2004
FOR VALUE RECEIVED, the undersigned, OCCIDENTAL PETROLEUM CORPORATION,
a Delaware corporation (the "COMPANY"), hereby promises to pay to the order of [
] (the "BANK"), at the office of The Bank of Nova Scotia, at One Liberty Plaza,
New York, New York 10006, on (i) the last day of each Interest Period as defined
in the Five-Year Credit Agreement dated as of June 18, 2004, among the Company,
the banks parties thereto, JPMorgan Chase Bank and Citicorp USA, Inc., as
co-syndication agents, BNP Paribas, Bank of America, N.A., Barclays Bank PLC and
The Royal Bank of Scotland PLC, as co-documentation agents, and The Bank of Nova
Scotia, as administrative agent, as the same may at any time be modified or
amended and in effect (the "CREDIT AGREEMENT"), the aggregate unpaid principal
amount of each Revolving Credit Loan (as defined in the Credit Agreement) made
by the Bank to the Company pursuant to the Credit Agreement to which such
Interest Period applies and (ii) the Maturity Date (as defined in the Credit
Agreement) the lesser of the principal sum of [amount of Bank's Revolving Credit
Commitment] DOLLARS ($ ) and the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Bank to the Company pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest on the unpaid principal amount hereof from
time to time outstanding from the date hereof until paid, in like funds, at said
office, at a rate or rates per annum and payable on such dates as determined
pursuant to the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue
principal hereof from the due date thereof until paid at a rate or rates
determined as set forth in the Credit Agreement.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Bank of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All borrowings evidenced by this Revolving Credit Note (together with
the interest rates with respect thereto) and all payments and prepayments of the
principal hereof, and the respective dates thereof, shall be endorsed by the
Bank on Schedule 1 attached hereto and made a part hereof, or on a continuation
thereof which shall be attached hereto and made a part hereof; provided,
however, that any failure of the Bank to make such a notation or any error in
such notation shall not in any manner affect the obligation of the Company to
make payments of principal and interest with respect hereto in accordance with
the terms of this Revolving Credit Note and the Credit Agreement.
2
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and is subject to and governed by the terms and provisions of,
the Credit Agreement, which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
prepayment of the principal hereof prior to the maturity thereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. THIS REVOLVING CREDIT NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------------------
Name:
Title:
SCHEDULE 1
TO REVOLVING
CREDIT NOTE
SCHEDULE 1 ATTACHED TO REVOLVING CREDIT NOTE DATED
JUNE 18, 2004, OF OCCIDENTAL PETROLEUM CORPORATION,
PAYABLE TO THE ORDER OF [ ]
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount Principal Principal Notation
Date of Loan Interest Rate Repaid Balance Made By
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EXHIBIT B
COMPETITIVE BID REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation, a Delaware
corporation (the "Company"), refers to the Five-Year Credit Agreement dated as
of June 18, 2004, among the Company, the banks parties thereto, JPMorgan Chase
Bank and Citicorp USA, Inc., as co-syndication agents, BNP Paribas, Bank of
America, N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC, as
co-documentation agents, and The Bank of Nova Scotia, as administrative agent.
Capitalized terms used herein and not defined shall have the meanings assigned
to such terms in the Credit Agreement.
The Company hereby gives you notice pursuant to Section 2.02(b) of the
Credit Agreement that it requests a Competitive Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing
---------------
(B) Principal amount of Competitive Borrowing 1
---------------
(C) Interest rate basis 2
---------------
(D) Interest Period and the last day thereof 3
---------------
- -------------------------
1 Not less than $50,000,000 or greater than the available Total Commitment.
2 Eurodollar Loan, Certificate of Deposit Loan or Fixed Rate Loan.
3 Which, in the case of Fixed Rate Loans, shall not be less than 8 days or
more than 360 days, and which in each case shall end not later than the Maturity
Date.
2
Upon acceptance of any or all of the Competitive Loans offered by the
Banks in response to this request, the Company shall be deemed to have
represented and warranted that each of the conditions to lending specified in
Section 7.02 of the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------------------
Name:
Title:
EXHIBIT C
NOTICE OF COMPETITIVE BID REQUEST
[Date]
[Name of Bank]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement dated as of June
18, 2004, among Occidental Petroleum Corporation, a Delaware corporation (the
"Company"), the banks parties thereto, JPMorgan Chase Bank and Citicorp USA,
Inc., as co-syndication agents, BNP Paribas, Bank of America, N.A., Barclays
Bank PLC and The Royal Bank of Scotland PLC, as co-documentation agents, and The
Bank of Nova Scotia, as administrative agent. Capitalized terms used herein and
not defined shall have the meanings assigned to such terms in the Credit
Agreement.
The Company made a Competitive Bid Request on , pursuant to Section
2.02 of the Credit Agreement and in that connection you are invited to submit a
Competitive Bid by [Date]/[Time]4. Your Competitive Bid must comply with Section
2.02 of the Credit Agreement and the terms set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing
---------------
(B) Principal amount of Competitive Borrowing
---------------
(C) Interest rate basis
---------------
- -------------------------
1 The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Loans, not later than 2:00 p.m., New York City time, four
Business Days before a proposed Competitive Borrowing, (ii) in the case of
Certificate of Deposit Loans, not later than 2:00 p.m., New York City time,
three Business Days before a proposed Competitive Borrowing and (iii) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
Borrowing Date of the proposed Competitive Borrowing.
2
(D) Interest Period and the last day thereof
---------------
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------------------
Name:
Title:
EXHIBIT D
COMPETITIVE BID
[Date]
The Bank of Nova Scotia, as
Administrative Agent for the
Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Five-Year Credit
Agreement dated as of June 18, 2004, among Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), the banks parties thereto, JPMorgan Chase
Bank and Citicorp USA, Inc., as co-syndication agents, BNP Paribas, Bank of
America, N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC, as
co-documentation agents, and The Bank of Nova Scotia, as administrative agent.
Capitalized terms used herein and not defined shall have the meanings assigned
to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section
2.02(c) of the Credit Agreement, in response to the Competitive Bid Request made
by the Company on ________________, ____, and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Principal Amount 1
---------------
(B) Competitive Bid Rate 2
---------------
(C) Interest Period and the last day thereof 3
---------------
The undersigned hereby confirms that it is prepared to extend credit
to the Company upon acceptance by the Company of this bid in accordance with
Section 2.02(e) of the Credit Agreement.
- -------------------------
1 Not less than $5,000,000 and in integral multiples of $1,000,000 and which
may equal the entire aggregate principal amount of the Competitive Borrowing
requested by the Company. Multiple bids will be accepted by the Administrative
Agent.
2 I.e., in the case of Eurodollar Loans or Certificate of Deposit Loans, the
Margin, and in the case of Fixed Rate Loans, the fixed rate of interest offered
(expressed as a percentage rate per annum rounded, if necessary, to the nearest
1/10,000 of one percent).
2
Very truly yours,
[NAME OF BANK]
By
-------------------------------------
Name:
Title:
EXHIBIT E
REVOLVING CREDIT BORROWING REQUEST
[Date]
The Bank of Nova Scotia, as
Administrative Agent
for the Banks referred to below
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, Occidental Petroleum Corporation, a Delaware corporation (the
"Company"), refers to the Five-Year Credit Agreement dated as of June 18, 2004,
among the Company, the banks parties thereto, JPMorgan Chase Bank and Citicorp
USA, Inc., as co-syndication agents, BNP Paribas, Bank of America, N.A.,
Barclays Bank PLC and The Royal Bank of Scotland PLC, as co-documentation
agents, and The Bank of Nova Scotia, as administrative agent. Capitalized terms
used herein and not defined shall have the meanings assigned to such terms in
the Credit Agreement.
The Company hereby gives you notice pursuant to Section 2.01(b) of the Credit
Agreement that it requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Revolving Credit Borrowing is requested to be made:
(A) Date of Revolving Credit Borrowing
----------
(B) Principal amount of Revolving Credit
Borrowing 1
----------
(C) Interest rate basis 2
----------
(D) Interest Period and the last day thereof 3
----------
- -------------------------
1 Not less than $50,000,000 and in integral multiples of $10,000,000.
2 Eurodollar Loan, Certificate of Deposit Loan, Term Federal Funds Loan or
Alternate Base Rate Loan, or a combination thereof.
3 Which shall end not later than the Maturity Date.
2
Upon the borrowing of the Revolving Credit Loans to be made by the Banks in
response to this request, the Company shall be deemed to have represented and
warranted that each of the conditions to lending specified in Section 7.02 of
the Credit Agreement has been satisfied.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By:
-----------------------------------------
Name:
Title:
EXHIBIT F
OCCIDENTAL PETROLEUM CORPORATION
CERTIFICATE
(Pursuant to Section 7.01(c))
I, the undersigned, [an] [the] [Assistant] Secretary of OCCIDENTAL
PETROLEUM CORPORATION, a Delaware corporation (the "Company"), DO HEREBY CERTIFY
that:
1. This Certificate is furnished pursuant to Section 7.01(c) of that
certain Five-Year Credit Agreement dated as of June 18, 2004, among the Company,
the banks parties thereto, JPMorgan Chase Bank and Citicorp USA, Inc., as
co-syndication agents, BNP Paribas, Bank of America, N.A., Barclays Bank PLC and
The Royal Bank of Scotland PLC, as co-documentation agents, and The Bank of Nova
Scotia, as administrative agent (such credit agreement, as in effect on the date
of this Certificate, being herein called the "Credit Agreement"). Unless
otherwise defined herein, capitalized terms used in this Certificate have the
meanings assigned to those terms in the Credit Agreement.
2. There have been no amendments to the Restated Certificate of
Incorporation of the Company since , 20 . 1
3. Attached hereto as Annex A is a true and correct copy of the
By-laws of the Company as in effect on the date hereof.
4. Attached hereto as Annex B is a true and correct copy of the
resolutions duly adopted by the [Executive Committee of] the Board of Directors
of the Company [by unanimous written consent] on, and effective as of ,
20 , which resolutions have not been revoked, modified, amended or rescinded
and are still in full force and effect, and the Credit Agreement and the Notes
are in substantially the forms of those documents submitted to and approved by
the [Executive Committee of the] Board of Directors of the Company.
5. The persons named in Annex C attached hereto have been duly elected
and have duly qualified as, and at all times since , 20 (to
and including the date hereof) have been, officers of the Company, holding the
respective offices set forth therein opposite their names, and the signatures
set forth therein opposite their names are their genuine signatures.
- -------------------------
1 Insert a date which is on or before the date of the Secretary of State's
Certificate furnished pursuant to clause (i) of Section 7.01(b) of the Credit
Agreement.
2
6. I know of no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
WITNESS my hand as of this 18th day of June 2004.
Name:
Title: [Assistant] Secretary
OCCIDENTAL PETROLEUM CORPORATION
I, the undersigned, a Vice President of the Company, DO HEREBY CERTIFY that
____________ is [a] [the] duly elected and qualified [Assistant] Secretary of
the Company and the signature above is his genuine signature.
WITNESS my hand as of this 18th day of June 2004.
Name:
Title: Vice President
OCCIDENTAL PETROLEUM CORPORATION
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated __________, ____
Reference is made to the Five-Year Credit Agreement dated as of June 18, 2004,
among OCCIDENTAL PETROLEUM CORPORATION, a Delaware corporation (the "Company"),
the banks parties thereto (the "Banks"), JPMorgan Chase Bank and Citicorp USA,
Inc., as co-syndication agents (in such capacity, the "Syndication Agents"), BNP
Paribas, Bank of America, N.A., Barclays Bank PLC and The Royal Bank of Scotland
PLC, as co-documentation agents, and The Bank of Nova Scotia, as administrative
agent (in such capacity, the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.
_____________________________ (the "Assignor") and _____________________________
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a_ % interest in and to all the
Assignor's rights and obligations under the Credit Agreement as of the Effective
Date (as defined below) (including, without limitation, such percentage interest
in the Revolving Credit Commitment of the Assignor on the Effective Date and
such percentage interest in the Revolving Credit Loans [and Competitive Loans],
if any, owing to the Assignor outstanding on the Effective Date together with
such percentage interest in all unpaid interest with respect to such Revolving
Credit Loans [and Competitive Loans] and Facility Fees, if any, accrued to the
Effective Date and such percentage interest in the Revolving Credit Note [and
the Competitive Note] held by the Assignor [excluding, however, any interest in
the Competitive Loans owing to the Assignor outstanding on the Effective Date or
in the unpaid interest with respect to such Competitive Loans or in the
Competitive Note held by the Assignor]).
2. The Assignor (i) represents that as of the date hereof, its Revolving
Credit Commitment (without giving effect to assignments thereof which have not
yet become effective) is $_____ and the outstanding balance of its Revolving
Credit Loans (unreduced by any assignments thereof which have not yet become
effective) is $_____ [and the outstanding balance of its Competitive Loans
(unreduced by any assignments thereof which have not yet become effective) is
$_____]; (ii) makes no representation or warranty with respect to, and assumes
no responsibility with respect to any statements, warranties or representations
made by the Company in or in connection with, the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (iv) makes no representation or warranty and
assumes no responsibility
2
with respect to the financial condition of the Company or the performance or
observance by the Company of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto; and (v) attaches
the Revolving Credit Note [and the Competitive Note] held by it and requests
that the Administrative Agent exchange such Note[s] for a new Revolving Credit
Note [and a new Competitive Note] payable to the Assignee in a principal amount
equal to ___________ [and _________, respectively] [, and a new Revolving Credit
Note [and a new Competitive Note] payable to the Assignor in a principal amount
equal to _________ and _________, respectively].
3. The Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (ii) confirms that it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements and other documents referred to in Section 5.01(e), Section
6.01(a)(i), Section 6.01(a)(ii) and Section 6.01(a)(v) thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon any Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes each of the Syndication Agents
and the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Syndication Agents or the Administrative Agent, as the case may be, by the terms
thereof, together with such powers as are reasonably incidental thereto; (vi)
agrees that it will perform in accordance with their terms all the obligations
of the Assignor under the Credit Agreement, assumed by it under this Assignment
and Acceptance, which by the terms of the Credit Agreement are required to be
performed by it as a Bank; [and] (vii) agrees that it will keep confidential all
information with respect to the Company furnished to it by the Company or the
Assignor (other than information generally available to the public or otherwise
available to the Assignor on a nonconfidential basis) [; and (viii) attaches the
forms referred to in Section 10.06(g) of the Credit Agreement as to the
Assignee's complete exemption from United States withholding taxes with respect
to all payments to be made to the Assignee under the Credit Agreement 1].
4. The effective date for this Assignment and Acceptance shall be __________
(the "Effective Date") 2. Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent pursuant to Section 10.06(e) of the Credit
Agreement.
5. Upon such acceptance and recording, from and after the Effective Date, (i)
the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this
- -------------------------
1 If the Assignee is organized under the laws of a jurisdiction outside the
United States.
2 See Section 10.06(c). Such date shall be at least five Business Days after
the execution of this Assignment and Acceptance and delivery thereof to the
Administrative Agent.
3
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement (except as provided in Section 2.12(b), Section 10.02 and
Section 10.07 thereof).
6. Upon such acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and Assignee shall, directly between themselves, make
all appropriate adjustments in payments received from the Administrative Agent
for periods prior to the Effective Date or with respect to the making of this
assignment.
7. Attached hereto is a Schedule containing the information in respect of the
Assignee that is set forth in Schedule II to the Credit Agreement in respect of
each Bank.
8. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
[NAME OF ASSIGNOR]
By
----------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
----------------------------
Name:
Title:
Accepted this ____ day
of ___________ , ____
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By
----------------------------
Name:
Title:
EXHIBIT H
[[NYCORP:2405148v1::07/08/04--06:55 p]]
[LETTERHEAD OF ROBERT E. SAWYER, ESQ.,
COUNSEL TO THE COMPANY]
June 18, 2004
To each of the Banks parties
to the Credit Agreement
hereinafter referred to,
to JPMorgan Chase Bank,
as Syndication Agent, and
to The Bank of Nova Scotia, as
Administrative Agent
Re: Occidental Petroleum Corporation
Five-Year Credit Agreement dated as of
June 18, 2004
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental Petroleum Corporation, a
Delaware corporation (the "Company"), and have acted as counsel to the Company
in connection with the negotiation, execution and delivery by the Company of the
following agreement and documents:
(a) Five-Year Credit Agreement dated as of June 18, 2004 (the "Credit
Agreement"), among Occidental Petroleum Corporation, a Delaware corporation (the
"Company"), the banks parties thereto (collectively, the "Banks", and
individually, a "Bank"), JPMorgan Chase Bank and Citicorp USA, Inc., as
co-syndication agents (in such capacity, the "Syndication Agents"), BNP Paribas,
Bank of America, N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC, as
co-documentation agents (in such capacity, the "Documentation Agents"), and The
Bank of Nova Scotia, as administrative agent (in such capacity, the
"Administrative Agent");
(b) [ ] separate Competitive Notes dated June 18, 2004, issued by the Company
pursuant to Section 2.05 of the Credit Agreement and payable to the order of
each of the Competitive Bid Banks, respectively; and
(c) [ ] separate Revolving Credit dated June 18, 2004, issued by the Company
pursuant to Section 2.05 of the Credit Agreement and payable to the order of
each of the Banks, respectively (the Competitive Notes and the Revolving Credit
Notes collectively, the "Notes").
This opinion is being delivered to you pursuant to Section 7.01(d) of the Credit
Agreement. Unless otherwise defined herein, terms used herein have the meanings
assigned to such terms in the Credit Agreement.
2
I am familiar with the corporate proceedings taken by the Company in connection
with the negotiation and authorization of the Credit Agreement and the Notes and
the transactions contemplated thereby. In addition, I have made such inquiry of
such officers and attorneys of the Company and its Subsidiaries and examined
such corporate records, certificates of officers of the Company, of officers of
the Company's Subsidiaries and of public officials and such other documents and
such questions of law and fact as I have considered necessary or appropriate to
form the basis of the opinions hereinafter expressed.
Based upon, and subject to, the foregoing and the four final paragraphs hereof,
I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware; and the Company has all
requisite corporate power and authority (a) to own its assets and to carry on
the business in which it is engaged, (b) to execute, deliver and perform its
obligations under the Credit Agreement and the Notes, (c) to borrow in the
manner and for the purpose contemplated by the Credit Agreement, and (d) to
issue the Notes in the manner and for the purpose contemplated by the Credit
Agreement.
2. The execution and delivery by the Company of the Credit Agreement and the
Notes, the performance by the Company of its obligations under the Credit
Agreement and the Notes, the Borrowings by the Company in the manner and for the
purpose contemplated by the Credit Agreement, and the issuance by the Company of
the Notes in the manner and for the purpose contemplated by the Credit Agreement
have been duly authorized by all necessary corporate action (including any
necessary stockholder action) on the part of the Company, and do not and will
not (a) violate any provision of any Federal, New York or California law, rule
or regulation (including, without limitation, Regulation U and Regulation X)
presently in effect having applicability to the Company (or any Specified
Subsidiary), or of any order, writ, judgment, decree, determination or award
known to me which is presently in effect and which has applicability to the
Company (or any Specified Subsidiary), or of the charter or By-laws of the
Company (or any Specified Subsidiary), or (b), subject to the Company's
compliance with any applicable covenants pertaining to its incurrence of
unsecured indebtedness, result in a breach of or constitute a default under any
indenture or loan or credit agreement, or any other agreement or instrument, in
each case known to me, to which the Company or any Specified Subsidiary is a
party or by which the Company or any Specified Subsidiary or its respective
properties may be bound or affected, or (c) to the best of my knowledge, result
in, or require, the creation or imposition of any Lien of any nature upon or
with respect to any of the properties now owned or hereafter acquired by the
Company (other than any right of set-off or banker's lien or attachment that any
Bank or other holder of a Note may have under applicable law), and, to the best
of my knowledge, the Company is not in default under or in violation of its
charter or By-laws as presently in effect. The Borrowing on the date hereof of
Loans under the Credit Agreement equal to the Total Commitment under the Credit
Agreement would not result in a breach of or constitute a default under any
indenture or loan or credit agreement, or any other agreement or instrument, in
each case known to me, to which the Company or any Specified Subsidiary is a
party or by which
3
the Company or any Specified Subsidiary or its respective properties may be
bound or affected.
3. The Credit Agreement and the Notes have been duly executed and delivered by
the Company and each constitutes the legal, valid and binding obligation of the
Company, and each is enforceable against the Company in accordance with its
terms, and, if the Credit Agreement and the Notes had referred to California law
rather than New York law as the governing law, or if a California court having
jurisdiction were to decide that, notwithstanding the reference to New York law,
the Credit Agreement and the Notes should be construed in accordance with, and
governed by, California law, then the Credit Agreement and the Notes each would
be enforceable against the Company in accordance with its terms.
4. Except as set forth in the Company's annual report on Form 10-K for the year
ended December 31, 2003, and its quarterly report on Form 10-Q for the quarter
ended March 31, 2004, to the Securities and Exchange Commission, and except as
disclosed in writing to the Banks prior to the Effective Date, there are, to the
best of my knowledge, no actions, suits, proceedings or investigations pending
or threatened against the Company or any Subsidiary of the Company or any of its
respective properties before any court, governmental agency or regulatory
authority (Federal, state, local or foreign) which are likely (to the extent not
covered by insurance) to have a material adverse effect on the present
consolidated financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole, or materially to impair the Company's ability to
perform its obligations under the Credit Agreement or the Notes.
5. No authorization, consent, approval, license or formal exemption from, nor
any filing, declaration or registration with, any Federal, New York or
California court, governmental agency or regulatory authority including, without
limitation, the Securities and Exchange Commission, or with any securities
exchange located in the United States, is or will be required in connection with
the execution, delivery and performance by the Company of the Credit Agreement
and the Notes, the Borrowings by the Company in the manner and for the purpose
contemplated by the Credit Agreement, or the issuance by the Company of the
Notes in the manner and for the purpose contemplated by the Credit Agreement,
except for informational reports the failure to file which does not affect the
validity of the Credit Agreement or the Notes, and except as may be required in
the ordinary course to comply with the affirmative covenants in the Credit
Agreement.
6. To the best of my knowledge, neither the Company nor any Related Person to
the Company has incurred any liability to the PBGC under Title IV of ERISA which
has not been fully discharged.
7. The Company is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
8. The Company is not a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a
4
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
I am a member of the California and New York Bars and for purposes of this
opinion do not hold myself out as an expert on, nor do I express any opinion as
to, the laws of any jurisdiction other than the laws of the State of California,
the laws of the State of New York, the Federal laws of the United States and the
General Corporation Law of the State of Delaware.
In rendering the opinion set forth in numbered paragraph 3 above with respect to
the Credit Agreement, I have assumed, with your approval, the due authorization,
execution and delivery of the Credit Agreement on the part of all parties to the
Credit Agreement, other than the Company, and the legality, validity, binding
effect on, and enforceability against, all such other parties of the Credit
Agreement. That opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, (ii) the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law, (iii) the
effect of general rules of contract law that limit the enforceability of
provisions requiring indemnification of a party for liability for its own action
or inaction to the extent the action or inaction involves gross negligence,
recklessness, willful misconduct or unlawful conduct, and (iv) the possible
challenge to the provisions of the Credit Agreement and the Notes which provide
for a higher rate of interest after a default in payment of principal or
interest under California Civil Code Section 1671, which renders invalid
liquidated damages provisions in contracts if such provisions are found to have
been unreasonable under the circumstances existing at the time the contract was
made.
With your approval, I have relied, as to certain matters of fact, on information
obtained from public officials, officers of the Company and its Subsidiaries and
other sources believed by me to be responsible, and I have assumed that the
signatures on all documents examined by me are genuine, that all documents
submitted to me as originals are authentic and that all documents submitted to
me as copies conform with the originals, which assumptions I have not
independently verified. Also with your approval, I have relied, as to certain
legal matters, on advice of other lawyers employed by the Company who are more
familiar with such matters.
This opinion is rendered only to the Banks, the Syndication Agents, the
Documentation Agents and the Administrative Agent and is solely for their
benefit in connection with the Credit Agreement. This opinion may not be relied
upon by the Banks, the Syndication Agents, the Documentation Agents or the
Administrative Agent for any other purpose or by any other person, firm or
corporation for any purpose without my prior written consent.
Very truly yours,
5
EXHIBIT I
[LETTERHEAD OF CRAVATH, SWAINE & MOORE LLP, SPECIAL
COUNSEL TO THE AGENTS]
June [ ], 2004
OCCIDENTAL PETROLEUM CORPORATION
FIVE-YEAR CREDIT AGREEMENT DATED AS OF JUNE [ ], 2004
Dear Ladies and Gentlemen:
We have acted as special counsel for the Agents under and as defined in the
Five-Year Credit Agreement dated as of June [ ], 2004 (the "Credit Agreement"),
among Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
the banks parties thereto (collectively, the "Banks", and individually, a
"Bank"), JPMorgan Chase Bank and Citicorp USA, Inc., as co-syndication agents
(in such capacity, the "Syndication Agents"), BNP Paribas, Bank of America,
N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC, as co-documentation
agents (in such capacity, the "Documentation Agents"), and The Bank of Nova
Scotia, as administrative agent (in such capacity, the "Administrative Agent").
In that connection, we have examined originals or copies certified or otherwise
identified to our satisfaction of the Credit Agreement and such other documents
as we have deemed necessary for purposes of this opinion.
Based upon the foregoing, and assuming that the Credit Agreement and the Notes
(as defined in the Credit Agreement) have been duly authorized, executed and
delivered by the Company, the Banks and the Agents in conformity with all laws
applicable to them, we are of the opinion that the Credit Agreement and the
Notes constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws affecting creditors' rights generally
from time to time in effect and subject to general principles of equity
(including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law). With respect to the foregoing opinion, (i) insofar as
provisions contained in the Credit Agreement provide for indemnification, the
enforceability thereof may be limited by public policy considerations, (ii) the
availability of a decree for specific performance or an injunction is subject to
the discretion of the court requested to issue any such decree or injunction and
(iii) we express no opinion as to the effect (if any) of any law of any
jurisdiction (other than the State of New York) which limits the rate of
interest that any Bank may charge or collect. We express no opinion as to
Section 10.13 of the Credit Agreement insofar as such Section relates to the
subject matter jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the Credit
Agreement or provides for the waiver of an inconvenient forum.
2
We are members of the Bar of the State of New York and the foregoing opinion is
limited to the laws of the State of New York and the Federal laws of the United
States of America.
This opinion is rendered solely to you in connection with the above matter. This
opinion may not be relied upon for any other purpose or relied upon by or
furnished to any other person without our prior written consent.
Very truly yours,
To the Banks, the Syndication Agents,
the Documentation Agents,
and the Administrative Agent
referred to above,
c/o JPMorgan Chase Bank, as Syndication Agent
EXHIBIT J
ADDENDUM
Reference is made to the Five-Year Credit Agreement dated as of June 18,
2004 (the "Credit Agreement"), among Occidental Petroleum Corporation, a
Delaware corporation, the banks parties thereto, JPMorgan Chase Bank and
Citicorp USA, Inc., as co-syndication agents, BNP Paribas, Bank of America,
N.A., Barclays Bank PLC and The Royal Bank of Scotland PLC, as co-documentation
agents, and The Bank of Nova Scotia, as administrative agent. Capitalized terms
used and not defined shall have the meanings assigned to such terms in the
Credit Agreement.
This instrument is submitted by the undersigned pursuant to Section 10.17
of the Credit Agreement and is an Addendum as defined in the Credit Agreement.
1. The undersigned hereby agrees to become a party to the Credit Agreement
with the Revolving Credit Commitment set forth below. The undersigned is [not]
listed on Schedule I to the Credit Agreement.
- -------------------------------------------------- --------------
Revolving
Credit
- -------------------------------------------------- --------------
- -------------------------------------------------- --------------
Commitment: $_________
- -------------------------------------------------- --------------
1 2. The following information with respect to the undersigned is supplied
for purposes of Schedule II to the Credit Agreement:
Name of Bank:
----------------------------
Address:
----------------------------
Attention:
----------------------------
Tel. No.
----------------------------
Telecopier No.
----------------------------
3. This instrument may be executed by the undersigned and accepted by the
Company on separate counterparts, each of which counterparts shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its officer thereunto duly authorized as of the date set forth
below.
Date: [__________], 20___ [Name of Bank]
- -------------------------
1 If Schedule II to the Credit Agreement already contains this information,
this item need note be completed.
2
By
--------------------------------
Name:
Title:
Accepted:
OCCIDENTAL PETROLEUM CORPORATION
By
--------------------------------
Name:
Title:
Date: [__________], 20___
EXHIBIT K
ADMINISTRATIVE QUESTIONNAIRE
OCCIDENTAL PETROLEUM CORPORATION
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
NOTE TO BANKS: PLEASE FORWARD THIS COMPLETED FORM AS SOON AS POSSIBLE
TO THE LOAN ADMINISTRATION DEPARTMENT:
The Bank of Nova Scotia,
600 Peachtree N.E., Suite 2700
Atlanta, Georgia 30308-2214
Attn:
PLEASE TYPE ALL INFORMATION
SYNDICATION AGENTS: JPMorgan Chase Bank
600 Travis Street
20th Floor
Houston, TX 77002
Attention: Ms. Beth Lawrence
TELECOPIER: (713) 216-8870
CONTACTS: Ms. Beth Lawrence - (713) 216-5968
Managing Director
Ms. June Brand - (713) 216-4327
Citicorp USA Inc.
[address]
Attention: [ ]
TELECOPIER: [ ]
CONTACTS: [ ]
[ ]
Ms. June Brand - (713) 216-4327
ADMINISTRATIVE AGENT: The Bank of Nova Scotia
1100 Louisiana, Suite 3000
Houston, TX 77002
TELECOPIER: (713) 752-2425
2
CONTACTS: Greg George - (713) 759-3430
Director - Energy
Demetria January - (404) 877-1578
Loan Operations Officer
Full Legal Name of your Bank:
------------------------------
Exact name of signing officer:
------------------------------
Title of signing officer:
------------------------------
Business address for delivery of
execution copies of credit
agreement (Please do not
use P.O. Box address; hand
deliveries cannot be made):
------------------------------
Signing officer's phone no.:
------------------------------
Alternate officer contract:
------------------------------
Alternate officer's phone no:
------------------------------
Hard-copy documents and notices should be sent to the following account officer
designated by your bank:
Officer's name:
------------------------------
Title:
------------------------------
Street address
(No P.O. Boxes please):
------------------------------
City, State, Zip:
------------------------------
3
GENERAL OPERATIONAL INFORMATION
OPERATING CONTACTS NAME PHONE NO.
Loan Department:
--------------------------------------------------
Loan Administrator:
------------- --------------------------------------------------
Other:
MOVEMENT OF FUNDS: Wire Fed Funds to:
TO ADMINISTRATIVE AGENT: The Bank of Nova Scotia
(ABA 02600-2532)
One Liberty Plaza
New York, New York 10006
For Credit A/C 0606634
The Bank of Nova Scotia
Atlanta Agency
Reference: Occidental Petroleum Corporation
TO YOU: WIRE FED FUNDS TO:
Attention:
Reference:
Publicity: How would you like your bank's name to appear in any tombstone
advertisements?
----------------------------------------------
Tax Identification Number:
-----------------------------------------------------
4
PRIMARY CONTACT INFORMATION
We will send all telecopies to a single number (the Primary or Alternate Contact
numbers listed below) at the banking location you designate. These contacts are
those you designate for critical telecopies (rates, loan amounts, paydowns,
etc.).
1. Your bank's primary contacts for telecopies:
PRIMARY TELECOPIER NO.:
ALTERNATE TELECOPIER NO.:
2. Your bank's primary contacts:
Name Phone No. Department
(1)
- --------------------------------------------------------------------------------
(2)
- --------------------------------------------------------------------------------
(If at any time any of the above information changes, please advise the
Administrative Agent by written notice).
5
PLEASE COMPLETE THE FOLLOWING INFORMATION
FOR COMPETITIVE AUCTIONS ONLY
ADMINISTRATIVE AGENT: The Bank of Nova Scotia
600 Peachtree St. N.E., Suite 2700
Atlanta, Georgia 30308-2214
TELECOPIER:
CONTACTS:
PRIMARY CONTACT
COMPETITIVE AUCTIONS
Bank Name:
---------------------------------------------
Address:
---------------------------------------------
Primary Contact:
---------------------------------------------
Title:
---------------------------------------------
Department:
---------------------------------------------
Telephone Number:
---------------------------------------------
Telecopier Number:
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EXHIBIT 10.1
EMPLOYMENT AGREEMENT AMENDMENT
This Employment Agreement Amendment (hereinafter referred to as "this
Amendment") is made on this 19th day of July, 2004, by and between Occidental
Petroleum Corporation, a Delaware corporation (hereinafter referred to as
"Employer"), and Dale R. Laurance (hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Employee has been serving as President of Employer pursuant to a
written agreement dated as of November 17, 2000, (the "2000 Employment
Agreement"); and
WHEREAS, Employee has informed Employer that Employee wishes to retire from
his current position as President of Employer, and Employer wishes to ensure an
orderly management transition and also retain access to Employee's background
and expertise; and
WHEREAS, therefore, the parties now desire to amend the 2000 Employment
Agreement, as provided herein, to provide for such a retirement arrangement
designed to satisfy the foregoing criteria; and
WHEREAS, Employer and Employee have agreed to such arrangement, on the
terms and conditions specified in this Amendment; and
WHEREAS, in order to formalize and conclude the foregoing arrangement, the
parties now desire to enter into this Amendment, and thereby amend the 2000
Employment Agreement as specified herein, in order that the 2000 Employment
Agreement, as amended herein, shall specify the rights and obligations of the
parties with respect to such arrangement; and
WHEREAS, the 2000 Employment Agreement, as amended by this Amendment, is
hereinafter referred to in this Amendment as, "the Amended 2000 Employment
Agreement";
1 of 5
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, Employer and Employee hereby agree as follows:
1. The Retirement Arrangement: Timeframe, Duties and Services.
-----------------------------------------------------------
(a) The Pre-Retirement Period ("Phase I"). Effective as of the date
hereof, Employee shall continue to be employed under the terms and conditions of
the Amended 2000 Employment Agreement for a period of time, hereafter referred
to as "Phase I", commencing on the date hereof and continuing through December
31, 2004, subject to the early termination provisions of the Amended 2000
Employment Agreement. During Phase I, Employee shall, subject to clause 1(d)
below, serve as President of Employer. At the end of Phase I, Employee will
cease to be an employee of Employer.
(b) The Post-Retirement Period ("Phase II"). Unless the Amended 2000
Employment Agreement terminates pursuant to clause 11(a) of that Agreement, at
the earlier of (i) the date as of which Phase I is terminated (other than as a
result of clause 11(a) of the Amended 2000 Employment Agreement), or (ii) on
January 1, 2005, Employee shall commence the post-retirement period of his
relationship hereunder as a consultant for the period of time specified in the
Consulting Agreement (the "Consulting Agreement") attached hereto as Annex I. As
part of this Amendment, the parties have executed the Consulting Agreement with
an effective date of January 1, 2005.
(c) Compliance with Company Policies. In performing all duties and
services hereunder, Employee shall comply with Employer's Code of Business
Conduct and Corporate Policies, as the same may be amended from time to time.
(d) Change of Duties and Services. During Phase I Employer may change
or alter the duties and services of Employee at any time as it may from
time-to-time elect in its sole discretion, and in such event Employee shall
serve in such other capacity and perform such other duties and services for
Employer or any of the subsidiaries of Employer or any corporation affiliated
with Employer as Employer may direct; provided, however, that no such change or
alteration shall affect the salary and bonus provisions set forth in Sections 4
and 5 of the Amended 2000 Employment Agreement.
2 of 5
2. Specific Provision Amendments to the 2000 Employment Agreement.
---------------------------------------------------------------
In order to effectuate the purpose and intent of this Amendment, the
following provisions of the 2000 Employment Agreement are hereby amended in the
manner specified below:
(a) Section 1 Term. The first sentence of Section 1 ("Term") of the
2000 Employment Agreement is hereby deleted in its entirety, and the
following sentence is substituted in its place:
"This Agreement shall be in effect for a period of time (the
"Term") commencing on November 9, 2000 (the "Effective Date") and
expiring on December 31, 2004, unless earlier terminated in accordance
with the provisions hereof."
(b) Section 6 Deferred Compensation. The second sentence of Section
6 ("Deferred Compensation") of the 2000 Employment Agreement, commencing
with the words, "Any such deferral..." and ending with the words,
"...Deferred Compensation Plan" is hereby deleted in its entirety, and the
following sentence substituted in its place:
"Any such deferred compensation shall not be forfeitable and
shall bear interest at a rate no less favorable than the highest rate
then made available to any other senior officer who is provided with
the right to defer compensation under the COMPANY's deferred
compensation arrangements."
(c) Section 7 Employee Benefits. The reference to "11(d)" in the
second paragraph of Section 7 ("Employee Benefits") of the 2000 Employment
Agreement (i.e. the paragraph commencing with the words, "If EMPLOYEE's
employment..." and ending with the words, "... of such payments.") is
hereby deleted, and the word "or" is moved to appear between "11(b)" and
"11(c)", so that the amended phrase will provide: "If EMPLOYEE's employment
is terminated hereunder, pursuant to Section 11(b) or 11(c) hereof, ..."
3 of 5
(d) New Subsection 8 (f) Vesting of Stock Incentives. The following
new provision is hereby added to Section 8 ("Supplemental Benefits"):
"(f) Vesting of Stock Incentives. All of EMPLOYEE's outstanding
stock options, restricted stock and long-term stock incentives shall
be and become fully vested effective as of 11:59 p.m. (PST) on
December 31, 2004; provided, however, that the amount or amounts
actually paid to EMPLOYEE in respect of any performance stock awards,
if any, will be as determined by the Executive Compensation and Human
Resources Committee (the "Committee") of the Board of Directors of
COMPANY at the end of each relevant performance period designated in
such awards, and any such payments will be made at the time specified
in such awards (i.e. after the designated performance period and after
such determination by the Committee)."
(e) Subsection 11(d) "Constructive Termination". Subsection 11(d)
"Constructive Termination" of the 2000 Employment Agreement is hereby
deleted in its entirety.
3. Non-Disclosure of Information.
------------------------------
Employee agrees that he will not divulge to any person, nor use to the
detriment of Employer or any of its affiliates or subsidiaries, nor use in any
business or process of manufacture competitive with or similar to any business
or process of manufacture of Employer or any of its affiliates or subsidiaries,
at any time during employment by Employer or thereafter, any trade secrets or
confidential information obtained during the course of his employment with
Employer, without first obtaining the written consent of Employer (which consent
shall not be unreasonably withheld to the extent any disclosure of Employee is
required by applicable law or regulation or applicable order of any court or
governmental agency).
4. Prior Agreement.
----------------
The Amended 2000 Employment Agreement supersedes and replaces any and all
previous agreements and understandings between the parties, including without
limitation the 2000 Employment Agreement; provided, however, that Employee shall
be paid the salary and retain the bonus entitlement for 2004 in each case as
provided in Sections 4 and 5 of the 2000 Employment Agreement.
4 of 5
IN WITNESS WHEREOF, the parties hereto have executed this Amended 2000
Employment Agreement the day and year first above written.
OCCIDENTAL PETROLEUM CORPORATION
Employer
By: /s/ R. R. IRANI
----------------------------
Dr. Ray R. Irani
/s/ DALE R. LAURANCE
--------------------------------
Dale R. Laurance
Employee
ANNEX I
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective the
1st day of January, 2005, by and between Occidental Petroleum Corporation, a
Delaware Corporation ("OPC") and Dale R. Laurance ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been employed as an employee of OPC since 1984; and
WHEREAS, pursuant to the terms of the Employment Agreement, dated November
17, 2000, as amended July 19, 2004 (the "Amended 2000 Employment Agreement"),
between the Consultant and OPC, Consultant retired from full-time employment
with the Corporation as of December 31, 2004; and
WHEREAS, in recognition of Consultant's unique background with and
knowledge of OPC, the parties now desire to provide for the availability of Dale
R. Laurance solely on a consulting basis;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties agree as follows:
1. Services. Effective as of the date hereof, Consultant shall be
available to render services to OPC as a consultant for the period from January
1, 2005 through December 31, 2009 (the "Consultant Term"). Consultant's
consultation services shall be limited to those services which the Chairman of
the OPC Board of Directors requests from time to time. Consultant shall make
himself available for such consultation services in OPC's offices and elsewhere
as determined by OPC.
2. Compensation. During the Consultant Term, OPC shall compensate
Consultant at the monthly rate of forty-one thousand six hundred sixty-seven
dollars ($41,667) (the "Monthly Retainer"), payable semimonthly. Consultant
shall have no entitlement or expectation of any bonus payment or payments for
his services under this Consulting Agreement.
- 1 -
3. Life Insurance Benefits. Consultant has a specific life insurance
benefit provided under Clause 8(b) of the Amended 2000 Employment Agreement. In
addition to that benefit, during the Consultant Term, OPC shall provide
Consultant with additional life insurance coverage in the amount of one million
thirty thousand dollars ($1,030,000). The life insurance benefits referred to in
this paragraph are the only life insurance benefits which OPC is obligated to
provide to Consultant under this Agreement and the Amended 2000 Employment
Agreement, i.e. the $2,060,000 coverage under Clause 8(b) of the Amended 2000
Employment Agreement and during the Consultant Term the $1,030,000 coverage
specified in this Paragraph 3.
4. Non-Disclosure of Information. Without the prior written consent of
OPC (which consent shall not be unreasonably withheld to the extent any
disclosure by Consultant is required by applicable law or regulation or
applicable order of any court or governmental agency), Consultant shall not
divulge to any person, business, firm, corporation or government entity, nor use
to the detriment of OPC, or any of its subsidiaries, nor use in any business,
venture, or any organization of any kind, or in any process of manufacture,
production or mining, at any time, except as necessary in performing services
for OPC;
(a) Any OPC trade secrets in any form, including without limitation,
all graphic material, forms, documents, data and information; and
(b) Any OPC confidential information in any form, including without
limitation, concerning inventions, discoveries, improvements, methods,
technology, business plans, environmental plans, audits, reviews or other
investigatory processes, procedures and practices, enterprises, exploration,
mining or drilling information, manufacturing information, plant design,
location or operation, financial results, reports or similar information, or any
other OPC confidential information affecting or concerning the business or
operation of OPC or any of its directors, officers or employees developed,
acquired, used by or disclosed to Consultant in the performance of his services
at any time in any capacity for OPC.
5. Maintenance of Documents. Consultant agrees that he will forever keep
in strictest confidence (and will not deliver to anyone else) any and all notes,
notebooks, memoranda, documents, computer discs, manuals, files, and phone lists
and, in general, any and all information and material in his possession or
control affecting or concerning OPC's business or operations.
6. Reimbursement of Expenses. For the term of this Agreement, OPC shall
reimburse Consultant for all of his reasonable and actual business expenses
incurred in connection with providing services specified hereunder, including
providing him with one full-time secretary, who shall be a full-time employee of
OPC and whose salary and benefits shall be paid by, and subject to the approval
of, OPC, and information technology and telecommunications services equivalent
to that he used during his employment at OPC. OPC shall allow Consultant the use
of the OPC corporate aircraft on a "when available" basis (as determined solely
by OPC), subject to Consultant's obligation to reimburse OPC for the costs of
the use of such aircraft when it is used for personal matters, consistent with
the reimbursement policies and practices applicable to OPC Vice Presidents under
such circumstances.
- 2 -
7. Termination. OPC may terminate this Agreement for cause, and
Consultant may terminate this Agreement at any time for any reason upon thirty
(30) days' notice to OPC. This Agreement will terminate automatically upon the
death of Consultant.
8. No Other Severance Benefits. Notwithstanding anything in this
Agreement to the contrary, Consultant hereby acknowledges and agrees that this
Agreement is in lieu of, and because he has entered into this Agreement he is
automatically ineligible for and disqualified from participating in, any and all
plans, programs or arrangements of severance, separation, termination or pay
continuation announced or maintained heretofore or hereafter by OPC or any of
its subsidiary or affiliated companies.
9. Nature of Relationship. Consultant's relationship with OPC shall be
as an independent consultant, and not as an employee.
10. Rights under Amended 2000 Employment Agreement. This Consulting
Agreement shall in no way impair the rights and benefits provided to Consultant
in the Amended 2000 Employment Agreement. Consultant shall retain his stated
entitlement to Oxy payments provided for in such agreement whether or not such
payments take place during the Consultant Term of the Consulting Agreement.
11. No Other Employment Agreements. Except as provided in Section 10
above, as of the date of this Agreement, any other existing employment or
consulting agreement, or any plan, program or arrangement of severance,
separation, termination, or pay continuation, oral, written or implied, between
Consultant and OPC shall be deemed to be terminated and of no further force or
effect. Further, the parties agree and acknowledge that this Agreement
constitutes and contains the entire agreement and understanding of the parties
concerning the subject matters hereof, and supersedes and replaces all prior
negotiations, proposed agreements, or agreements, written or oral or implied.
The parties each acknowledge, one to the other, that no other party, nor any
agent or attorney of any other party, has made any promise, representation, or
warranty whatsoever (express, implied or statutory), not contained herein,
concerning the subject matters hereof to induce them to execute this Agreement
and that they have not executed this Agreement in reliance upon any such
promise, representation, or warranty not contained herein. The parties further
agree that any oral representations or modifications concerning this instrument
shall be of no force or effect, and that this Agreement can only be modified by
a writing, signed by all of the parties hereto.
12. Arbitration. In the event of any dispute rising out of this Agreement,
Consultant and OPC agree that any such dispute shall be decided exclusively by
neutral binding arbitration conducted in Los Angeles, California, in accordance
with the then current rules of the American Arbitration Association in effect in
Los Angeles, California, applicable to employment disputes. In the event the
parties are unable to agree upon an arbitrator, they shall select from a list of
seven (7) arbitrators designated by the American Arbitration Association. This
Agreement to resolve any disputes by binding arbitration shall extend to claims
by Consultant against any OPC Releasees and shall apply as well, to the full
extent permitted by law, to claims arising out of local, state and federal
common law, statutes and ordinances. However, Consultant and OPC shall retain
whatever rights to injunctive relief as may be available under applicable laws
concerning any claims, and any dispute or claim in connection with the receipt
of
- 3 -
benefits under any benefit plan shall be governed by the claims procedures under
the applicable plan.
13. Severability. Should any part of this Agreement, with the exception of
Paragraphs 1 and 2, be declared or determined by any court or other tribunal of
appropriate jurisdiction to be invalid or unenforceable, any such invalid or
unenforceable part, term or provision shall be stricken and severed from this
Agreement and all other terms of the Agreement shall remain in full force and
effect to the fullest extent permitted by law.
14. Assignment. This Agreement is a personal service arrangement with
Consultant, and, as such, is not assignable by him with the exception of
Consultant's right to designate a payee for the payments hereunder. This
Agreement shall be binding upon Consultant, his heirs, executors and assigns and
upon OPC, its successors and assigns.
15. Governing Law. This Agreement is made and entered into in the State of
California, and shall be governed by and construed in accordance with the laws
of the State of California, without regard to principles of conflict of laws.
16. Change of Control of Employer. No Change of Control of Employer (as
defined below) shall be deemed to amend the terms and conditions of this
Agreement. For purposes of this Agreement, a "Change of Control of Employer"
shall be deemed to have occurred if, after the date of this Agreement, any
person, corporation or other entity becomes the beneficial owner, directly or
indirectly, of 25% or more of the combined voting power of Employer's then
outstanding voting securities.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on July 19, 2004.
OCCIDENTAL PETROLEUM CORPORATION
Employer
By:
----------------------------
Dr. Ray R. Irani
CONSULTANT
--------------------------------
Dale R. Laurance
- 4 -
EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective the
1st day of January, 2005, by and between Occidental Petroleum Corporation, a
Delaware Corporation ("OPC") and Dale R. Laurance ("Consultant").
WITNESSETH:
WHEREAS, Consultant has been employed as an employee of OPC since 1984; and
WHEREAS, pursuant to the terms of the Employment Agreement, dated November
17, 2000, as amended July 19, 2004 (the "Amended 2000 Employment Agreement"),
between the Consultant and OPC, Consultant retired from full-time employment
with the Corporation as of December 31, 2004; and
WHEREAS, in recognition of Consultant's unique background with and
knowledge of OPC, the parties now desire to provide for the availability of Dale
R. Laurance solely on a consulting basis;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, the parties agree as follows:
1. Services. Effective as of the date hereof, Consultant shall be
available to render services to OPC as a consultant for the period from January
1, 2005 through December 31, 2009 (the "Consultant Term"). Consultant's
consultation services shall be limited to those services which the Chairman of
the OPC Board of Directors requests from time to time. Consultant shall make
himself available for such consultation services in OPC's offices and elsewhere
as determined by OPC.
2. Compensation. During the Consultant Term, OPC shall compensate
Consultant at the monthly rate of forty-one thousand six hundred sixty-seven
dollars ($41,667) (the "Monthly Retainer"), payable semimonthly. Consultant
shall have no entitlement or expectation of any bonus payment or payments for
his services under this Consulting Agreement.
- 1 -
3. Life Insurance Benefits. Consultant has a specific life insurance
benefit provided under Clause 8(b) of the Amended 2000 Employment Agreement. In
addition to that benefit, during the Consultant Term, OPC shall provide
Consultant with additional life insurance coverage in the amount of one million
thirty thousand dollars ($1,030,000). The life insurance benefits referred to in
this paragraph are the only life insurance benefits which OPC is obligated to
provide to Consultant under this Agreement and the Amended 2000 Employment
Agreement, i.e. the $2,060,000 coverage under Clause 8(b) of the Amended 2000
Employment Agreement and during the Consultant Term the $1,030,000 coverage
specified in this Paragraph 3.
4. Non-Disclosure of Information. Without the prior written consent of
OPC (which consent shall not be unreasonably withheld to the extent any
disclosure by Consultant is required by applicable law or regulation or
applicable order of any court or governmental agency), Consultant shall not
divulge to any person, business, firm, corporation or government entity, nor use
to the detriment of OPC, or any of its subsidiaries, nor use in any business,
venture, or any organization of any kind, or in any process of manufacture,
production or mining, at any time, except as necessary in performing services
for OPC;
(a) Any OPC trade secrets in any form, including without limitation,
all graphic material, forms, documents, data and information; and
(b) Any OPC confidential information in any form, including without
limitation, concerning inventions, discoveries, improvements, methods,
technology, business plans, environmental plans, audits, reviews or other
investigatory processes, procedures and practices, enterprises, exploration,
mining or drilling information, manufacturing information, plant design,
location or operation, financial results, reports or similar information, or any
other OPC confidential information affecting or concerning the business or
operation of OPC or any of its directors, officers or employees developed,
acquired, used by or disclosed to Consultant in the performance of his services
at any time in any capacity for OPC.
5. Maintenance of Documents. Consultant agrees that he will forever keep
in strictest confidence (and will not deliver to anyone else) any and all notes,
notebooks, memoranda, documents, computer discs, manuals, files, and phone lists
and, in general, any and all information and material in his possession or
control affecting or concerning OPC's business or operations.
6. Reimbursement of Expenses. For the term of this Agreement, OPC shall
reimburse Consultant for all of his reasonable and actual business expenses
incurred in connection with providing services specified hereunder, including
providing him with one full-time secretary, who shall be a full-time employee of
OPC and whose salary and benefits shall be paid by, and subject to the approval
of, OPC, and information technology and telecommunications services equivalent
to that he used during his employment at OPC. OPC shall allow Consultant the use
of the OPC corporate aircraft on a "when available" basis (as determined solely
by OPC), subject to Consultant's obligation to reimburse OPC for the costs of
the use of such aircraft when it is used for personal matters, consistent with
the reimbursement policies and practices applicable to OPC Vice Presidents under
such circumstances.
- 2 -
7. Termination. OPC may terminate this Agreement for cause, and
Consultant may terminate this Agreement at any time for any reason upon thirty
(30) days' notice to OPC. This Agreement will terminate automatically upon the
death of Consultant.
8. No Other Severance Benefits. Notwithstanding anything in this
Agreement to the contrary, Consultant hereby acknowledges and agrees that this
Agreement is in lieu of, and because he has entered into this Agreement he is
automatically ineligible for and disqualified from participating in, any and all
plans, programs or arrangements of severance, separation, termination or pay
continuation announced or maintained heretofore or hereafter by OPC or any of
its subsidiary or affiliated companies.
9. Nature of Relationship. Consultant's relationship with OPC shall be
as an independent consultant, and not as an employee.
10. Rights under Amended 2000 Employment Agreement. This Consulting
Agreement shall in no way impair the rights and benefits provided to Consultant
in the Amended 2000 Employment Agreement. Consultant shall retain his stated
entitlement to Oxy payments provided for in such agreement whether or not such
payments take place during the Consultant Term of the Consulting Agreement.
11. No Other Employment Agreements. Except as provided in Section 10
above, as of the date of this Agreement, any other existing employment or
consulting agreement, or any plan, program or arrangement of severance,
separation, termination, or pay continuation, oral, written or implied, between
Consultant and OPC shall be deemed to be terminated and of no further force or
effect. Further, the parties agree and acknowledge that this Agreement
constitutes and contains the entire agreement and understanding of the parties
concerning the subject matters hereof, and supersedes and replaces all prior
negotiations, proposed agreements, or agreements, written or oral or implied.
The parties each acknowledge, one to the other, that no other party, nor any
agent or attorney of any other party, has made any promise, representation, or
warranty whatsoever (express, implied or statutory), not contained herein,
concerning the subject matters hereof to induce them to execute this Agreement
and that they have not executed this Agreement in reliance upon any such
promise, representation, or warranty not contained herein. The parties further
agree that any oral representations or modifications concerning this instrument
shall be of no force or effect, and that this Agreement can only be modified by
a writing, signed by all of the parties hereto.
12. Arbitration. In the event of any dispute rising out of this Agreement,
Consultant and OPC agree that any such dispute shall be decided exclusively by
neutral binding arbitration conducted in Los Angeles, California, in accordance
with the then current rules of the American Arbitration Association in effect in
Los Angeles, California, applicable to employment disputes. In the event the
parties are unable to agree upon an arbitrator, they shall select from a list of
seven (7) arbitrators designated by the American Arbitration Association. This
Agreement to resolve any disputes by binding arbitration shall extend to claims
by Consultant against any OPC Releasees and shall apply as well, to the full
extent permitted by law, to claims arising out of local, state and federal
common law, statutes and ordinances. However, Consultant and OPC shall retain
whatever rights to injunctive relief as may be available under applicable laws
concerning any claims, and any dispute or claim in connection with the receipt
of
- 3 -
benefits under any benefit plan shall be governed by the claims procedures under
the applicable plan.
13. Severability. Should any part of this Agreement, with the exception of
Paragraphs 1 and 2, be declared or determined by any court or other tribunal of
appropriate jurisdiction to be invalid or unenforceable, any such invalid or
unenforceable part, term or provision shall be stricken and severed from this
Agreement and all other terms of the Agreement shall remain in full force and
effect to the fullest extent permitted by law.
14. Assignment. This Agreement is a personal service arrangement with
Consultant, and, as such, is not assignable by him with the exception of
Consultant's right to designate a payee for the payments hereunder. This
Agreement shall be binding upon Consultant, his heirs, executors and assigns and
upon OPC, its successors and assigns.
15. Governing Law. This Agreement is made and entered into in the State of
California, and shall be governed by and construed in accordance with the laws
of the State of California, without regard to principles of conflict of laws.
16. Change of Control of Employer. No Change of Control of Employer (as
defined below) shall be deemed to amend the terms and conditions of this
Agreement. For purposes of this Agreement, a "Change of Control of Employer"
shall be deemed to have occurred if, after the date of this Agreement, any
person, corporation or other entity becomes the beneficial owner, directly or
indirectly, of 25% or more of the combined voting power of Employer's then
outstanding voting securities.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on July 19, 2004.
OCCIDENTAL PETROLEUM CORPORATION
Employer
By: /s/ R. R. IRANI
----------------------------
Dr. Ray R. Irani
CONSULTANT
/s/ DALE R. LAURANCE
--------------------------------
Dale R. Laurance
- 4 -
EXHIBIT 10.3
OCCIDENTAL PETROLEUM CORPORATION
2001 INCENTIVE COMPENSATION PLAN
STOCK APPRECIATION RIGHTS (SARs)
TERMS AND CONDITIONS
- --------------------------------------------------------------------------------
Date of Grant:
Number of SARs: See "Shares Granted/Awarded" (Grant Acknowledgement screen)
Grant Price:
Expiration Date:
Vesting Schedule: 1st Anniversary 33 1/3 Percent of Number of SARs
2nd Anniversary 33 1/3 Percent of Number of SARs
3rd Anniversary 33 1/3 Percent of Number of SARs
- --------------------------------------------------------------------------------
The following TERMS AND CONDITIONS (these "Terms and Conditions") are set forth
as of the Date of Grant between OCCIDENTAL PETROLEUM CORPORATION, a Delaware
corporation ("Occidental"), and with its subsidiaries (the "Company") and the
Eligible Employee receiving this grant (the "Grantee").
1. STOCK APPRECIATION RIGHTS. For the purposes of these Terms and Conditions,
a Stock Appreciation Right ("SAR") is the right to receive in cash the excess,
if any, of the fair market value of one share of Occidental Common Stock at the
date and time of exercise over the Fair Market Value of one share of Occidental
Common Stock on the Date of Grant (the "Grant Price").
2. GRANT OF SARS. As of the Date of Grant, Occidental grants to the Grantee
the Number of SARs indicated, at the Grant Price. All SARs may be exercised in
accordance with these Terms and Conditions and the Occidental Petroleum
Corporation 2001 Incentive Compensation Plan, as amended from time to time (the
"Plan"). This Grant shall not be an option to purchase Occidental Common Stock
and shall confer no stockholder rights upon the Grantee.
3. TERM OF SARS. The term of these SARs begins on the Date of Grant and
expires on the tenth anniversary of the Date of Grant (the "Expiration Date")
unless they are terminated earlier as provided in Section 7.
4. RIGHT TO EXERCISE. Unless these SARs have expired, terminated, or
accelerated, on each anniversary of the Date of Grant, the amount of SARs
indicated above in the Vesting Schedule for such anniversary will become
exercisable on a cumulative basis until all of the SARs are fully exercisable.
In the event that the Vesting Schedule results in fractional SARs, the
fractional SARs will be rounded to the nearest whole SAR as follows: for SARs
vesting on the first anniversary, the fraction will be rounded up to the nearest
whole number; for SARs vesting on the third anniversary date, SARs will be
rounded down to the nearest whole number; and for SARs vesting
1
on the second anniversary, the fraction will be rounded up or down to the
nearest whole number as necessary so that the sum of the three tranches of SARs
will equal the Number of SARs granted. SARs may be exercised, in whole or in
part, only for the amount of SARs that are vested on the date of exercise. The
last date to exercise these SARs is the New York Stock Exchange trading day
prior to the earlier of the date these SARs terminate and the Expiration Date.
5. SAR NONTRANSFERABLE. These SARs may not be transferred nor assigned by the
Grantee other than to a beneficiary designated on a form approved by the Company
or by will. If the Grantee dies without designating a beneficiary and without a
valid will, the Grantee's SARs will be assigned by the laws of descent and
distribution. During the Grantee's lifetime, only the Grantee, or in the event
of his or her legal incapacity, a properly appointed guardian or legal
representative may exercise these SARs.
6. NOTICE OF EXERCISE.
(a) To exercise these SARs, the Grantee must give oral or written notice
to Occidental or any agent designated by Occidental to administer grants made
under the Plan. If Occidental has designated an agent, notice must be given to
the agent to be effective. The notice of exercise must state the amount of SARs
the Grantee wishes to exercise. The date the notice is received is the exercise
date unless limit orders are permitted by the Administrator or any agent
designated by Occidental and the notice contains a limit order in accordance
with the procedures established by the Administrator or the agent, in which case
the exercise date is the trading date on the New York Stock Exchange during the
limit order period on which the price of the Common Stock traded on the New York
Stock Exchange reaches the price specified in the notice. The fair market value
used to determine the proceeds will be the value indicated as such by the
Administrator or the agent on the exercise date unless (i) notice is received
after the close of trading on the New York Stock Exchange, in which case it will
be the closing price of the Common Stock on the New York Stock Exchange for that
day, or (ii) notice is received on a day which is not a New York Stock Exchange
trading day, or on a day which is a New York Stock Exchange trading day after 12
AM Eastern Time and before the opening of the New York Stock Exchange on such
day, in which case the fair market value will be the closing price of the Common
Stock on the New York Stock Exchange for the trading day that immediately
preceded the notice. If requested, any oral notice of exercise shall be
confirmed in writing the same day before the close of trading on the New York
Stock Exchange.
(b) At exercise, Grantee will be paid with respect to each SAR exercised
the difference between the Grant Price and the fair market value of one share of
Occidental Common Stock at the date and time of exercise, unless otherwise
required by the administrator. The Grantee will be obligated to pay transaction
fees imposed by Occidental's agent, if one is designated, and any applicable
taxes on the Grantee's profits.
2
7. TERMINATION OF RIGHT TO EXERCISE. The right to exercise these SARs
terminates automatically and without further notice on the date the Grantee
ceases to be an employee of the Company for any reason whatsoever, except as
follows:
(a) IF THE GRANTEE DIES, the SARs will vest immediately as of the date of
the Grantee's death for the full Number of SARs. All SARs may be exercised up to
the Expiration Date by a transferee acceptable under Section 5.
(b) IF THE GRANTEE BECOMES PERMANENTLY AND TOTALLY DISABLED, the SARs will
continue to vest in accordance with the Vesting Schedule, and they may be
exercised up to the Expiration Date. For purposes of these Terms and Conditions,
to be "permanently and totally disabled" means to be unable to engage in any
substantial gainful activity by reason of an impairment which can be expected to
result in death or which has lasted, or can be expected to last, for a
continuous period of at least twelve (12) months.
(c) IF THE GRANTEE RETIRES, the SARs will continue to vest in accordance
with the Vesting Schedule, and they may be exercised up to the Expiration Date.
For purposes of these Terms and Conditions, "retire" means to retire either
under a Company-sponsored retirement plan or with the consent of the Company.
(d) IF THE GRANTEE TERMINATES EMPLOYMENT WITH THE COMPANY FOR ANY REASON
OTHER THAN DEATH, PERMANENT AND TOTAL DISABILITY, RETIREMENT OR CAUSE (WHETHER
OR NOT IN BREACH OF LOCAL LABOR LAWS), the SARs will cease to vest as of the
close of business on the last day of the Grantee's active employment. Any vested
SARs may be exercised up to the sooner of (i) three (3) months following the
last day of the Grantee's active employment and (ii) the Expiration Date. Only
the amount of SARs exercisable as of the Grantee's last day of employment
pursuant to the Vesting Schedule may be exercised. For the purposes of these
Terms and Conditions, "cause" means the Grantee's (w) failure to satisfactorily
perform the duties of his or her job or negligence in carrying out the Company's
legal obligations, (x) refusal to carry out any lawful order of the Company, (y)
breach of any legal duty to the Company, or (z) conduct constituting moral
turpitude or conviction of a crime which may diminish the Grantee's ability to
effectively act on the Company's behalf or with or on behalf of others.
For the purposes of these Terms and Conditions, the continuous employment of the
Grantee with the Company will not be interrupted, and the Grantee will not be
deemed to cease to be an employee of the Company, by reason of the transfer of
his or her employment among the Company and its affiliates or an approved leave
of absence. The Administrator shall have the exclusive discretion to determine
when the Grantee is no longer actively employed for purposes of this SAR grant.
8. ACCELERATION OF SAR. If a Change in Control Event as defined in the Plan
occurs, all SARs shall become immediately exercisable unless, prior to the
occurrence of the Change in Control Event, the Administrator, as provided in
Section 6.1 of the
3
Plan, determines that such Event will not accelerate these SARs or that
acceleration will occur for only part of the SARs granted or at a different
time. Any such determination by the Administrator is binding on the Grantee.
9. NO EMPLOYMENT CONTRACT. Nothing in these Terms and Conditions confers upon
the Grantee any right with respect to continued employment by the Company, nor
limits in any manner the right of the Company to terminate the employment or
adjust the compensation of the Grantee.
10. TAXES AND WITHHOLDING. If the Company must withhold any federal, state,
local or foreign tax in connection with the exercise of these SARs, the
Administrator or any agent designated by Occidental will deduct the amount due
from the proceeds payable to the Grantee.
11. COMPLIANCE WITH LAW. The Company will make reasonable efforts to comply
with all applicable federal, state and foreign securities laws; however, these
SARs are not exercisable if their exercise would result in a violation of any
such law.
12. ADJUSTMENTS. The Grant Price and the Number of SARs covered by this Grant
may be adjusted as the Administrator determines pursuant to Section 6.2 of the
Plan in order to prevent dilution or expansion of the Grantee's rights under
these Terms and Conditions as a result of events such as stock dividends, stock
splits, or other change in the capital structure of Occidental, or any merger,
consolidation, spin-off, liquidation or other corporate transaction or event
having a similar effect. If any such adjustment occurs, the Company will give
the Grantee written notice of the adjustment containing an explanation of the
nature of the adjustment.
13. RELATION TO OTHER BENEFITS. The benefits received by the Grantee under
these Terms and Conditions will not be taken into account in determining any
benefits to which the Grantee may be entitled under any profit sharing,
retirement or other benefit or compensation plan maintained by the Company,
including the amount of any life insurance coverage available to any beneficiary
of the Grantee under any life insurance plan covering employees of the Company.
The grant of these SARs does not create any contractual or other right to
receive future grants of SARs, or benefits in lieu of SARs, even if the Grantee
has a history of receiving SARs, options or other stock awards.
14. AMENDMENTS. Any amendment to the Plan will be deemed to be an amendment to
these Terms and Conditions to the extent it is applicable to these Terms and
Conditions; however, no amendment will adversely affect the rights of the
Grantee under these Terms and Conditions without the Grantee's consent.
15. SEVERABILITY. If one or more of the provisions of these Terms and
Conditions is invalidated for any reason by a court of competent jurisdiction,
the invalidated provisions shall be deemed to be separable from the other
provisions of these Terms and
4
Conditions, and the remaining provisions of these Terms and Conditions will
continue to be valid and fully enforceable.
16. RELATION TO PLAN; INTERPRETATION. These Terms and Conditions are subject to
the terms and conditions of the Plan. In the event of any inconsistent
provisions between these Terms and Conditions and the Plan, the provisions of
the Plan control. Capitalized terms used in these Terms and Conditions without
definition have the meanings assigned to them in the Plan. References to
Sections are to Sections of these Terms and Conditions unless otherwise noted.
17. ADMINISTRATIVE PROCEDURES. The Administrator, directly or through its
agent, reserves the right to adopt procedures with respect to the exercise of
these SARs. In the event of any inconsistent provisions between such procedures,
these Terms and Conditions and the Plan, the provisions of the Plan control.
18. SUCCESSORS AND ASSIGNS. Subject to Section 5, the provisions of these Terms
and Conditions shall be for the benefit of, and be binding upon, the successors,
administrators, heirs, legal representatives and assigns of the Grantee, and the
successors and assigns of the Company.
19. GOVERNING LAW. The laws of the State of Delaware govern the interpretation,
performance, and enforcement of these Terms and Conditions.
20. NOTICES. Except as the Company may otherwise direct for exercise notices,
any notice to the Company provided for in these Terms and Conditions will be
given to its Secretary at 10889 Wilshire Boulevard, Los Angeles, California
90024, and any notice to the Grantee will be addressed to the Grantee at his or
her address currently on file with the Company. Except as provided in Section 6
for exercise notices, any written notice will be deemed to be duly given when
received if delivered personally or sent by telecopy, e-mail, or the United
States mail, first class registered mail, postage and fees prepaid, and
addressed as provided in this paragraph. Any party may change the address to
which notices are to be given by written notice to the other party as specified
in the preceding sentence.
21. PRIVACY RIGHTS. The Company and the Grantee's employer hold or may receive
from any agent designated by the Company certain personal information about the
Grantee, including, but not limited to, the Grantee's name, home address and
telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares of stock or directorships
held in Occidental, details of all SARs, options or any other entitlement to
shares of stock awarded, canceled, exercised, vested, unvested or outstanding in
the Grantee's favor, for the purpose of implementing, administering and managing
the Plan, including complying with applicable tax and securities laws ("Data").
Data may be transferred to any third parties assisting in the implementation,
administration and management of the Plan. These recipients may be located in
the Grantee's country or elsewhere, and may have different data privacy laws and
protections than the Grantee's country. By accepting these
5
Terms and Conditions, the Grantee authorizes the recipients to receive, possess,
use, retain and transfer the Data, in electronic or other form, for the purposes
described above. The Grantee may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary
amendments to Data or refuse or withdraw the consents herein, in any case
without cost, by contacting the Administrator in writing. Refusing or
withdrawing consent may affect the Grantee's ability to participate in the Plan.
22. ELECTRONIC DELIVERY. The Company may, in its sole discretion, decide to
deliver any documents related to these SARs or any future grants that may be
issued under the Plan (if any) by electronic means or to request the Grantee's
consent to participate in the Plan by electronic means. The Grantee hereby
consents to receive such documents by electronic delivery and, if requested, to
participate in the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the Company.
23. GRANTEE'S REPRESENTATIONS AND RELEASES. By accepting the grant, the Grantee
acknowledges that the Grantee has read these Terms and Conditions and
understands that the (i) grant of these SARs is made voluntarily by Occidental
in its discretion with no liability on the part of any of its direct or indirect
subsidiaries, and that, if the Grantee is not an employee of Occidental, the
Grantee is not, and will not be considered, an employee of Occidental but the
Grantee is a third party (employee of a subsidiary) to whom these SARs are
granted; (ii) the future value of the SARs cannot be predicted and Occidental
does not assume liability in the event the SARs have no value in the future;
and, (iii) subject to the terms of any tax equalization agreement between the
Grantee and the entity employing the Grantee, the Grantee will be solely
responsible for the payment or nonpayment of taxes imposed or threatened to be
imposed by any authority of any jurisdiction.
In consideration of the grant of these SARs, no claim or entitlement to
compensation or damages shall arise from termination of these SARs or diminution
in value of these SARs resulting from termination of the Grantee's employment by
the Company or the Grantee's employer (for any reason whatsoever and whether or
not in breach of local labor laws). The Grantee irrevocably releases the Company
and, if not Occidental, the Grantee's employer from any such claim that may
arise; if, notwithstanding the foregoing, any such claim is found by a court of
competent jurisdiction to have arisen, then, by accepting these Terms and
Conditions, the Grantee shall be deemed irrevocably to have waived his or her
entitlement to pursue such claim.
6
EXHIBIT 10.4
OCCIDENTAL PETROLEUM CORPORATION
2001 INCENTIVE COMPENSATION PLAN
RESTRICTED SHARE UNIT AWARD
TERMS AND CONDITIONS
Date:
Number of Restricted
Share Units: See "Shares Granted/Awarded" (Grant Acknowledgment
screen)
Vesting Schedule: 1st Anniversary 33 1/3 Percent of Restricted Share Units
2nd Anniversary 33 1/3 Percent of Restricted Share Units
3rd Anniversary 33 1/3 Percent of Restricted Share Units
The following TERMS AND CONDITIONS (these "Terms and Conditions") made as of the
Date of Grant between OCCIDENTAL PETROLEUM CORPORATION, a Delaware corporation
("Occidental") and, with its subsidiaries, (the "Company"), and the Eligible
Employee receiving this Award (the "Grantee").
1. GRANT OF RESTRICTED SHARE UNITS. In accordance with these Terms and
Conditions and the Occidental Petroleum Corporation 2001 Incentive Compensation
Plan, as amended from time to time (the "Plan"), Occidental grants to the
Grantee as of the Date of Grant, the right to receive on each anniversary date
Common Shares equal to the number of Restricted Share Units that vest on such
date according to the schedule set forth above. For the purposes of these Terms
and Conditions, Restricted Share Unit means a bookkeeping entry equivalent to a
whole or fractional Common Share. Restricted Share Units are not shares and have
no voting rights or, except as stated in Section 5, dividend rights.
2. RESTRICTIONS ON TRANSFER. Neither these Terms and Conditions, the
Restricted Share Units nor the right to receive Common Shares may be transferred
or assigned by the Grantee other than (i) to a beneficiary designated on a form
approved by the Company, by will or, if the Grantee dies without designating a
beneficiary or a valid will, by the laws of descent and distribution, or (ii)
pursuant to a domestic relations order (if approved or ratified by the
Administrator).
3. VESTING AND FORFEITURE OF RESTRICTED SHARE UNITS. (a) Subject to Sections
3(b) and (c), on each anniversary of the Date of Grant the amount of Restricted
Share Units indicated above in the Vesting Schedule for such anniversary will
vest and become non-forfeitable if the Grantee remains in the continuous employ
of the Company through such Date. In the event that the Vesting Schedule results
in a fractional share unit, the fractional share unit will be rounded to a whole
share as follows: for Restricted Share Units vesting on the first anniversary,
the fraction will be rounded up to the nearest whole number; for Restricted
Share Units vesting on the third anniversary, the fraction will be rounded down
to the nearest whole number; and for Restricted Share
Units vesting on the second anniversary, the fraction will be rounded up or down
to the nearest whole number as necessary so that the sum of the vested
Restricted Share Units will equal the number of Restricted Share Units indicated
above. The continuous employment of the Grantee will not be deemed to have been
interrupted by reason of the transfer of the Grantee's employment among the
Company and its affiliates or an approved leave of absence.
(b) Notwithstanding Section 3(a), if the Grantee dies or becomes
permanently disabled while in the employ of the Company, retires under a
Company-sponsored retirement plan or with the consent of the Company, or
terminates employment for the convenience of the Company (each of the foregoing,
a "Vesting Event"), then Restricted Share Units that have not vested prior to
the date of the Vesting Event will become fully vested and nonforfeitable as of
such date.
(c) Notwithstanding Section 3(a), if a Change in Control Event occurs
prior to the end of the Vesting Schedule, all of the Restricted Share Units that
have not yet vested shall immediately become fully vested and nonforfeitable.
4. CREDITING AND PAYMENT OF DIVIDEND EQUIVALENTS. With respect to the number
of Restricted Share Units listed above, the Grantee will be credited on the
books and records of Occidental with an amount (the "Dividend Equivalent") equal
to the amount per share of any cash dividends declared by the Board on the
outstanding Common Shares until the shares vest, or, if earlier, up to the date
on which the Grantee forfeits all or any portion of the Restricted Share Units.
Until the Restricted Share Units have vested, Occidental will pay in cash to the
Grantee an amount equal to the Dividend Equivalents credited to such Grantee as
promptly as may be practicable after the Grantee has been credited with a
Dividend Equivalent.
5. NO EMPLOYMENT CONTRACT. Nothing in these Terms and Conditions confers upon
the Grantee any right with respect to continued employment by the Company, nor
limits in any manner the right of the Company to terminate the employment or
adjust the compensation of the Grantee.
6. TAXES AND WITHHOLDING. If the Company must withhold any federal, state,
local or foreign tax in connection with the issuance or vesting of the
Restricted Share Units or other securities or the payment of Dividend
Equivalents pursuant to these Terms and Conditions, the Grantee by accepting
these Terms and Conditions agrees that, so long as the Grantee is an employee of
the Company for tax purposes, all or any part of any such withholding obligation
shall be deducted from the Grantee's regular pay.
7. COMPLIANCE WITH LAW. The Company will make reasonable efforts to comply
with all applicable federal and state securities laws; however, the Company will
not issue any Common Shares or other securities pursuant to these Terms and
Conditions if their issuance would result in a violation of any such law.
2
8. RELATION TO OTHER BENEFITS. The benefits received by the Grantee under
these Terms and Conditions will not be taken into account in determining any
benefits to which the Grantee may be entitled under any profit sharing,
retirement or other benefit or compensation plan maintained by the Company,
including the amount of any life insurance coverage available to any beneficiary
of the Grantee under any life insurance plan covering employees of the Company.
This grant of Restricted Share Units does not create any contractual or other
right to receive future grants of Restricted Share Units, or benefits in lieu of
Restricted Share Units, even if Grantee has a history of receiving Restricted
Share Units or other stock awards.
9. ADJUSTMENTS. The number or kind of shares of stock covered by this
Restricted Share Unit Award may be adjusted as the Administrator determines
pursuant to Section 6.2 of the Plan in order to prevent dilution or expansion of
the Grantee's rights under these Terms and Conditions as a result of events such
as stock dividends, stock splits, or other change in the capital structure of
Occidental, or any merger, consolidation, spin-off, liquidation or other
corporate transaction or event having a similar effect. If any such adjustment
occurs, the Company will give the Grantee written notice of the adjustment
containing an explanation of the nature of the adjustment.
10. AMENDMENTS. Any amendment to the Plan will be deemed to be an amendment to
these Terms and Conditions to the extent it is applicable to these Terms and
Conditions or; however, no amendment will adversely affect the rights of the
Grantee under these Terms and Conditions without the Grantee's consent.
11. SEVERABILITY. If one or more of the provisions of these Terms and
Conditions is invalidated for any reason by a court of competent jurisdiction,
the invalidated provisions shall be deemed to be separable from the other
provisions of these Terms and Conditions, and the remaining provisions of these
Terms and Conditions will continue to be valid and fully enforceable.
12. RELATION TO PLAN; INTERPRETATION. These Terms and Conditions are subject to
the terms and conditions of the Plan. In the event of any inconsistent
provisions between these Terms and Conditions and the Plan, the provisions of
the Plan control. Capitalized terms used in these Terms and Conditions without
definition have the meanings assigned to them in the Plan. References to
Sections are to Sections of these Terms and Conditions unless otherwise noted.
13. SUCCESSORS AND ASSIGNS. Subject to Sections 2 and 3, the provisions of
these Terms and Conditions shall be for the benefit of, and be binding upon, the
successors, administrators, heirs, legal representatives and assigns of the
Grantee, and the successors and assigns of the Company.
14. GOVERNING LAW. The laws of the State of Delaware govern the interpretation,
performance, and enforcement of these Terms and Conditions.
3
15. PRIVACY RIGHTS. The Company and the Grantee's employer hold or may receive
from any agent designated by the Company certain personal information about the
Grantee, including, but not limited to, the Grantee's name, home address and
telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares of stock or directorships
held in Occidental, details of this Restricted Share Unit award or any other
entitlement to shares of stock awarded, canceled, exercised, vested, unvested or
outstanding in the Grantee's favor, for the purpose of implementing,
administering and managing the Plan, including complying with applicable tax and
securities laws ("Data"). Data may be transferred to any third parties assisting
in the implementation, administration and management of the Plan. These
recipients may be located in the Grantee's country or elsewhere, and may have
different data privacy laws and protections than the Grantee's country. By
accepting these Terms and Conditions, the Grantee authorizes the recipients to
receive, possess, use, retain and transfer the Data, in electronic or other
form, for the purposes described above. The Grantee may, at any time, view Data,
request additional information about the storage and processing of Data, require
any necessary amendments to Data or refuse or withdraw the consents herein, in
any case without cost, by contacting the Administrator in writing. Refusing or
withdrawing consent may affect the Grantee's ability to participate in the Plan.
16. ELECTRONIC DELIVERY. The Company may, in its sole discretion, decide to
deliver any documents related to this Restricted Share Unit award granted under
the Plan or future awards that may be granted under the Plan (if any) by
electronic means or to request the Grantee's consent to participate in the Plan
by electronic means. The Grantee hereby consents to receive such documents by
electronic delivery and, if requested, to participate in the Plan through an
on-line or electronic system established and maintained by the Company or
another third party designated by the Company.
17. GRANTEE'S REPRESENTATIONS AND RELEASES. By accepting this award, the
Grantee acknowledges that the Grantee has read these Terms and Conditions and
understands that (i) the grant of this Restricted Share Unit award is made
voluntarily by Occidental in its discretion with no liability on the part of any
of its direct or indirect subsidiaries and that, if the Grantee is not an
employee of Occidental, the Grantee is not, and will not be considered, an
employee of Occidental but the Grantee is a third party (employee of a
subsidiary) to whom this Restricted Share Unit award is granted; (ii) the future
value of any Common shares issued pursuant to this Restricted Share Unit award
cannot be predicted and Occidental does not assume liability in the event such
Common Shares have no value in the future; and, (iii) subject to the terms of
any tax equalization agreement between the Grantee and the entity employing the
Grantee, the Grantee will be solely responsible for the payment or nonpayment of
taxes imposed or threatened to be imposed by any authority of any jurisdiction.
In consideration of the grant of this Restricted Share Unit award, no claim or
entitlement to compensation or damages shall arise from termination of this
Restricted Share Unit award or diminution in value of this Restricted Share Unit
award or Common Shares issued pursuant to this Restricted Share Unit award
resulting from termination of the
4
Grantee's employment by the Company or the Grantee's employer (for any reason
whatsoever and whether or not in breach of local labor laws) and the Grantee
irrevocably releases the Company and, if not Occidental, the Grantee's employer
from any such claim that may arise; if, notwithstanding the foregoing, any such
claim is found by a court of competent jurisdiction to have arisen, then, by
accepting these Terms and Conditions, the Grantee shall be deemed irrevocably to
have waived his or her entitlement to pursue such claim.
5
EXHIBIT 11
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 2004 AND 2003
(Amounts in thousands, except per-share amounts)
Three Months Ended Six Months Ended
June 30 June 30
---------------------------- ----------------------------
2004 2003 2004 2003
======================================================== ============ ============ ============ ============
BASIC EARNINGS PER SHARE
Income after taxes $ 581,048 $ 373,833 $ 1,068,075 $ 767,438
Effect of repurchase of Trust Preferred Securities -- (1) -- (19)
------------ ------------ ------------ ------------
Income from continuing operations 581,048 373,832 1,068,075 767,419
Discontinued operations, net -- -- -- --
Cumulative effect of changes in
accounting principles, net -- -- -- (68,430)
------------ ------------ ------------ ------------
Earnings applicable to common stock $ 581,048 $ 373,832 $ 1,068,075 $ 698,989
============ ============ ============ ============
Basic shares
Weighted average common shares outstanding 391,494 381,343 390,440 379,876
Issued, unvested restricted stock (34) (167) (34) (167)
Vested, unissued restricted stock 665 197 665 197
Deferred shares 1,803 1,191 1,695 972
------------ ------------ ------------ ------------
Basic shares outstanding 393,928 382,564 392,766 380,878
============ ============ ============ ============
Basic earnings per share
Income from continuing operations $ 1.48 $ 0.98 $ 2.72 $ 2.02
Cumulative effect of changes in
accounting principles, net -- -- -- (0.18)
------------ ------------ ------------ ------------
Basic earnings per common share $ 1.48 $ 0.98 $ 2.72 $ 1.84
============ ============ ============ ============
DILUTED EARNINGS PER SHARE
Earnings applicable to common stock $ 581,048 $ 373,832 $ 1,068,075 $ 698,989
============ ============ ============ ============
Diluted shares
Basic shares outstanding 393,928 382,564 392,766 380,878
Dilutive effect of exercise of options outstanding 3,862 3,274 4,176 3,176
Issued, unvested restricted stock 34 167 34 167
Deferred, restricted stock 1,054 726 1,054 726
------------ ------------ ------------ ------------
Diluted shares 398,878 386,731 398,030 384,947
============ ============ ============ ============
Diluted earnings per share
Income from continuing operations $ 1.46 $ 0.97 $ 2.68 $ 1.99
Cumulative effect of changes in
accounting principles, net -- -- -- (0.18)
------------ ------------ ------------ ------------
Diluted earnings per common share $ 1.46 $ 0.97 $ 2.68 $ 1.81
======================================================== ============ ============ ============ ============
There were no antidulutive options included in the computation of diluted
earnings per share for all periods presented.
EXHIBIT 12
OCCIDENTAL PETROLEUM CORPORATION AND SUBSIDIARIES
COMPUTATION OF TOTAL ENTERPRISE RATIOS OF EARNINGS TO FIXED CHARGES
(Amounts in millions, except ratios)
Six Months Ended Year Ended
June 30 December 31
----------------------- ---------------------------------------------------------
2004 2003 2003 2002 2001 2000 1999
===================================== ========== ========== ========= ========= ========= ========= =========
Income from continuing
operations $ 1,068 $ 767 $ 1,595 $ 1,163 $ 1,179 $ 1,557 $ 461
Add:
Minority interest(a) 36 38 62 77 143 185 58
Adjusted income from equity
investments(b) 6 39 69 308 89 31 73
---------- ---------- --------- --------- --------- --------- ---------
1,110 844 1,726 1,548 1,411 1,773 592
---------- ---------- --------- --------- --------- --------- ---------
Add:
Provision for taxes on
income (other than foreign oil
and gas taxes) 407 358 682 (41) 172 871 306
Interest and debt expense(c) 134 192 335 309 411 540 515
Portion of lease rentals
representative of the interest
factor 18 4 8 6 7 6 31
---------- ---------- --------- --------- --------- --------- ---------
559 554 1,025 274 590 1,417 852
---------- ---------- --------- --------- --------- --------- ---------
Earnings before fixed charges $ 1,669 $ 1,398 $ 2,751 $ 1,822 $ 2,001 $ 3,190 $ 1,444
========== ========== ========= ========= ========= ========= =========
Fixed charges
Interest and debt expense
including capitalized
interest(c) $ 136 $ 194 $ 341 $ 321 $ 417 $ 543 $ 522
Portion of lease rentals
representative of the interest
factor 18 4 8 6 7 6 31
---------- ---------- --------- --------- --------- --------- ---------
Total fixed charges $ 154 $ 198 $ 349 $ 327 $ 424 $ 549 $ 553
========== ========== ========= ========= ========= ========= =========
Ratio of earnings to fixed charges 10.84 7.06 7.88 5.57 4.72 5.81 2.61
===================================== ========== ========== ========= ========= ========= ========= =========
(a) Represents minority interests in net income of majority-owned subsidiaries
and partnerships having fixed charges.
(b) Represents income from less-than-50-percent-owned equity investments
adjusted to reflect only dividends received.
(c) Includes proportionate share of interest and debt expense of
50-percent-owned equity investments.
EXHIBIT 23
EXPERT CONSENT
The Board of Directors
Occidental Petroleum Corporation:
We consent to the inclusion in the Occidental Petroleum Corporation
(Occidental) Form 10-Q for the quarter ended June 30, 2004, and the
incorporation by reference in Occidental's registration statements (Nos.
33-14662, 33-47636, 33-59395, 33-64719, 333-49207, 33-72719, 333-78031,
333-37970, 333-55404, 33-63444, 333-82246, 33-83124, 333-96951, 333-104827 and
333-115099), of references to our name and to our letter dated July 28, 2004,
relating to our review of the procedures and methods used by Occidental in its
oil and gas estimation process.
/s/ Ryder Scott Company, L.P.
RYDER SCOTT COMPANY, L.P.
Houston, Texas
July 29, 2004
EXHIBIT 31.1
CERTIFICATION
I, Ray R. Irani, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Occidental Petroleum
Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
and
5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control over
financial reporting.
Date: August 2, 2004
/s/ RAY R. IRANI
----------------------------------------
Ray R. Irani
Chairman of the Board of Directors and
Chief Executive Officer
EXHIBIT 31.2
CERTIFICATION
I, Stephen I. Chazen, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Occidental Petroleum
Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
and
5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control over
financial reporting.
Date: August 2, 2004
/s/ STEPHEN I. CHAZEN
----------------------------------------
Stephen I. Chazen
Senior Executive Vice President and
Chief Financial Officer
EXHIBIT 32.1
CERTIFICATION OF CEO AND CFO PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Occidental Petroleum
Corporation (the "Company") for the quarterly period ending June 30, 2004, as
filed with the Securities and Exchange Commission on August 2, 2004 (the
"Report"), Ray R. Irani, as Chief Executive Officer of the Company, and Stephen
I. Chazen, as Chief Financial Officer of the Company, each hereby certifies,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
/s/ RAY R. IRANI
- -----------------------------------
Name: Ray R. Irani
Title: Chairman of the Board of Directors and Chief Executive Officer
Date: August 2, 2004
/s/ STEPHEN I. CHAZEN
- -----------------------------------
Name: Stephen I. Chazen
Title: Senior Executive Vice President and Chief Financial Officer
Date: August 2, 2004
A signed original of this written statement required by Section 906 has been
provided to Occidental Petroleum Corporation and will be retained by Occidental
Petroleum Corporation and furnished to the Securities and Exchange Commission or
its staff upon request.
This certification accompanies the Report pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the
Sarbanes-Oxley Act of 2002, be deemed filed by the Company for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended.