________________________________________________________________________________
Exbibit 10.1
EXECUTION COPY
U.S. $900,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of November 12, 2004
Among
HERSHEY FOODS CORPORATION,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
UBS LOAN FINANCE LLC,
as Documentation Agent,
and
CITIGROUP GLOBAL MARKETS INC.,
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers,
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................................1
SECTION 1.02. Computation of Time Periods........................................................................13
SECTION 1.03. Accounting Terms...................................................................................13
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances......................................................................13
SECTION 2.02. Making the Revolving Credit Advances...............................................................14
SECTION 2.03. The Competitive Bid Advances.......................................................................15
SECTION 2.04. Fees...............................................................................................19
SECTION 2.05. Termination, Reduction or Increase of the Commitments..............................................19
SECTION 2.06. Repayment of Revolving Credit Advances.............................................................23
SECTION 2.07. Interest on Revolving Credit Advances..............................................................23
SECTION 2.08. Interest Rate Determination........................................................................24
SECTION 2.09. Optional Conversion of Revolving Credit Advances...................................................25
SECTION 2.10. Optional Prepayments of Revolving Credit Advances..................................................25
SECTION 2.11. Increased Costs....................................................................................26
SECTION 2.12. Illegality.........................................................................................27
SECTION 2.13. Payments and Computations..........................................................................27
SECTION 2.14. Taxes..............................................................................................28
SECTION 2.15. Sharing of Payments, Etc...........................................................................31
SECTION 2.16. Use of Proceeds....................................................................................31
SECTION 2.17. Mandatory Assignment by a Lender; Mitigation.......................................................31
SECTION 2.18. Evidence of Debt...................................................................................32
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ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03....................................32
SECTION 3.02. Initial Borrowing of Each Designated Subsidiary....................................................34
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing............................................35
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.............................................36
SECTION 3.05. Determinations Under Section 3.01..................................................................37
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company......................................................37
ARTICLE V COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants..............................................................................39
SECTION 5.02. Negative Covenants.................................................................................42
SECTION 5.03. Financial Covenant.................................................................................43
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................44
ARTICLE VII GUARANTY
SECTION 7.01. Guaranty...........................................................................................46
SECTION 7.02. Guaranty Absolute..................................................................................47
SECTION 7.03. Waivers and Acknowledgments........................................................................47
SECTION 7.04. Subrogation........................................................................................48
SECTION 7.05. Continuing Guaranty; Assignments Under the Credit Agreement........................................48
SECTION 7.06. No Stay............................................................................................49
ARTICLE VIII THE AGENT
SECTION 8.01. Authorization and Action...........................................................................49
SECTION 8.02. Agent's Reliance, Etc..............................................................................49
SECTION 8.03. Citibank and Affiliates............................................................................50
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SECTION 8.04. Lender Credit Decision.............................................................................50
SECTION 8.05. Indemnification....................................................................................50
SECTION 8.06. Successor Agent....................................................................................50
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc....................................................................................51
SECTION 9.02. Notices, Etc.......................................................................................51
SECTION 9.03. No Waiver; Remedies................................................................................52
SECTION 9.04. Costs and Expenses.................................................................................53
SECTION 9.05. Right of Set-off...................................................................................54
SECTION 9.06. Binding Effect.....................................................................................55
SECTION 9.07. Assignments, Designations and Participations.......................................................55
SECTION 9.08. Designated Subsidiaries............................................................................57
SECTION 9.09. Confidentiality....................................................................................58
SECTION 9.10. Governing Law......................................................................................58
SECTION 9.11. Execution in Counterparts..........................................................................58
SECTION 9.12. Jurisdiction, Etc..................................................................................58
SECTION 9.13. Patriot Act........................................................................................59
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(c) - Required Authorizations and Approvals
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
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Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of Burton H. Snyder, Senior Vice President, General Counsel and
Secretary of the Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
FIVE YEAR CREDIT AGREEMENT
Dated as of November 12, 2004
HERSHEY FOODS CORPORATION, a Delaware corporation (the
"Company"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, CITIBANK, N.A.
("Citibank"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), BANK OF AMERICA, N.A., as syndication agent, UBS LOAN
FINANCE LLC, as documentation agent, and CITIGROUP GLOBAL MARKETS INC. and BANC
OF AMERICA SECURITIES LLC, as joint lead arrangers and joint book managers (the
"Arrangers"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADVANCE" means a Revolving Credit Advance or a Competitive
Bid Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"AGENT'S ACCOUNT" means the account of the Agent maintained by
the Agent at Citibank with its office at Two Penn's Way, New Castle,
Delaware 19720, Account No. 36852248, Attention: Bank Loan
Syndications.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"APPLICABLE MARGIN" means (a) for Base Rate Advances, 0% per
annum and (b) for Eurodollar Rate Advances, as of any date, a percentage per
annum determined by reference to the Level in effect on such date as set forth
below:
- -------------------------------- -------------------------------------------
Level Applicable Margin for Eurodollar
Rate Advances
- -------------------------------- -------------------------------------------
Level 1 0.140%
- -------------------------------- -------------------------------------------
Level 2 0.180%
- -------------------------------- -------------------------------------------
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Level 3 0.220%
- -------------------------------- -------------------------------------------
Level 4 0.310%
- -------------------------------- -------------------------------------------
Level 5 0.390%
- -------------------------------- -------------------------------------------
Level 6 0.600%
- -------------------------------- -------------------------------------------
"APPLICABLE PERCENTAGE" means, as of any date, a percentage
per annum determined by reference to the Level in effect on such date
as set forth below:
-------------------------------- ------------------------------
Level Applicable
Percentage
-------------------------------- ------------------------------
Level 1 0.060%
-------------------------------- ------------------------------
Level 2 0.070%
-------------------------------- ------------------------------
Level 3 0.080%
-------------------------------- ------------------------------
Level 4 0.090%
-------------------------------- ------------------------------
Level 5 0.110%
-------------------------------- ------------------------------
Level 6 0.150%
-------------------------------- ------------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceed 50% of the aggregate Commitments, a
percentage per annum determined by reference to the Level in effect on
such date as set forth below:
-------------------------------- ---------------------------
Level Applicable
Utilization Fee
-------------------------------- ---------------------------
Level 1 0.050%
-------------------------------- ---------------------------
Level 2 0.050%
-------------------------------- ---------------------------
Level 3 0.050%
-------------------------------- ---------------------------
Level 4 0.100%
-------------------------------- ---------------------------
Level 5 0.100%
-------------------------------- ---------------------------
Level 6 0.125%
-------------------------------- ---------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.05(c).
"ASSUMPTION AGREEMENT" means an agreement in substantially the
form of Exhibit D hereto by which an Eligible Assignee agrees to become
a Lender hereunder pursuant to Section 2.05(c), agreeing to be bound by
all obligations of a Lender hereunder.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
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(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base
rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"BORROWER" means the Company or any Designated Subsidiary, as
the context requires.
"BORROWING" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advance or LIBO
Rate Advance, on which dealings are carried on in the London interbank
market.
"CHANGE OF CONTROL" means a change in the voting power of
Hershey Trust Company, as trustee for the Milton Hershey School (the
"Hershey Trust"), such that either (A) (i) it no longer controls a
majority of the voting power of the Company's Voting Stock and (ii) at
the same time, another Person or group of Persons within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended,
controls a percentage of the voting power of the Company's Voting Stock
in excess of the percentage controlled by the Hershey Trust or (B) it
no longer controls at least 30% of the voting power of the Company's
Voting Stock.
"COMMITMENT" has the meaning specified in Section 2.01.
"COMMITMENT INCREASE" has the meaning specified in Section
2.05(c)(i).
"COMMITMENT INCREASE DATE" has the meaning specified in
Section 2.05(c)(i).
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender to such Borrower.
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"COMPETITIVE BID REDUCTION" has the meaning specified in
Section 2.01.
"CONFIDENTIAL INFORMATION" means any non-public or proprietary
information disclosed by any Borrower to the Agent or any Lender that
such Borrower indicates is to be treated confidentially, but does not
include any such information that is or becomes generally available to
the public or that is or becomes available to the Agent or such Lender
on a non-confidential basis from a source other than such Borrower,
which source is not, to the best knowledge of the Agent or such Lender,
subject to a confidentiality agreement with such Borrower.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period with
respect to the Company and its Subsidiaries, net interest expense plus
capitalized interest for such period, in each case determined on a
Consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any period with
respect to the Company and its Subsidiaries, interest expense minus
capitalized interest and interest income for such period, in each case
determined on a Consolidated basis in accordance with GAAP.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"DEBT" means, with respect to any Person: (a) indebtedness for
borrowed money, (b) obligations evidenced by bonds, debentures, notes
or other similar instruments, (c) obligations to pay the deferred
purchase price of property or services (other than trade payables
incurred in the ordinary course of business), (d) obligations as lessee
under leases which shall have been or should be, in accordance with
GAAP, recorded as capital leases, (e) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit
(other than trade letters of credit) or similar extensions of credit
and (f) obligations under direct or indirect guaranties in respect of,
and obligations, contingent or otherwise, to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of any other Person of the kinds referred
to in clauses (a) through (d) above.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED SUBSIDIARY" means any corporate Subsidiary of the
Company designated for borrowing privileges under this Agreement
pursuant to Section 9.08.
"DESIGNATION LETTER" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(b).
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"DOMESTIC LENDING OFFICE" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender or any Affiliate of a
Lender which is principally engaged in the commercial banking business,
and (b) any bank or other financial institution, or any other Person,
that has been approved in writing by the Company and the Agent as an
Eligible Assignee for purposes of this Agreement; provided, however,
that neither the Company's nor the Agent's approval shall be
unreasonably withheld; and provided further, however, that the Company
may withhold its approval if the Company reasonably believes that an
assignment to such Eligible Assignee pursuant to Section 9.07 will
result in the incurrence of increased costs payable by any Borrower
pursuant to Section 2.11 or 2.14.
"ENVIRONMENTAL ACTION" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice,
investigation, proceeding, consent order or consent agreement relating
to any Environmental Law, Environmental Permit or Hazardous Materials
or arising from alleged injury to health, safety or the environment.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12)
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(or 13) of Section 4043(c) of ERISA is reasonably expected to
occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c)
the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of the Company or any ERISA affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by the
Company or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of
a lien under Section 302(f) of ERISA shall have been met with respect
to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
such Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or, with respect to any
other Lender, the office of such Lender specified as its "Eurodollar
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the Company
and the Agent.
"EURODOLLAR RATE" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Moneyline Telerate Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars
at approximately 11:00 A.M. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per annum at
which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance comprising part
of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period. If
Moneyline Telerate Markets Page 3750 (or any successor page) is
unavailable, the Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by
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the Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions
of Section 2.08.
"EURODOLLAR RATE ADVANCe" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" with respect to any
Lender for any Interest Period for all Eurodollar Rate Advances or LIBO
Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable during such Interest Period (or, if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) actually imposed on such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCLUDED TAXES" has the meaning specified in Section 2.14(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"FIXED RATE ADVANCES" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"GUARANTY" means the guaranty made by the Company to the
Lenders and the Agent pursuant to Article VII.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
7.01(a).
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
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"INCREASING LENDER" has the meaning specified in Section
2.05(c)(i).
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower that requested such Borrowing pursuant
to the provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the applicable Borrower may, upon notice received by the
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) such Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"LENDERS" means, collectively, each of the banks, financial
institutions and other institutional lenders listed on Schedule I
hereto, each Assuming Lender that shall become a party hereto pursuant
to Section 2.05(c) and each Eligible Assignee that shall become a party
hereto pursuant to Section 9.07.
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"LEVEL" means, as of any date, the lowest of Level 1, Level 2,
Level 3, Level 4, Level 5 or Level 6 then applicable to the Public Debt
Rating.
"LEVEL 1" means that either (a) S&P shall have assigned a
rating of at least AA- or (b) Moody's shall have assigned a rating of
at least Aa3.
"LEVEL 2" means that either (a) S&P shall have assigned a
rating lower than AA- but at least A+ or (b) Moody's shall have
assigned a rating lower than Aa3 but at least A1.
"LEVEL 3" means that either (a) S&P shall have assigned a
rating lower than A+ but at least A or (b) Moody's shall have assigned
a rating lower than A1 but at least A2.
"LEVEL 4" means that either (a) S&P shall have assigned a
rating lower than A but at least A- or (b) Moody's shall have assigned
a rating lower than A2 but at least A3.
"LEVEL 5" means that either (a) S&P shall have assigned a
rating lower than A- but at least BBB+ or (b) Moody's shall have
assigned a rating lower than A3 but at least Baa1.
"LEVEL 6" means that the Company has not met the criteria for
Level 1, Level 2, Level 3, Level 4 and Level 5.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum) appearing on
Moneyline Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, or if there is no nearest whole multiple of 1/16 of 1% per
annum, then rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars are offered by the principal
office of each of the Reference Banks in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to the amount that would be such Reference Bank's
respective ratable share of such Borrowing if such Borrowing were to be
a Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. If Moneyline
Telerate Markets Page 3750 (or any successor page) is unavailable, the
LIBO Rate for any Interest Period for each LIBO Rate Advance comprising
part of the same Competitive Bid Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section
2.08.
"LIBO RATE ADVANCES" has the meaning specified in Section
2.03(a)(i).
10
"LIEN" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
charge or encumbrance.
"MAJORITY LENDERS" means at any time Lenders owed at least 51%
of the then aggregate unpaid principal amount of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least 51% of the Commitments.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, financial condition, operations, performance or principal
manufacturing properties of the Company and its Subsidiaries taken as a
whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, financial condition, operations, performance or
principal manufacturing properties of the Company and its Subsidiaries
taken as a whole, (b) the rights and remedies of the Agent or the
Lenders under this Agreement or any Note or (c) the ability of any
Borrower to perform its obligations (other than payment obligations)
under this Agreement or any Note.
"MATERIAL SUBSIDIARY" means, at any date of determination, a
Subsidiary of the Company that, either individually or together with
its Subsidiaries, taken as a whole, has total assets exceeding
$300,000,000 on such date.
"MOODY'S" means Moody's Investors Service, Inc., or its
successor.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and at least one Person
other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"NOTE" means a Revolving Credit Note or a Competitive Bid
Note.
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning
specified in Section 2.02(a).
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning
specified in Section 2.03(a).
"OTHER TAXES" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
11
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business; (c)
pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use
of such property for its present purposes; (e) Liens arising under
leases or subleases granted to others that would not be reasonably
likely to have a Material Adverse Effect on the Company and its
Subsidiaries taken as a whole; (f) Liens granted in connection with any
interest rate or foreign currency options, commodity contracts, futures
or similar agreements entered into by the Company or any of its
Subsidiaries in the ordinary course of business; and (g) Liens granted
in connection with corporate-owned life insurance programs of the
Company or any of its Subsidiaries.
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PRE-TAX INCOME FROM CONTINUING OPERATIONS" means, for any
period with respect to the Company and its Subsidiaries, net income (or
net loss) from operations (determined without giving effect to
extraordinary or non-recurring gains or losses) plus the sum of (a)
Consolidated Net Interest Expense, (b) income tax expense and (c)
non-recurring non-cash charges (including the cumulative effect of
accounting changes, restructuring charges and gains or losses from the
sale of businesses), in each case determined on a Consolidated basis in
accordance with GAAP; provided, however, that the LIFO adjustment to
the determination of Pre-Tax Income from Continuing Operations for
purposes of the quarterly financial statements and the compliance
certificate delivered pursuant to Section 5.01(h)(i) shall be made in
accordance with the Company's best estimation.
"PROCESS AGENT" has the meaning specified in Section 9.12(a).
"PUBLIC DEBT RATING" means, as of any date, the lowest rating
that has been most recently and officially announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured debt issued by the Company. For purposes of
the foregoing, (a) if only one of S&P and Moody's shall have in effect
a Public Debt Rating for the Company, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be
determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating for the Company, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 6 under the
definition of "Applicable Margin", "Applicable Percentage" or
"Applicable Utilization Fee", as the case may be;
12
(c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
higher rating, provided that if the lower of such ratings is more than
one level below the higher of such ratings, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be
determined by reference to the level that is one level above such
lower rating; (d) if any rating established by S&P or Moody's shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change (regardless of the effective date thereof); and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as
the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"REFERENCE BANKS" means Citibank, Bank of America, N.A. and
UBS AG, Stamford Branch, or, in the event that less than two of such
Lenders remain Lenders hereunder at any time, any other commercial bank
designated by the Company and approved by the Majority Lenders as
constituting a "Reference Bank" hereunder.
"REGISTER" has the meaning specified in Section 9.07(d).
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing by such Borrower and
refers to a Base Rate Advance or a Eurodollar Rate Advance (each of
which shall be a "Type" of Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of any
Borrower payable to the order of any Lender, delivered pursuant to a
request made under 2.18(a) in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of such Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender
to such Borrower.
"S&P" means Standard & Poor's Rating Services, a division of
the McGraw-Hill Companies, Inc., or its successor.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and no Person other
than the Company and the ERISA Affiliates or (b) was so maintained and
in respect of which the Company or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"SUBSIDIARY" of any Person means any corporation, partnership,
limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of
13
Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
limited liability company or partnership or (c) the beneficial
interest in such trust or estate is at the time directly or indirectly
owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"TAXES" has the meaning specified in Section 2.14(a).
"TERMINATION DATE" means the earlier of (a) November 12, 2009
and (b) the date of termination in whole of the Commitments pursuant to
Section 2.05(a), 2.05(b) or 6.01.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with accounting
principles generally accepted in the United States consistent with those applied
in the preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to any Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate amount for all Borrowers not to exceed at any time outstanding (a) the
amount set forth opposite such Lender's name on Schedule I hereto or (b) if such
Lender has become a Lender hereunder pursuant to an Assumption Agreement or has
increased its Commitment pursuant to Section 2.05(c), or if such Lender has
entered into any Assignment and Acceptance, the amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(d), in each
case as such amount may be reduced pursuant to Section 2.05(a) or (b) (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to
14
their respective Commitments (such deemed use of the aggregate amount of
the Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (or, if less, an aggregate amount equal to the
amount by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by any Borrower exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by such Borrower in
respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date and by the same Borrower as such Revolving Credit
Borrowing) and shall consist of Revolving Credit Advances of the same Type made
on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, any Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow
under this Section 2.01.
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (i)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (ii) 11:00 A.M. (New York
City time) on the day of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by any Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice
of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (w) date of such Revolving Credit Borrowing,
(x) Type of Advances comprising such Revolving Credit Borrowing, (y) aggregate
amount of such Revolving Credit Borrowing, and (z) in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, initial Interest Period
for each such Revolving Credit Advance. Each Lender shall, before (i) in the
case of a Eurodollar Rate Advance, 11:00 A.M. (New York City time) or (ii) in
the case of a Base Rate Advance, 1:00 P.M. (New York City time) on the date of
such Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower requesting the Revolving Credit Borrowing at the Agent's address
referred to in Section 9.02.
(b) Anything herein to the contrary notwithstanding, a
Borrower may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurodollar Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender, after receipt of a
written request by such Lender setting forth in reasonable detail the basis for
such request, against any loss, cost or expense actually incurred by such Lender
as a result of any failure by such Borrower to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for such Revolving Credit
Borrowing the applicable conditions set
15
forth in Article III, including, without limitation, any loss (other than
loss of anticipated profits), cost or expense actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Revolving Credit Advance to be made by such Lender as part of such
Revolving Credit Borrowing when such Revolving Credit Advance, as a result of
such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing comprised of Eurodollar Rate
Advances or prior to the time of the proposed disbursement of any Revolving
Credit Borrowing comprised of Base Rate Advances that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower requesting such Revolving Credit
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. THE COMPETITIVE BID ADVANCES. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) A Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (u) date of such proposed Competitive
Bid Borrowing, (v) aggregate amount of such proposed Competitive Bid
Borrowing, (w) interest rate basis (LIBO Rate or fixed rate) to be
offered by the Lenders, (x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period of each Competitive
Bid Advance to be made as part of such Competitive
16
Bid Borrowing, or in the case of a Competitive Bid Borrowing
Consisting of Fixed Rate Advances, maturity date for repayment of each
Fixed Rate Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date
occurring 7 days after the date of such Competitive Bid Borrowing or
later than the earlier of (I) 180 days after the date of such
Competitive Bid Borrowing and (II) the Termination Date), (y) interest
payment date or dates relating thereto, and (z) other terms (if any)
to be applicable to such Competitive Bid Borrowing, not later than
10:00 A.M. (New York City time) (A) at least one Business Day prior to
the date of the proposed Competitive Bid Borrowing, if such Borrower
shall specify in the Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders are to be based on the LIBO Rate (the Advances comprising
such Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing of a Borrower
shall be irrevocable and binding on such Borrower. Any Notice of
Competitive Bid Borrowing by a Designated Subsidiary shall be given to
the Agent in accordance with the preceding sentence through the
Company on behalf of such Designated Subsidiary. The Agent shall in
turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from a Borrower by sending such Lender a copy
of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower proposing the Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to such Borrower), before 9:30
A.M. (New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and before 10:00 A.M. (New York City time) three
Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing (which amounts may,
subject to the proviso to the first sentence of this Section 2.03(a),
exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance; provided that if the Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify such Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent, before 10:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to
17
make any Competitive Bid Advance as part of such proposed Competitive
Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Borrowing
shall, in turn, before 10:30 A.M. (New York City time) on the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances and before 11:00 A.M.
(New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent of the amount
of each Competitive Bid Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to such Borrower by the
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Agent notice to that effect;
provided, however, that such Borrower shall not accept any
offer in excess of the requested bid amount for any maturity.
Such Borrower shall accept the offers made by any Lender or
Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Advance
notifies the Agent that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(v) If the Borrower proposing the Competitive Bid Advance
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by such Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
the Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender that is to
make a Competitive Bid Advance as part of such
18
Competitive Bid Borrowing shall, before 12:00 Noon (New York City
time) on the date of such Competitive Bid Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, such Lender's portion
of such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to such Borrower
at the Agent's address referred to in Section 9.02. Promptly after
each Competitive Bid Borrowing the Agent will notify each Lender of
the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive
Bid Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Advance
notifies the Agent that it accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender, after receipt of a written
request by such Lender setting forth in reasonable detail the basis for
such request, against any loss, cost or expense actually incurred by
such Lender as a result of any failure by such Borrower to fulfill on
or before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss
(other than loss of anticipated profits), cost or expense actually
incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Competitive Bid Advance
to be made by such Lender as part of such Competitive Bid Borrowing
when such Competitive Bid Advance, as a result of such failure, is not
made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Competitive Bid Borrowing,
the Borrower that has borrowed through such Competitive Bid Borrowing
shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, each Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and
reborrow under this Section 2.03.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that
has made a Competitive Bid Advance, on the maturity date of such
Competitive Bid Advance (such maturity date being that specified by
such Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance), the then unpaid principal
amount of such Competitive Bid Advance. A Borrower shall have no right
to prepay any principal amount of any Competitive Bid Advance without
the consent of the Lender that has
19
made such Competitive Bid Advance or as is specified in the Notice of
Competitive Bid Borrowing.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance
comprising such Competitive Bid Borrowing to the date the principal
amount of such Competitive Bid Advance is repaid in full, at the rate
of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest
payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the
Competitive Bid Note evidencing such Competitive Bid Advance. Upon the
occurrence and during the continuance of an Event of Default under
Section 6.01(a), each Borrower that has borrowed through a Competitive
Bid Borrowing shall pay interest on the amount of unpaid principal of
and interest on each Competitive Bid Advance comprising such
Competitive Bid Borrowing that is owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to
be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive
Bid Borrowing shall be evidenced by a separate Competitive Bid Note of
such Borrower payable to the order of the Lender making such
Competitive Bid Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 2004, and on the Termination Date.
(b) AGENT'S FEES. The Company shall pay to the Agent for its
own account such fees as may from time to time be agreed in writing between the
Company and the Agent.
SECTION 2.05. TERMINATION, REDUCTION OR INCREASE OF THE
COMMITMENTS. (a) TERMINATION OR RATABLE REDUCTION BY THE COMPANY. The Company
shall have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided, further, that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances then
outstanding. The aggregate amount of the Commitments, once
20
reduced or terminated as provided in this Section 2.05(a), may not be
reinstated, except as provided in Section 2.05(c) below.
(b) TERMINATION BY THE MAJORITY LENDERS UPON CHANGE OF CONTROL.
In the event that a Change of Control occurs, (i) the Agent
shall at the request, or may with the consent, of the Majority Lenders,
by notice to the Company given not later than 10 Business Days after
receipt by the Lenders and the Agent of notice from the Company of such
Change of Control pursuant to Section 5.01(h)(iv), declare the
Commitments (determined without giving effect to any Competitive Bid
Reduction) to be terminated in whole, effective as of the date set
forth in such notice, provided, however, that such date shall be no
earlier than 10 Business Days after the Company's receipt of such
notice of termination and (ii) each Borrower's right to make a
Borrowing under this Agreement shall thereupon be suspended and shall
remain suspended until 10 Business Days after receipt by the Lenders
and the Agent of notice from the Company of such Change of Control
pursuant to Section 5.01(h)(iv) unless the Majority Lenders shall have
exercised their right to terminate the Commitments as provided in
clause (i) of this Section 2.05(b), in which case each Borrower's right
to make a Borrowing under this Agreement shall remain suspended until
the effective date of such termination. A notice of termination
pursuant to this Section 2.05(b) shall have the effect of accelerating
the outstanding Advances of the Lenders and the Notes of the Lenders
and each Borrower shall, on or prior to the effective date of the
termination of the Commitments, prepay or cause to be prepaid the
outstanding principal amount of all Advances owing by any such Borrower
to the Lenders, together with accrued interest thereon to the date of
such payment, any facility fees or other fees payable to the Lenders
pursuant to the provisions of Section 2.04, and all other amounts
payable to the Lenders under this Agreement (including, but not limited
to, any increased costs or other amounts owing under Section 2.11 and
any indemnification for Taxes under Section 2.14). Upon such prepayment
and the termination of the Commitments in accordance with this Section
2.05(b), the obligations of the Lenders under this Agreement shall, by
the provisions hereof, be released and discharged.
(c) INCREASE BY THE COMPANY. (i) The Company may at any time,
by notice to the Agent, propose that the aggregate amount of the
Commitments be increased (each such proposed increase being a
"Commitment Increase") by up to $600,000,000 in excess of the aggregate
of the Commitments as of the Effective Date, effective as at a date
(the "Commitment Increase Date") that shall be specified in such notice
and that shall be (A) prior to the Termination Date and (B) at least 15
Business Days after the date of such notice; provided, however, that
(w) the Company may not propose more than one Commitment Increase
during any calendar year, (x) the minimum proposed Commitment Increase
for each Commitment Increase Date shall be $50,000,000, (y) in no event
shall the aggregate amount of the Commitments at any time exceed
$1,500,000,000 and (z) no Default shall have occurred and be continuing
on such Commitment Increase Date or shall result from such Commitment
Increase. The Agent shall notify the Lenders and any Eligible Assignees
requested by the Company and acceptable to the Agent as potential
Assuming Lenders hereunder of the proposed Commitment Increase promptly
upon the Agent's receipt of any such notice. It shall be in each
Lender's sole discretion whether to increase its Commitment hereunder
in connection with the proposed Commitment Increase. No later than 10
Business Days after its receipt of the Company's notice, each Lender
that is willing to increase its Commitment hereunder (each such Lender
being an "Increasing Lender") shall deliver to the Agent a notice in
which such Lender shall set forth the maximum increase in its
Commitment to which such Lender is willing to agree, and the Agent
shall promptly provide to
21
the Company a copy of such Increasing Lender's notice. The Agent shall
cooperate with the Company in discussions with the Lenders and Eligible
Assignees with a view to arranging the proposed Commitment Increase through the
increase of the Commitments of one or more of the Lenders and/or the addition of
one or more Eligible Assignees acceptable to the Company and the Agent as
Assuming Lenders and as parties to this Agreement; provided, however, that the
minimum Commitment of each such Assuming Lender that becomes a party to this
Agreement pursuant to this Section 2.05(c) shall be $10,000,000; and provided
further that any allocations of Commitments shall be determined by the Company.
(ii) If agreement is reached prior to the relevant Commitment
Increase Date with any Increasing Lenders and Assuming Lenders as to a
Commitment Increase (the amount of which may be less than (subject to
the limitation set forth in clause (i)(x) of this Section 2.05(c)) but
not greater than that amount specified in the applicable notice from
the Company), the Company shall deliver, no later than one Business Day
prior to the Commitment Increase Date, a notice thereof in reasonable
detail to the Agent (and the Agent shall give notice thereof to the
Lenders, including any Assuming Lenders). The Assuming Lenders, if any,
shall become Lenders hereunder as of the Commitment Increase Date and
the Commitments of any Increasing Lenders and such Assuming Lenders
shall become or be, as the case may be, as of the Commitment Increase
Date, the amounts specified in the notice delivered by the Company to
the Agent; provided, however, that:
(x) the Agent shall have received on or prior to 9:00 A.M.
(New York City time) on the Commitment Increase Date (A) if requested
by an Assuming Lender or an Increasing Lender in accordance with
Section 2.18(a), a duly executed Revolving Credit Note from each
Borrower, dated as of the Commitment Increase Date and in substantially
the form of Exhibit A-1 hereto for such Assuming Lender, and dated the
date to which interest on the existing Revolving Credit Note of such
Borrower shall have been paid and in substantially the form of Exhibit
A-1 hereto for such Increasing Lender, in each case in an amount equal
to the Commitment of such Assuming Lender and such Increasing Lender
after giving effect to such Commitment Increase, (B) a certificate of a
duly authorized officer of the Company stating that no event has
occurred and is continuing, or would result from such Commitment
Increase, that constitutes a Default, and that each of the other
applicable conditions to such Commitment Increase set forth in this
Section 2.05(c) to be fulfilled by the Company has been satisfied and
(C) an opinion of counsel for the Company in substantially the form of
Exhibit G hereto, dated the Commitment Increase Date (with copies for
each Lender, including each Assuming Lender);
(y) with respect to each Assuming Lender, the Agent shall have
received, on or prior to 9:00 A.M. (New York City time) on the
Commitment Increase Date, an appropriate Assumption Agreement in
substantially the form of Exhibit D hereto, duly executed by such
Assuming Lender and the Company, and acknowledged by the Agent; and
(z) each Increasing Lender shall have delivered to the Agent,
on or prior to 9:00 A.M. (New York City time) on the Commitment
Increase Date, (A) its existing Revolving Credit Note or Notes, if any,
and (B) confirmation in writing satisfactory to
22
the Agent as to its increased Commitment, with a copy of such
confirmation to the Company.
(iii) Upon its receipt of confirmation from a Lender that it
is increasing its Commitment hereunder, together with the appropriate
Revolving Credit Note or Notes, if any, certificate and opinion
referred to in clause (ii)(x) above, the Agent shall (A) record the
information contained therein in the Register and (B) give prompt
notice thereof to the Company. Upon its receipt of an Assumption
Agreement executed by an Assuming Lender representing that it is an
Eligible Assignee, together with the appropriate Revolving Credit Note
or Notes, certificate and opinion referred to in clause (ii)(x) above,
the Agent shall, if such Assumption Agreement has been completed and is
in substantially the form of Exhibit D hereto, (x) accept such
Assumption Agreement, (y) record the information contained therein in
the Register and (z) give prompt notice thereof to the Company.
(iv) In the event that the Agent shall not have received
notice from the Company as to such agreement on or prior to the
Commitment Increase Date or the Company shall, by notice to the Agent
prior to the Commitment Increase Date, withdraw its proposal for a
Commitment Increase or any of the actions provided for above in clauses
(ii)(x) through (ii)(z) shall not have occurred by 9:00 A.M. (New York
City time) on the Commitment Increase Date, such proposal by the
Company shall be deemed not to have been made. In such event, any
actions theretofore taken under clauses (ii)(x) through (ii)(z) above
shall be deemed to be of no effect and all the rights and obligations
of the parties shall continue as if no such proposal had been made.
(v) In the event that the Agent shall have received notice
from the Company as to such agreement on or prior to the Commitment
Increase Date and each of the actions provided for in clauses (ii)(x)
through (ii)(z) above shall have occurred by 9:00 A.M. (New York City
time) on the Commitment Increase Date, the Agent shall notify the
Lenders (including any Assuming Lenders) of the occurrence of the
Commitment Increase Date promptly and in any event by 10:00 A.M. (New
York City time) on such date by telecopier, telex or cable. Each
Increasing Lender and each Assuming Lender shall, before 11:00 A.M.
(New York City time) on the Commitment Increase Date, make available
for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, in the case of such Assuming
Lender, an amount equal to such Assuming Lender's ratable portion of
the Revolving Credit Borrowings then outstanding (calculated based on
its Commitment as a percentage of the aggregate Commitments outstanding
after giving effect to the relevant Commitment Increase) and, in the
case of such Increasing Lender, an amount equal to the excess of (i)
such Increasing Lender's ratable portion of the Revolving Credit
Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect
to the relevant Commitment Increase) over (ii) such Increasing Lender's
ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment (without giving effect to the
relevant Commitment Increase) as a percentage of the aggregate
Commitments without giving effect to the relevant Commitment Increase).
After the Agent's receipt of such funds from each such Increasing
Lender and each such Assuming Lender, the Agent will promptly
thereafter cause to be distributed like funds to the other Lenders for
the account of their respective Applicable Lending Offices in an amount
to each other Lender such that the aggregate amount of the outstanding
Revolving Credit Advances owing to each Lender
23
after giving effect to such distribution equals such Lender's ratable
portion of the Revolving Credit Borrowings then outstanding (calculated based on
such Lender's Commitment as a percentage of the aggregate Commitments
outstanding after giving effect to the relevant Commitment Increase). If the
Commitment Increase Date shall occur on a date that is not the last day of the
Interest Period for all Eurodollar Rate Advances then outstanding, (a) the
Company shall pay any amounts owing pursuant to Section 9.04(d) as a result of
the distributions to Lenders under this Section 2.05(c)(v) and (b) for each
Revolving Credit Borrowing comprised of Eurodollar Rate Advances, the respective
Revolving Credit Advances made by the Increasing Lenders and the Assuming
Lenders pursuant to this Section 2.05(c)(v) shall be Base Rate Advances until
the last day of the then existing Interest Period for such Revolving Credit
Borrowing.
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES. Each
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding in respect of such Borrower.
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing by such Borrower to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee, if any, in effect from time to time,
payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time plus (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower
shall pay interest on (i) the unpaid principal amount of each Revolving
Credit Advance owing by such Borrower to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted
by law, the amount of any interest, fee or other amount payable
hereunder by such Borrower that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full,
24
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above
the rate per annum required to be paid on Base Rate Advances pursuant
to clause (a)(i) above.
(c) ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The
applicable Borrower shall pay to each Lender, so long as such Lender
shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar
Rate Advance of such Lender to such Borrower, from the date of such
Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the applicable Interest Period
for such Advance from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Advance. Such additional
interest shall be determined by such Lender and notified in reasonable
detail to such Borrower through the Agent.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the relevant Borrowers
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period (which cost each such Lender reasonably
determines in good faith is material), the Agent shall forthwith so notify each
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify each Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit
Borrowing comprised of Eurodollar Rate Advances, shall fail to select the
duration of the Interest Period for such Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in Section
1.01, the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or
25
otherwise, to less than $5,000,000, such Advances shall automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and
fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or
LIBO Rate Advances, as the case may be, such Eurodollar Rate or LIBO Rate shall
be the interest rate per annum determined by the Agent to be the offered rate
per annum at which deposits in U.S. dollars for a maturity comparable to the
Interest Period for such Eurodollar Rate Advances or LIBO Rate Advances, as the
case may be, appears on the Telerate Page 3750 (or any successor page) as of
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period (the "Telerate"); provided that if the Telerate is not then
available:
(i) the Agent shall forthwith notify the relevant Borrower
and the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances or LIBO Rate Advances, as the case may be;
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance); and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify each Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT
ADVANCES. Any Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances. Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
relevant Borrower.
SECTION 2.10. OPTIONAL PREPAYMENTS OF REVOLVING CREDIT
ADVANCES. Any Borrower may, upon notice to the Agent stating the proposed date
and aggregate principal
26
amount of the prepayment, given not later than 11:00 A.M. (New York City
time) on the second Business Day prior to the date of such proposed prepayment,
in the case of Eurodollar Rate Advances, and not later than 11:00 A.M. (New York
City time) on the day of such proposed prepayment, in the case of Base Rate
Advances, and, if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part of
the same Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, such Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(d). Each notice of prepayment by a Designated
Subsidiary shall be given to the Agent through the Company.
SECTION 2.11. INCREASED COSTS. (a) If, after the date hereof,
due to either (i) the introduction of or any change (other than any change by
way of imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or other
governmental authority having jurisdiction over any Lender (whether or not
having the force of law), there shall be any increase in the cost to any Lender
(which cost such Lender reasonably determines in good faith is material) of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances or
LIBO Rate Advances (excluding for purposes of this Section 2.11 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.14 shall govern) and (ii) Excluded Taxes), then the Borrower of such Advances
shall from time to time, upon demand by such Lender made not later than 60 days
after such Lender obtains knowledge of such increased costs (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. Each
Lender agrees that if such Lender requests compensation for any amounts owing
from a Borrower for such increased cost under this Section 2.11(a), such Lender
shall, prior to a Borrower being required to pay such increased costs, furnish
to such Borrower a certificate of a senior financial officer of such Lender
verifying that such increased cost was actually incurred by such Lender and the
amount of such increased cost and setting forth in reasonable detail the basis
therefore (with a copy of such certificate to the Agent); provided, however,
that such certificate shall be conclusive and binding for all purposes, absent
manifest error.
(b) If, after the date hereof, any Lender determines that
compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority having jurisdiction over any Lender
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender made not later than
60 days after such Lender obtains knowledge of such increase in capital (with a
copy of such demand to the Agent), the Company shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend
27
hereunder. Each Lender agrees that if such Lender requests compensation for
any amounts owing from the Company for such increase in capital under this
Section 2.11(b), such Lender shall, prior to a Borrower being required to
compensate such Lender for such increase in capital, furnish to the Company a
certificate of a senior financial officer of such Lender verifying that such
increase in capital was actually required by such Lender and the amount of such
increase in capital and setting forth in reasonable detail the basis therefore
(with a copy of such certificate to the Agent); provided, however, that such
certificate shall be conclusive and binding for all purposes, absent manifest
error.
(c) No Borrower shall be obligated to pay under this Section
2.11 any amounts which relate to costs or increases of capital incurred prior to
the 12 months immediately preceding the date of demand for payment of such
amounts, unless the applicable law, regulation, guideline or request resulting
in such costs or increases of capital is imposed retroactively. In the case of
any law, regulation, guideline or request which is imposed retroactively, the
Lender making demand for payment of any amount under this Section 2.11 shall
notify the related Borrower not later than 12 months from the date that such
Lender should reasonably have known (but promptly upon gaining knowledge of such
increase) of such law, regulation, guideline or request and such Borrower's
obligation to compensate such Lender for such amount is contingent upon such
Lender's so notifying such Borrower; provided, however, that any failure by such
Lender to provide such notice shall not affect such Borrower's obligations under
this Section 2.11 with respect to amounts resulting from costs or increases of
capital incurred after the date which occurs 12 months immediately preceding the
date on which such Lender notified such Borrower of such law, regulation,
guideline or request.
(d) If any Lender shall subsequently recoup any costs (other
than from a Borrower) for which such Lender has theretofore been compensated by
a Borrower under this Section 2.11, such Lender shall remit to such Borrower an
amount equal to the amount of such recoupment as reasonably determined by such
Lender.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision
of this Agreement, if any Lender shall after the date hereof, notify the Agent
that the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority having jurisdiction over any Lender asserts that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar
Rate Advance or LIBO Rate Advance, as the case may be, will automatically, upon
such demand, Convert into a Base Rate Advance or an Advance that bears interest
at the rate set forth in Section 2.07(a)(i), as the case may be, and (ii) the
obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify each Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower
shall make each payment hereunder and relating to the Advances not later than
1:00 P.M. (New York City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of
28
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.05(c), 2.07(c), 2.11, 2.14 or 9.04(d)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and relating to the Advances in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves. Upon any
Assuming Lender becoming a Lender hereunder as a result of the effectiveness of
a Commitment Increase pursuant to Section 2.05(c), and upon the Agent's receipt
of such Lender's Assumption Agreement and recording the information contained
therein in the Register, from and after the relevant Increase Date, the Agent
shall make all payments hereunder and relating to the Advances in respect of the
interest assumed thereby to such Assuming Lender.
(b) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of facility fees shall be made by the Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or relating to the Advances
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility fee,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Lenders from such
Borrower hereunder that such Borrower will not make such payment in full, the
Agent may assume that such Borrower has made such payment in full to the Agent
on such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. TAXES. (a) Any and all payments by each Borrower
hereunder or relating to the Advances shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or
29
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof or by any jurisdiction in which
such Lender or the Agent (as the case may be) is doing business that is
unrelated to this Agreement and such net income taxes or franchise taxes that
would not have been imposed if such Lender or the Agent (as the case may be) had
not been conducting such unrelated business and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such excluded taxes
being hereinafter referred to as "Excluded Taxes" and all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or relating to the Advances being hereinafter
referred to as "Taxes"). If any Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or relating to the
Advances to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions for Taxes
(including deductions for Taxes applicable to additional sums payable under this
Section 2.14) such Lender or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or relating to the
Advances or from the execution, delivery or registration of, performing under,
or otherwise with respect to, this Agreement or relating to the Advances
(hereinafter referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.14)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability for penalties, interest and reasonable expenses arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor; provided that such Lender shall, prior to a Borrower being required to
indemnify such Lender pursuant to this Section 2.14(c), furnish to such Borrower
a certificate of a senior financial officer of such Lender verifying that such
Taxes or Other Taxes were actually incurred by such Lender and the amount of
such Taxes or Other Taxes and setting forth in reasonable detail the basis
therefor (with a copy of such certificate to the Agent), provided, however, that
such certificate shall be conclusive and binding for all purposes, absent
manifest error.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing payment thereof.
In the case of any payment hereunder or relating to the Advances by or on behalf
of any Borrower through an account or branch outside the United States or by or
on behalf of any Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel
30
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and from
time to time thereafter as requested in writing by any Borrower (but only so
long as such Lender remains lawfully able to do so), shall provide the Agent and
each Borrower with two original Internal Revenue Service forms 8ECI or 8BEN, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
relating to the Advances. If the forms provided by a Lender at the time such
Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date.
(f) For any period with respect to which a Lender has failed
to provide each Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, each Borrower agrees to
take such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) If any Lender determines, in its sole discretion, that it
has actually and finally realized, by reason of a refund, deduction or credit of
any Taxes or Other Taxes paid or reimbursed by a Borrower pursuant to subjection
(a) or (c) above in respect of payments under the Credit Agreement or relating
to the Advances, a current monetary benefit that it would otherwise not have
obtained, and that would result in the total payments under this Section 2.14
exceeding the amount needed to make such Lender whole, such Lender shall pay to
such Borrower, with reasonable promptness following the date on which it
actually realizes such benefit, an amount equal to the lesser of the amount of
such benefit or the amount of such excess, in each case net of all reasonable
out-of-pocket expenses in securing such refund, deduction or credit.
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SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.05(c), 2.07(c), 2.11, 2.14 or
9.04(d)) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
solely (i) for general corporate purposes of such Borrower and its Subsidiaries
and (ii) for acquisitions by such Borrower that have been approved by the Board
of Directors (or comparable governing group) of the Person that is to be
acquired by such Borrower.
SECTION 2.17. MANDATORY ASSIGNMENT BY A LENDER; MITIGATION. If
any Lender requests from a Borrower either payment of additional interest on
Eurodollar Rate Advances pursuant to Section 2.07(c), or reimbursement for
increased costs pursuant to Section 2.11, or payment of or reimbursement for
Taxes pursuant to Section 2.14, or if any Lender notifies the Agent that it is
unlawful for such Lender or its Eurodollar Lending Office to perform its
obligations hereunder pursuant to Section 2.12, (i) such Lender will, upon three
Business Days' notice by such Borrower to such Lender and the Agent, to the
extent not inconsistent with such Lender's internal policies and applicable
legal and regulatory restrictions, use reasonable efforts to make, fund or
maintain its Eurodollar Rate Advances through another Eurodollar Lending Office
of such Lender if (A) as a result thereof the additional amounts required to be
paid pursuant to Section 2.07(c), 2.11 or 2.14, as applicable, in respect of
such Eurodollar Rate Advances would be materially reduced or the provisions of
Section 2.12 would not apply to such Lender, as applicable, and (B) as
determined by such Lender in good faith but in its sole discretion, the making
or maintaining of such Eurodollar Rate Advances through such other Eurodollar
Lending Office would not otherwise materially and adversely affect such
Eurodollar Rate Advances or such Lender and (ii) unless such Lender has
therefore taken steps to remove or cure, and has removed or cured (to the extent
not inconsistent with internal policies and applicable legal and regulatory
restrictions), the conditions creating such obligation to pay such additional
amounts or the circumstances described in Section 2.12, such Lender will, upon
at least five Business Days' notice from the Company to such Lender and the
Agent, assign, pursuant to and in accordance with the provisions of Section
9.07, to one or more Eligible Assignees designated by the Company all, but not
less than all, of the Revolving Credit
32
Advances then owing to such Lender and all, but not less than all, of such
Lender's rights and obligations hereunder (other than rights in respect of such
Lender's outstanding Competitive Bid Advance), without recourse to or warranty
by, or expense to, such Lender, for a purchase price equal to the outstanding
principal amount of each such Advance then owing to such Lender plus any accrued
but unpaid interest thereon and any accrued but unpaid facility fees owing
thereto and, in addition, all additional costs reimbursements, expense
reimbursements and indemnities, if any, owing in respect of such Lender's
Commitment hereunder at such time shall be paid to such Lender.
SECTION 2.18. EVIDENCE OF DEBT. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon reasonable notice by any Lender to such Borrower (with a copy of such
notice to the Agent) to the effect that a Revolving Credit Note is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Revolving Credit Advances owing to, or to
be made by, such Lender, such Borrower shall promptly execute and deliver to
such Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from such Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Agent from each Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
33
(a) There shall have occurred no Material Adverse Change since
December 31, 2003 except as disclosed by the Company in writing to the
Lenders prior to the date of execution of this Agreement.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no material adverse change in the status, or financial
effect on the Company and its Subsidiaries taken as a whole, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to
the proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses
of the Agent and the Lenders that shall have been invoiced as of the
Effective Date (including the accrued fees and expenses of counsel to
the Agent), in each case solely to the extent such fees and expenses
are required by other provisions of this Agreement to be so paid.
(f) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated
the Effective Date, stating that:
(i) The representations and warranties of the Company
contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(g) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
reasonably satisfactory to the Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order
of the Lenders, respectively, to the extent requested by any
Lender pursuant to Section 2.18.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement (including
the Commitment Increase
34
contemplated by Section 2.05(c)) and the Notes of the
Company, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
this Agreement and the Notes of the Company and the other
documents to be delivered hereunder.
(iv) A favorable opinion of Burton H. Snyder, Senior Vice
President, General Counsel and Secretary of the Company,
substantially in the form of Exhibit G hereto and as to such
other matters as any Lender through the Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling LLP, counsel
for the Agent, in form and substance satisfactory to the
Agent.
(vi) Such other approvals, opinions or documents as any
Lender, through the Agent, may reasonably request prior to the
Effective Date.
(h) The Company shall have terminated the commitments, and paid
in full all Debt, interest, fees and other amounts outstanding, under (i)
the $200,000,000 Amended and Restated Five-Year Credit Agreement dated as of
November 27, 2001 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Five-Year Credit Agreement") among the Company,
as borrower, the lenders and arrangers parties thereto and Citibank, as
administrative agent, (ii) the $200,000,000 Amended and Restated 364-Day Credit
Agreement dated as of November 27, 2001, amended and restated as of November 26,
2002 and further amended and restated as of November 25, 2003 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"364-Day Credit Agreement"), and (iii) the $500,000,000 364-Day Credit Agreement
dated as of July 28, 2004 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "2004 Credit Agreement") and each of
the Lenders that is a party to each such credit facility hereby waives, upon
execution of this Agreement, the three Business Days' notice required by Section
2.05 of the Five-Year Credit Agreement, Section 2.05 of the 364-Day Credit
Agreement and Section 2.05 of the 2004 Credit Agreement, respectively, relating
to the termination of commitments thereunder.
SECTION 3.02. INITIAL BORROWING OF EACH DESIGNATED SUBSIDIARY.
The obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.08 is subject to the Agent's receipt on or
before the date of such Initial Advance of each of the following, in form and
substance satisfactory to the Agent and dated such date, and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Borrower to the order
of the Lenders, respectively, to the extent requested by any Lender
pursuant to Section 2.18.
35
(b) Certified copies of the resolutions of the Board of
Directors of such Borrower approving this Agreement and the Notes of
such Borrower, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and such Notes.
(c) A certificate of the Secretary or an Assistant Secretary
of such Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
Notes of such Borrower and the other documents to be delivered
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control
approvals) and licenses required under applicable laws and regulations
necessary for such Borrower to execute and deliver this Agreement and
the Notes of such Borrower and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit E hereto.
(f) With respect to each Designated Subsidiary that has its
principal place of business outside of the United States of America,
evidence of the Process Agent's acceptance of its appointment pursuant
to Section 9.12(a) as the agent of such Borrower, substantially in the
form of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated
Subsidiary, dated the date of such Initial Advance, substantially in
the form of Exhibit H hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower requesting such Revolving Credit Borrowing of the
proceeds of such Revolving Credit Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Borrowing such statements
are true):
(i) the representations and warranties of the Company
contained in Section 4.01(except the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f) thereof
(other than clause (i)(B) thereof)) are correct on and as of the date
of such Revolving Credit Borrowing, before and after givingeffect to
such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and, if
such Borrower is a Designated Subsidiary, the representations and
warranties of such Borrower contained in its Designation Letter are
correct on and as of the date of such Revolving Credit Borrowing,
before and after giving
36
effect to such Revolving Credit Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (b) on or
before the date of such Competitive Bid Borrowing, but prior to such Competitive
Bid Borrowing, the Agent shall have received a Competitive Bid Note payable to
the order of such Lender for each of the one or more Competitive Bid Advances to
be made by such Lender as part of such Competitive Bid Borrowing, in a principal
amount equal to the principal amount of the Competitive Bid Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (c) on the date of
such Competitive Bid Borrowing the following statements shall be true (and each
of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower requesting such Competitive Bid Borrowing of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Competitive Bid Borrowing
such statements are true):
(i) the representations and warranties of the Company
contained in Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection (f) thereof
(other than clause (i)(B) thereof)) are correct on and as of the date
of such Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and, if such Borrower
is a Designated Subsidiary, the representations and warranties of such
Borrower contained in its Designation Letter are correct on and as of
the date of such Competitive Bid Borrowing, before and after giving
effect to such Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading.
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SECTION 3.05. DETERMINATIONS UNDER SECTION 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of
this Agreement and the Notes of the Company to be delivered by it, and
the consummation of the transactions contemplated hereby, are within
the Company's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Company's
charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting the Company, except where such contravention
would not be reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Company of this Agreement or the Notes of the
Company to be delivered by it, except for those authorizations,
approvals, actions, notices and filings (i) listed on Schedule 4.01(c)
hereto, all of which have been duly obtained, taken, given or made and
are in full force and effect and (ii) where the Company's failure to
receive, take or make such authorization, approval, action, notice or
filing would not have a Material Adverse Effect.
(d) This Agreement has been, and each of the Notes of the
Company to be delivered by it when delivered hereunder will have been,
duly executed and delivered by the Company. This Agreement is, and each
of the Notes of the Company when delivered hereunder will be, the
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an
38
opinion of KPMG LLP, independent public accountants, and the Consolidated
condensed balance sheet of the Company and its Subsidiaries as at July 4, 2004,
and the related Consolidated statements of income and condensed cash flows of
the Company and its Subsidiaries for the six months then ended, duly certified
by the chief financial officer of the Company, copies of which have been
furnished to each Lender, fairly present, subject, in the case of said balance
sheet as at July 4, 2004, and said statements of income and cash flows for the
six months then ended, to audit adjustments, the Consolidated financial
condition of the Company and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Company and its Subsidiaries for
the periods ended on such dates, all in accordance with accounting principles
generally accepted in the United States consistently applied; provided, however,
that said balance sheet and statements of income and cash flows for the six
months ended as at July 4, 2004 are instead prepared in accordance with
applicable rules and regulations of the Securities and Exchange Commission.
Since December 31, 2003, there has been no Material Adverse Change.
(f) (i) There is no pending or, to the Company's knowledge,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (A) would be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (B)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions
contemplated hereby, and (ii) there has been no adverse change in the
status, or financial effect on the Company and its Subsidiaries taken
as a whole, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.
(g) No proceeds of any Advance will be applied in any manner
that will violate or cause any Lender to violate Regulation U or
Regulation G issued by the Board of Governors of the Federal Reserve
System.
(h) The Company is not, and immediately after the application
by the Company of the proceeds of each Advance will not be, an
"investment company", or a company "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended.
(i) The Company and each of its Subsidiaries are in compliance
with all applicable laws, rules, regulations and orders, including,
without limitation, ERISA and Environmental Laws and Environmental
Permits, except where the failure to so comply would not be reasonably
likely to have a Material Adverse Effect.
(j) To the Company's knowledge, (i) all past non-compliance
with any Environmental Laws and Environmental Permits has been resolved
without ongoing obligations or costs except where the failure to so
comply would not be reasonably likely to have a Material Adverse Effect
and (ii) no circumstances exist that would be reasonably likely to (A)
form the basis of an Environmental Action against the Company or any of
its Subsidiaries or any of their properties that would be reasonably
likely to have a Material Adverse Effect or (B) cause any such property
to be subject to any
39
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would be reasonably likely to have a Material Adverse
Effect.
(k) No ERISA Event that would be reasonably likely to have a
Material Adverse Effect has occurred or is reasonably expected to occur
with respect to any Plan.
(l) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan whose "funded current
liability percentage" is less than 90% and whose "unfunded current
liability" exceeds $5,000,000 (as such terms are defined in Section
302(d)(8) of ERISA), copies of which have been filed with the Internal
Revenue Service and furnished to the Lenders, is complete and accurate
and fairly presents in all material respects the funding status of such
Plan.
(m) Neither the Company nor any ERISA Affiliate has
outstanding liability with respect to, or is reasonably expected to
incur any Withdrawal Liability to, any Multiemployer Plan that would be
reasonably likely to have a Material Adverse Effect.
(n) Neither the Company nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA, where such reorganization or termination
would be reasonably likely to have a Material Adverse Effect.
(o) Except as set forth in the financial statements referred
to in Section 4.01(e) and in Section 5.01(h), the Company and its
Subsidiaries taken as a whole have no material liability with respect
to "expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
the Company will:
(a) COMPLIANCE WITH LAWS, OBLIGATIONS, ETC. Comply, and cause
each of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws as provided in Section 5.01(i), except where the failure to so
comply would not be reasonably likely to have a Material Adverse
Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent if the failure to so pay and discharge would be reasonably
likely to have a Material Adverse Effect, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon its property
and (ii) all lawful claims that, if unpaid, will by law become a Lien
upon its property; provided, however, that neither the Company nor any
of its Subsidiaries shall be required
40
to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (or continue to maintain
self-insurance) in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Subsidiary operates.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(b) and
provided further that neither the Company nor any of its Subsidiaries
shall be required to preserve any right or franchise if the Board of
Directors of the Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and
that the loss thereof would not be reasonably likely to have a Material
Adverse Effect.
(e) AUTHORIZATIONS. Obtain, and cause each Designated
Subsidiary with a principal place of business outside the United States
to obtain, at any time and from time to time all authorizations,
licenses, consents or approvals (including exchange control approvals)
as shall now or hereafter be necessary or desirable under applicable
law or regulations in connection with such Designated Subsidiary's
making and performance of this Agreement and, upon the request of any
Lender, promptly furnish to such Lender copies thereof.
(f) KEEPING OF BOOKS. Keep, and cause each of its Material
Subsidiaries with a principal place of business in the United States to
keep, proper books of record and account, in which full and correct
entries in all material respects shall be made of all financial
transactions and the assets and business of the Company and each such
Subsidiary in accordance with generally accepted accounting principles
in effect from time to time.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where the
failure to do so would not be reasonably likely to have a Material
Adverse Effect.
(h) REPORTING REQUIREMENTS. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Company, Consolidated condensed balance
sheet of the Company and its Subsidiaries as of
41
the end of such quarter and Consolidated statements of
income and Consolidated condensed statements of cash flows
of the Company and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to
audit adjustments) by the chief financial officer of the
Company as having been prepared in accordance with
applicable rules and regulations of the Securities and
Exchange Commission and certificates of the chief financial
officer of the Company as to compliance with the terms of
this Agreement;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Company, a copy
of the annual report for such year for the Company and its
Subsidiaries, containing Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion of KPMG LLP or other nationally
recognized independent public accountants;
(iii) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the
date of such statement, a statement of the chief financial
officer of the Company setting forth the details of such
Default and the action that the Company has taken and proposes
to take with respect thereto;
(iv) as soon as possible and in any event within three
days after the occurrence of a Change of Control, notice of
such Change of Control setting forth the details of such
Change of Control;
(v) promptly after the sending or filing thereof,
copies of all reports that the Company sends to any of its
public securityholders, and copies of all reports and
registration statements that the Company or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(vi) (a) promptly and in any event within 20 days
after the Company or any ERISA Affiliate has actual knowledge
that an event that is an ERISA Event that has resulted or that
would be reasonably likely to result in a liability of the
Company or any ERISA Affiliate in an amount in excess of
$25,000,000 has occurred, a statement of the chief financial
officer or other authorized officer of the Company describing
such ERISA Event and the action, if any, that the Company or
such ERISA Affiliate has taken and proposes to take with
respect thereto and (b) on the date any records, documents or
other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information;
(vii) promptly and in any event within three Business
Days after receipt thereof by the Company or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan, where such notice, termination or
appointment has resulted
<page>
42
or would be reasonably likely to result in a liability
of the Company or any ERISA Affiliate in an amount in
excess of $25,000,000;
(viii) promptly and in any event within 30 days after
filing thereof with the Internal Revenue Services, copies of
each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan whose "funded
current liability percentage" is less than 90% and whose
"unfunded current liability" exceeds $5,000,000 (as such terms
are defined in Section 302(d)(8) of ERISA);
(ix) promptly and in any event within five Business
Days after receipt thereof by the Company or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the Company or
any ERISA Affiliate in connection with any event described in
clause (A) or (B), where such imposition, reorganization or
termination has resulted or would be reasonably likely to
result in a liability of the Company or any ERISA Affiliate in
an amount exceeding $25,000,000;
(x) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental
agency or arbitrator affecting the Company or any of its
Subsidiaries of the type described in Section 4.01(f); and
(xi) such other information respecting the Company or
any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
(i) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties, to comply with all applicable Environmental
Laws and Environmental Permits except where the failure to so comply
would not be reasonably likely to have a Material Adverse Effect.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a)LIENS, ETC. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property
or equipment acquired or held by the Company or any Subsidiary
of the Company in the ordinary course of business to secure
the purchase price of such property or
<page>
43
equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property
orequipment, or Liens existing on such property or equipment
at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not
incurred to finance the acquisition of such property) or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any properties of any
character other than the real property or equipment being
acquired, and no such extension, renewal or replacement
shall extend to or cover any properties not theretofore
subject to the Lien being extended, renewed or replaced,
(iii) any assignment of any right to receive income
existing on the Effective Date and any Liens existing on the
Effective Date,
(iv) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Company
or any Subsidiary of the Company or becomes a Subsidiary of
the Company; provided that such Liens do not extend to any
assets other than those of the Person so merged into or
consolidated with the Company or such Subsidiary or acquired
by the Company or such Subsidiary,
(v) other Liens or any other assignment of any right to
receive income (in addition to the Liens and assignments
permitted under clauses (i), (ii), (iii), (iv) or (vi))
securing Debt in an aggregate principal amount not to exceed
$450,000,000, and
(vi) the replacement, extension or renewal of any Lien
or any assignment of any right to receive income permitted by
clause (iii) or (iv) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby.
(b) MERGERS, ETC. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of the Borrower may merge or
consolidate with or into, or dispose of assets to, any other Subsidiary of the
Company, (ii) any Subsidiary of the Company may merge into or dispose of assets
to the Company and (iii) the Company or any of its Subsidiaries may merge with
any other Person so long as the Company or such Subsidiary is the surviving
entity, provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(c) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
SECTION 5.03. FINANCIAL COVENANT. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
shall maintain, as of
44
the end of each fiscal quarter, a ratio of (a) Pre-Tax Income from
Continuing Operations for the four fiscal quarters then ended to (b)
Consolidated Interest Expense for such four fiscal quarters of not less than 2.0
to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Advance within one Business Day after the same becomes due and payable; or
any Borrower shall fail to pay any interest on any Advance or make any other
payment of fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Company herein
or, if such Borrower is a Designated Subsidiary, in such Borrower's
Designation Letter, or by any Borrower in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (h)(iii), (iv) or
(vi)-(ix) or 5.02, or (ii) the Company or any other Borrower shall fail to
perform or observe any term, covenant or agreement contained in Section
5.01(h)(i), (ii), (v), (x) or (xi) if such failure shall remain unremedied for
10 days after written notice thereof shall have been given to the relevant
Borrower by the Agent or any Lender, or (iii) the Company or any other Borrower
shall fail to perform or observe any other term, covenant or agreement contained
in this Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been given
to the relevant Borrower by the Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least $125,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Borrower or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the
45
stated maturity thereof, unless the event giving rise to such prepayment,
redemption, purchase or defeasance is not related directly to any action taken
by, or the condition (financial or otherwise) or operations of, the Company, any
of its Subsidiaries, or any of their respective properties; or
(e) Any Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against any Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its
property) shall occur; or any Borrower or any of its Material Subsidiaries shall
take any corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $125,000,000 shall be rendered against any Borrower or any of its
Subsidiaries and there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) The Company or any ERISA Affiliate shall incur, or, in the
reasonable opinion of the Majority Lenders, shall be reasonably likely to
incur liability in excess of $125,000,000 in the aggregate as a result of one or
more of the following: (i) the occurrence of any ERISA Event; (ii) the partial
or complete withdrawal of the Company or any of its ERISA Affiliates from a
Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or
(h) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Company and the ERISA Affiliates related to such ERISA Event)
exceeds $125,000,000; or
(i) The Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Company and the ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $125,000,000; or
46
(j) The Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Company and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an amount
exceeding $125,000,000 in the aggregate;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Company and each other
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Company and each other Borrower, declare the Advances, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrowers;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances to such Borrower (or, if such
event has occurred in respect of the Company, to make Advances to any Borrower)
shall automatically be terminated and (B) the Advances, all such interest and
all such amounts owing by such Borrower (or, if such event has occurred in
respect of the Company, owing by all of the Borrowers) shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. GUARANTY. For valuable consideration, receipt
whereof is hereby acknowledged, and to induce each Lender to make Advances to
the Designated Subsidiaries and to induce the Agent to act hereunder, the
Company hereby unconditionally and irrevocably guarantees to each Lender and the
Agent the punctual payment when due, whether at stated maturity, by acceleration
or otherwise, of all obligations of the Designated Subsidiaries now or hereafter
existing under this Agreement or the Notes, whether for principal, interest,
fees, indemnities, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable and documented expenses
(including reasonable counsel fees and expenses) incurred by the Agent or any
Lender in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Company's liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and that would be owed by any
Designated Subsidiary to the Agent or any Lender under this Agreement and the
Notes but for the fact that such Guaranteed Obligations are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such Designated Subsidiary.
47
SECTION 7.02. GUARANTY ABSOLUTE. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The obligations of the Company under
this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement and the Notes, and
a separate action or actions may be brought and prosecuted against the Company
to enforce the obligations of the Company under this Guaranty, irrespective of
whether any action is brought against any Borrower or whether any Borrower is
joined in any such action or actions. The liability of the Company under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
the Company hereby irrevocably waives any defenses it may now or hereafter have
in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement
or the Notes, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement or the Notes, or
any other amendment or waiver of or any consent to departure from this Agreement
or any Note, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Designated
Subsidiary or any of its Subsidiaries or otherwise;
(c) any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Designated Subsidiary or any of its
Subsidiaries;
(e) any failure of the Agent or any Lender to disclose to the
Company or any Designated Subsidiary any information relating to the
financial condition, operations, properties or prospects of any Designated
Subsidiary now or in the future known to the Agent or such Lender, as the case
may be (the Company waiving any duty on the part of the Agent or the Lenders to
disclose such information); or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute a
defense available to, or a discharge of, any Designated Subsidiary or the
Company or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender upon the insolvency,
bankruptcy or reorganization of any Designated Subsidiary or otherwise, all as
though such payment had not been made.
SECTION 7.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The Company
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Agent or any Lender
48
exhaust any right or take any action against any Designated Subsidiary or any
other Person, and all other notices and demands whatsoever.
(b) The Company hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and the Notes and that the waivers set forth in this Section 7.03
are knowingly made in contemplation of such benefits.
SECTION 7.04. SUBROGATION. The Company will not exercise any
rights that it may now or hereafter acquire against any Designated Subsidiary or
any other insider guarantor that arise from the existence, payment, performance
or enforcement of the Company's obligations under this Guaranty or any provision
of this Agreement or the Notes, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Agent or any Lender against
such Designated Subsidiary or any other insider guarantor or any collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from such Designated Subsidiary or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or terminated. If any amount shall be paid to the Company in violation
of the preceding sentence at any time prior to the later of the payment in full
in cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and the Termination Date, such amount shall be held in trust for the
benefit of the Agent and Lenders and shall forthwith be paid to the Agent to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of this Agreement and any Notes, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) the Company shall make payment to the Agent or any Lender of all or any part
of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Termination Date shall have occurred, the Agent and the Lenders will,
at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment by the Company.
SECTION 7.05. CONTINUING GUARANTY; ASSIGNMENTS UNDER THE
CREDIT AGREEMENT. This Guaranty is a continuing guaranty and shall (a) remain in
full force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Agreement and
the Termination Date, (b) be binding upon the Company, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agent and the
Lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of
49
its Commitment, the Advances owing to it and any Note or Notes held by it)
to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise,
in each case as and to the extent provided in Section 9.07 of this Agreement.
SECTION 7.06. NO STAY. The Company agrees that, as between (a)
the Company and (b) the Lenders and the Agent, the Guaranteed Obligations of any
Designated Subsidiary guaranteed by the Company hereunder may be declared to be
forthwith due and payable as provided in Article VI hereof for purposes of this
Guaranty by declaration to the Company as guarantor notwithstanding any stay,
injunction or other prohibition preventing such declaration as against such
Designated Subsidiary and that, in the event of such declaration to the Company
as guarantor, such Guaranteed Obligations (whether or not due and payable by
such Designated Subsidiary), shall forthwith become due and payable by the
Company for purposes of this Guaranty.
ARTICLE VIII
THE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Advances), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Advances; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.07; (b) may consult with legal counsel (including counsel for any
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Borrower
or to inspect the property (including the books and
50
records) of any Borrower; (e) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; and (f) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. CITIBANK AND AFFILIATES. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. LENDER CREDIT DECISION. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by a Borrower.
SECTION 8.06. SUCCESSOR AGENT. The Agent may resign at any
time by giving written notice thereof to the Lenders and each Borrower and may
be removed at any time with or without cause by the Majority Lenders and such
resignation or removal shall be effective upon
51
the appointment of a successor Agent. Upon any such resignation or removal,
the Majority Lenders shall have the right to appoint a successor Agent, subject
to the Company's approval (which shall not be unreasonably withheld). If no
successor Agent shall have been so appointed by the Majority Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $250,000,000, subject to the Company's approval (which shall
not be unreasonably withheld). Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) increase the Commitment of any Lender (other than as provided for
in Section 2.05(c)) or subject any Lender to any additional monetary
obligations, (b) reduce the principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (c) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Notes or any fees or other amounts payable hereunder, (d) release the Company
from any of its obligations under Article VII or limit the liability of the
Company thereunder or (e) amend or waive this Section 9.01 or the definition of
"Majority Lenders"; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note.
SECTION 9.02. NOTICES, ETC.(a) All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered, if to the Company or to any Designated
Subsidiary, at the Company's address at Corporate Headquarters, 100 Crystal A
Drive, Hershey, Pennsylvania 17033-0810, Attention: Treasury Department, Fax No.
(717) 534-6724; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assumption Agreement or the Assignment
and Acceptance, as the case may be, pursuant to which it became a Lender; and if
to the Agent, at its address at Two Penn's Way, New Castle, Delaware 19720,
Attention: Bank Loan Syndications, Fax No. (302) 894-6120; or, as to any
52
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Agent; provided that materials as may be agreed between the
Borrowers and the Agent may be delivered to the Agent in accordance with clause
(b) below. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VIII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
such materials as may be agreed between the Borrowers and the Agent may be
delivered to the Agent in an electronic medium in a format acceptable to the
Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com. The Borrowers
agree that the Agent may make such materials (collectively, the
"Communications") available to the Lenders by posting such notices on Intralinks
or a substantially similar electronic system (the "Platform"). The Borrowers
acknowledge that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is" and "as
available" and (iii) neither the Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the
next sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Agent in writing of such Lender's e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
53
SECTION 9.04. COSTS AND EXPENSES. (a) The Company agrees to
pay or cause to be paid on demand all reasonable and documented costs and
expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, messenger costs and expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Company further agrees to pay or
cause to be paid on demand all reasonable and documented costs and expenses of
the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by any Borrower or the directors, shareholders or
creditors of any Borrower or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense results from such Indemnified Party's
gross negligence or willful misconduct.
(c) Promptly after receipt by an Indemnified Party of notice
of the commencement of any action or proceeding involving any claim, damage,
loss or liability referred to in paragraph (b) above, such Indemnified Party
will, if a claim in respect thereof is to be made against any Borrower, give
written notice to such Borrower of the commencement of such action; provided
that the failure of any Indemnified Party to give notice as provided in this
Section 9.04(c) shall not relieve such Borrower of its obligations under
paragraph (b) above, except only to the extent that such Borrower actually
suffers damage solely as a result of such failure to give notice. In the event
that any such action or proceeding is brought against an Indemnified Party,
unless in such Indemnified Party's sole judgment (based on advise of counsel) a
conflict of interest between such Indemnified Party and a Borrower may exist in
respect thereof, such Borrower shall be entitled to participate in and to assume
the defense thereof with counsel reasonably satisfactory to such Indemnified
Party. After notice from such Borrower to such Indemnified Party of its election
to assume the defense thereof, such Borrower shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof (other than reasonable
costs of investigation). No Borrower shall consent to the entry of any dismissal
or judgment, or enter
54
into any settlement of any pending or threatened action or proceeding
against any Indemnified Party that is or could have been a party and for whom
indemnity could have been sought under paragraph (b) above without the consent
of such Indemnified Party unless such judgment, dismissal or settlement includes
as an unconditional term thereof the giving of a release from all liability in
respect of such action or proceeding to such Indemnified Party; provided that
each Indemnified Party agrees that, if a Borrower reconfirms to such Indemnified
Party that it is indemnified from all liability in respect of any such action or
proceeding referred to in the preceding sentence, such Indemnified Party will
not enter into any settlement of any such action or proceeding without the
consent of such Borrower (which consent shall not be unreasonably withheld). In
addition to the foregoing, each Borrower shall not, in assuming the defense of
any Indemnified Party, agree to any dismissal or settlement without the prior
written consent of such Indemnified Party if such dismissal or settlement (A)
would require any admission or acknowledgement of culpability or wrongdoing by
such Indemnified Party or (B) would provide for any nonmonetary relief to any
Persons to be performed by such Indemnified Party.
(d) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by any Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of (i) a payment or Conversion pursuant to Section
2.03(d), 2.10 or 2.12, (ii) a Commitment Increase pursuant to Section 2.05(c),
(iii) acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, or (iv) by an Eligible Assignee to a Lender other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07(a) as a
result of a demand by the Company pursuant to Section 2.17, such Borrower shall,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably and
actually incur as a result of such payment or Conversion, including, without
limitation, any loss (other than loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement
of any Borrower hereunder, the agreements and obligations of such Borrower
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and relating to the
Advances.
SECTION 9.05. RIGHT OF SET-OFF. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Advances due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final but excluding trust
accounts) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Borrower against any and all
of the obligations of such Borrower now or hereafter existing under this
Agreement and the Note of such Borrower held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note. Each Lender
agrees promptly to notify the relevant Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such
55
set-off and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
SECTION 9.06. BINDING EFFECT. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of each
Borrower, the Agent and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Lenders.
SECTION 9.07. ASSIGNMENTS, DESIGNATIONS AND PARTICIPATIONS.
(a) Each Lender may at any time, and if demanded by the Company pursuant to
Section 2.17, shall assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Credit Advances owing to it and the
Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive
Bid Notes), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Company pursuant to Section 2.17 shall be arranged by the
Company after consultation with the Agent and shall be either an assignment of
all of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover all
of the rights and obligations of the assigning Lender under this Agreement, (v)
no Lender shall be obligated to make any such assignment as a result of a demand
by the Company pursuant to Section 2.17 (A) so long as a Default shall have
occurred and be continuing, (B) unless and until such Lender shall have received
one or more payments from either the Company, any other Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement (including, but not
limited to, any amounts owing under Section 2.11 and Section 2.14), and the
Company shall have satisfied all of its other obligations under this Agreement
as of the effective date of the assignment and (C) if any such Eligible Assignee
is not an existing Lender, the Company shall have paid to the Agent a processing
and recordation fee of $1,000, (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and, if such assignment does not occur as a result of
a demand by the Company pursuant to Section 2.17 (in which case the Company
shall pay the fee required by clause (v)(C) of this Section 9.07(a)), a
56
processing and recordation fee of $3,500, and (vii) in the case of an assignment
to any Affiliate of such Lender that is engaged in the business of commercial
banking, notice thereof shall have been given to the Company and the Agent. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01(e), the most recent financial statements referred to in Section
5.01(h) and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to each Borrower.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the
57
recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and each Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than any Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to any Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) each Borrower, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by any Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Advances or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation. Each Lender agrees
that, promptly upon selling any such participation in accordance with this
Section 9.07(e), such Lender shall deliver written notice thereof to the
Company.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee, or participant or proposed assignee, or
participant, any information relating to the Company or any other Borrower
furnished to such Lender by or on behalf of such Borrower; provided that, prior
to any such disclosure, the assignee, or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information relating to such Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. DESIGNATED SUBSIDIARIES. (a) DESIGNATION. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes
58
of this Agreement and, as such, shall have all of the rights and
obligations of a Borrower hereunder. The Agent shall promptly notify each Lender
of each such designation by the Company and the identity of the respective
Subsidiary.
(b) TERMINATION. Upon the payment and performance in full of
all of the indebtedness, liabilities and obligations under this Agreement and
relating to the Advances of any Designated Subsidiary then, so long as at the
time no Notice of Revolving Credit Borrowing or Notice of Competitive Bid
Borrowing in respect of such Designated Subsidiary is outstanding, such
Subsidiary's status as a "Designated Subsidiary" shall terminate upon notice to
such effect from the Agent to the Lenders (which notice the Agent shall give
promptly upon its receipt of a request therefor from the Company). Thereafter,
the Lenders shall be under no further obligation to make any Advance hereunder
to such Designated Subsidiary.
SECTION 9.09. CONFIDENTIALITY. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the relevant Borrower, other than (a) to the Agent's or such
Lender's officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a need-to-know and confidential basis in
connection with the transactions contemplated by this Agreement, (b) pursuant to
subpoena or other legal process or as otherwise required by law (provided that
the Person making such disclosure shall, to the extent permitted by law, provide
the Company with notice thereof), and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking having
jurisdiction over any Lender.
SECTION 9.10. GOVERNING LAW. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.11. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. JURISDICTION, ETC. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits to the exclusive
jurisdiction only of any New York State court or federal court of the United
States of America sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined only in any such New York State court or, to the extent permitted by
law, in such federal court. Notwithstanding the foregoing sentence, each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each Designated Subsidiary that
has its principal place of business outside of the United States of America
hereby agrees that service of process in any such action or proceeding may be
made upon the Company at its offices specified in Section 9.02 (the
59
"Process Agent") and each such Designated Subsidiary hereby irrevocably
appoints the Process Agent its authorized agent to accept such service of
process, and agrees that the failure of the Process Agent to give any notice of
any such service shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon. Each Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its address
set forth in Section 9.02. Nothing in this Agreement shall affect any right that
any party may otherwise have to serve legal process in any other manner
permitted by law. To the extent that any Designated Subsidiary has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, such Designated Subsidiary hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court of the United States of America sitting
in New York City. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.13. PATRIOT ACT. Each Lender hereby notifies each
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies each borrower,
guarantor or grantor (the "Loan Parties"), which information includes the name
and address of each Loan Party and other information that will allow such Lender
to identify such Loan Party in accordance with the Act.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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.
HERSHEY FOODS CORPORATION
By: /s/ Frank Cerminara
-----------------------------
Title: Senior Vice President, Chief
Financial Officer
By: /s/ Robert J. Mazzoni
--------------------------------
Title: Vice President, Global Sourcing
& Treasurer
CITIBANK, N.A.,
as Administrative Agent
By: /s/ Carolyn A. Kee
------------------
Title: Vice President
Lenders
CITIBANK, N.A.
By: /s/ Carolyn A. Kee
------------------
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ William F. Sweeney
--------------------------
Title: Senior Vice President
UBS LOAN FINANCE LLC
By: /s/ Dora Mesa
------------------
Title: Associate Director
By: /s/ Joselin Fernandes
----------------------
Title: Associate Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Meredith Jermann
--------------------
Title: Vice President
2
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ David Wasserman
---------------------------
Title: Vice President and
Department Head
MERRILL LYNCH BANK USA
By: /s/ Louis Adler
-----------------------
Title: Director
CIBC, INC.
By: /s/ Dominic J. Soresso
------------------------------
Title: Executive Director, CIBC World
Markets Corp., as Agent
NORTHERN TRUST COMPANY
By: /s/ John Konstantos
---------------------------
Title: Vice President
U.S. AGBANK, FCB
By: /s/ Patrick Zela
------------------------
Title: Vice President
SCHEDULE I TO THE AMENDMENT AND RESTATEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Bank of America, N.A. $190,000,000 901 Main Street, 14th Floor 901 Main Street, 14th Floor
Dallas, TX 75202 Dallas, TX 75202
Attn: Sam Brown Attn: Sam Brown
T: (214) 209-9262 T: (214) 209-9262
F: (214) 290-9519 F: (214) 290-9519
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
CIBC Inc. $20,000,000 425 Lexington Avenue 425 Lexington Avenue
New York, NY 10017 New York, NY 10017
Attn: Dominic Sorresso Attn: Dominic Sorresso
T: (212) 856-4133 T: (212) 856-4133
F: (212) 856-3991 F: (212) 856-3991
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Citibank, N.A. $190,000,000 Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: Bank Loan Syndications Attn: Bank Loan Syndications
T: (302) 894-6029 T: (302) 894-6029
F: (212) 994-0961 F: (212) 994-0961
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Merrill Lynch Bank $50,000,000
USA
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Northern Trust Company $60,000,000 50 S. LaSalle Street 50 S. LaSalle Street
Chicago, IL 60675 Chicago, IL 60675
Attn: Linda Honda Attn: Linda Honda
T: (312) 444-4715 T: (312) 444-4715
F: (312) 630-1566 F: (312) 630-1566
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
PNC Bank, National $75,000,000 1600 Market Street 1600 Market Street
Association MS F2 F07021 5 MS F2 F07021 5
Philadelphia, PA 19103 Philadelphia, PA 19103
Attn: Robert F. Giannone Attn: Robert F. Giannone
T: (215) 585-7630 T: (215) 585-7630
F: (215) 585-6987 F: (215) 585-6987
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
Sumitomo Mitsui Banking $75,000,000 277 Park Avenue 277 Park Avenue
Corporation New York, NY 10172 New York, NY 10172
Attn: Tracey Watson Attn: Tracey Watson
T: (212) 224-4393 T: (212) 224-4393
F: (212) 224-5197 F: (212) 224-5197
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
UBS Loan Finance LLC $190,000,000 677 Washington Blvd. 677 Washington Blvd.
Stamford, CT 06901 Stamford, CT 06901
Attn: Denise Conzo Attn: Denise Conzo
T: (203) 719-3853 T: (203) 719-3853
F: (203) 719-3888 F: (203) 719-3888
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
U.S. AgBank, FCB $50,000,000
- ------------------------------ ----------------------- ---------------------------------- -------------------------------
TOTAL OF $900,000,000
COMMITMENTS
</table>
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
NONE
SCHEDULE 4.01(c)
REQUIRED AUTHORIZATIONS AND APPROVALS
NONE
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: November __, 2004
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances (as defined in the Credit Agreement referred to below)
made by the Lender to the Borrower pursuant to the Five Year Credit Agreement
dated as of November 12, 2004 among Hershey Foods Corporation, the Lender and
certain other lenders party thereto, Citibank, N.A., as administrative agent
(the "Agent") for the Lender and such other lenders, Bank of America, N.A., as
syndication agent, UBS Loan Finance LLC, as documentation agent, and Citigroup
Global Markets Inc. and Banc America Securities LLC, as joint lead arrangers and
joint book managers (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined),
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at the Agent's Account in
same day funds. Each Revolving Credit Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances by the Lender to the Borrower and each other "Borrower"
thereunder from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Revolving Credit Advance being evidenced
by this Promissory Note, and (ii) contains provisions in Sections 6.01 and 2.10,
respectively, for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
2
This promissory note shall be governed by, and construed in
accordance with the laws of the State of New York.
[NAME OF BORROWER]
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
================ ============= ============== ============== ================ ======================= ==========================
Date Amount Interest Interest Amount of Unpaid Principal Notation
of Rate Period Principal Paid Balance Made By
Advance or Prepaid
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
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- ---------------- ------------- -------------- -------------- ---------------- ----------------------- --------------------------
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================ ============= ============== ============== ================ ======================= ==========================
</table>
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
______________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Five Year Credit Agreement dated as
of November 12, 2004 among Hershey Foods Corporation, the Lender and certain
other lenders party thereto, Citibank, N.A., as administrative agent (the
"Agent") for the Lender and such other lenders, Bank of America, N.A., as
syndication agent, UBS Loan Finance LLC, as documentation agent, and Citigroup
Global Markets Inc. and Banc America Securities LLC, as joint lead arrangers and
joint book managers (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)), on
_______________, the principal amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A. for the account of the Lender at the
Agent's Account in same day funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions in Section 6.01 for
acceleration of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
Two Penn's Way
New Castle, Delaware 19720 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year
Credit Agreement, dated as of November 12, 2004 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among Hershey Foods Corporation, certain Lenders
party thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, Bank of America, N.A., as syndication agent, UBS Loan Finance LLC, as
documentation agent, and Citigroup Global Markets Inc. and Banc America
Securities LLC, as joint lead arrangers and joint book managers, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Revolving Credit Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit
Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties of the Company
contained in Section 4.01 of the Credit Agreement (except the
representations set forth in the last sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (i)(B)
thereof) are correct, before and after giving effect to the Proposed
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date*[and the
__________________________________
* This language should be added only if the Borrower is a Designated
Subsidiary.
2
representations and warranties contained in the Designation Letter of
the undersigned is correct, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date]; and
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
Two Penn's Way
New Castle, Delaware 19720 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year
Credit Agreement, dated as of November 12, 2004 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among Hershey Foods Corporation, certain Lenders
party thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, Bank of America, N.A., as syndication agent, UBS Loan Finance LLC, as
documentation agent, and Citigroup Global Markets Inc. and Banc America
Securities LLC, as joint lead arrangers and joint book managers, and hereby
gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests a Competitive Bid Borrowing under the
Credit Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Competitive Bid Borrowing _____________________
(B) Principal Amount
of Competitive Bid Borrowing _____________________
(C) [Maturity Date] [Interest Period]* _____________________
(D) Interest Rate Basis
(LIBO Rate or Fixed Rate) _____________________
(E) Interest Payment Date(s) _____________________
(F) ___________________ _____________________
(G) ___________________ _____________________
(H) ___________________ _____________________
__________________________
* Which shall be subject to the definition of "Interest Period" and end on
or before the Termination Date.
2
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties of the Company
contained in Section 4.01 (except the representations set forth
in the last sentence of subsection (e) thereof and in subsection
(f) thereof (other than clause (i)(B) thereof)) are correct,
before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date*[and the representations and
warranties contained in the Designation Letter of the undersigned
is correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date];
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has
been provided to the Agent and each Lender by the undersigned in
connection with the Credit Agreement would include an untrue statement
of a material fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
Title:
_____________________________
* This language should be added only if the Borrower is a Designated
Subsidiary.
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the Five Year Credit Agreement dated as
of November 12, 2004 (as amended or modified from time to time, the "Credit
Agreement") among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement), Citibank, N.A., as
administrative agent (the "Agent") for the Lenders, Bank of America, N.A., as
syndication agent, UBS Loan Finance LLC, as documentation agent, and Citigroup
Global Markets Inc. and Banc America Securities LLC, as joint lead arrangers and
joint book managers. Terms defined in the Credit Agreement are used herein with
the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances and Competitive
Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) 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; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made 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) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches each Revolving Credit
Note of a Borrower held by the Assignor and requests that the Agent exchange
each Revolving Credit Note for a new Revolving Credit Note of such Borrower
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Revolving Credit Notes of such
Borrower payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
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
financial statements referred to in Section 4.01(e) thereof,
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the most recent financial statements referred to in Section 5.01(h) 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
the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (iv)
confirms that it is an Eligible Assignee; (v) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (vi) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vii) attaches any U.S. Internal Revenue
Service forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent
pursuant to Section 9.07 of the Credit Agreement. The effective date for this
Assignment and Acceptance (the "Effective Date") shall be the date of acceptance
hereof by the Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender 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.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Credit Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Revolving Credit Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _________%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $__________
Principal amount of Revolving Credit Note payable to Assignee: $__________
Principal amount of Revolving Credit Note payable to Assignor: $__________
Effective Date*: _______________
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
___________________________
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
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Accepted and Approved this
__________ day of _______________
CITIBANK, N.A., as Agent
By
Title:
Approved this __________ day
of _______________
HERSHEY FOODS CORPORATION
By
Title:
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated: ________
Hershey Foods Corporation
Corporate Headquarters
Hershey, Pennsylvania 17033-0810
Attention: Treasury Department
Citibank, N. A.
as Agent
Two Penn's Way
New Castle, Delaware 19720
Attention: Bank Loan Syndications
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement, dated as
of November 12, 2004 (as amended or modified from time to time, the "Credit
Agreement"), among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement) party thereto,
Citibank, N.A., as administrative agent for such Lenders (the "Agent"), Bank of
America, N.A., as syndication agent, UBS Loan Finance LLC, as documentation
agent, and Citigroup Global Markets Inc. and Banc America Securities LLC, as
joint lead arrangers and joint book managers. Terms defined in the Credit
Agreement are used herein with the same meaning.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.05(c) of the Credit Agreement and, in that
connection, hereby agrees that it shall become a Lender for purposes of the
Credit Agreement on [applicable Commitment Increase Date] and that its
Commitment shall as of such date be $__________.
The undersigned (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01(e) thereof, the most recent financial statements referred to
in Section 5.01(h) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assumption Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender; (v) confirms that it
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is an Eligible Assignee; (vi) specifies as its Applicable Lending Offices
(and address for notices) the offices set forth beneath its name on the
signature pages hereof; and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States required under Section 2.14 of the Credit
Agreement.
The effective date for this Assumption Agreement shall be
[applicable Commitment Increase Date.] Upon delivery of this Assumption
Agreement to the Company and the Agent, and satisfaction of all conditions
imposed under Section 2.05(c) as of [date specified above], the undersigned
shall be a party to the Credit Agreement and shall have all of the rights and
obligations of a Lender thereunder. As of [date specified above], the Agent
shall make all payments under the Credit Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees) to the Assuming Lender.
This Assumption Agreement may be executed in counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[Address]
Acknowledged and Agreed to:
HERSHEY FOODS CORPORATION
By______________________
Name:
Title:
CITIBANK, N.A.,
As Agent
By______________________
Name:
Title:
EXHIBIT E - FORM OF
DESIGNATION LETTER
[DATE]
To Citibank, N.A.,
as Agent for the Lenders
party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as
of November 12, 2004 (the "Credit Agreement") among Hershey Foods Corporation
(the "Company"), the Lenders named therein, Citibank, N.A., as administrative
agent (the "Agent") for said Lenders, Bank of America, N.A., as syndication
agent, UBS Loan Finance LLC, as documentation agent, and Citigroup Global
Markets Inc. and Banc America Securities LLC, as joint lead arrangers and joint
book managers. For convenience of reference, terms used herein and defined in
the Credit Agreement shall have the respective meanings ascribed to such terms
in the Credit Agreement.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ____________ (the "Designated Subsidiary"), as a
"Designated Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
1. The Designated Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the laws of
__________________ and is duly qualified to transact business in all
jurisdictions in which such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement and the
Notes of such Designated Subsidiary, and the consummation of the
transactions contemplated thereby, are within the Designated
Subsidiary's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not contravene (i) the
charter or by-laws of the Designated Subsidiary or (ii) law or any
contractual restriction binding on or affecting the Designated
Subsidiary.
3. This Designation Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will have been duly executed and
delivered, and this Designation Letter, the Credit Agreement and each
of the Notes of the Designated Subsidiary, when delivered, will
constitute the legal, valid and binding obligations of the Designated
Subsidiary enforceable against the Designated Subsidiary in accordance
with
2
their respective terms except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar
laws affecting creditors' rights generally.
4. There is no pending or threatened action, suit,
investigation, litigation or proceeding including, without limitation,
any Environmental Action, affecting the Designated Subsidiary or any of
its Subsidiaries before any court, governmental agency or arbitrator
that (i) could be reasonably likely to have a Material Adverse Effect,
or (ii) purports to effect the legality, validity or enforceability of
this Designation Letter, the Credit Agreement, any Note of the
Designated Subsidiary or the consummation of the transactions
contemplated thereby.
5. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or administrative
or regulatory body or any other third party are required in connection
with the execution, delivery or performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement or the
Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, licenses, filings or registrations as have
heretofore been made, obtained or effected and are in full force and
effect.
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each
Advance will not be, an "investment company", or an "affiliated person"
of, or "promotor" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended.
Very truly yours,
HERSHEY FOODS COMPANY
By_________________________
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Title:
EXHIBIT F - FORM OF
ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders party
to the Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain Five Year Credit
Agreement, dated as of November 12, 2004, among Hershey Foods Corporation (the
"Company"), the Lenders named therein, Citibank, N.A., as administrative agent
(the "Agent") for said Lenders, Bank of America, N.A., as syndication agent, UBS
Loan Finance LLC, as documentation agent, and Citigroup Global Markets Inc. and
Banc America Securities LLC, as joint lead arrangers and joint book managers (as
hereafter amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined), and (ii) to the Designation Letter, dated _________, pursuant to which
__________ has become a Borrower under the Credit Agreement.
Pursuant to Section 9.12(a) of the Credit Agreement,
__________ has appointed the Company (with an office on the date hereof at
Corporate Headquarters, 100 Crystal A Drive, Hershey, Pennsylvania 17033-0810,
United States) as Process Agent to receive on behalf of ______________ service
of copies of the summons and complaint and any other process which may be served
in any action or proceeding in any New York State or Federal court of the United
States of America sitting in New York City arising out of or relating to the
Credit Agreement.
The Company hereby accepts such appointment as Process Agent
and agrees with each of you that (i) the undersigned will not terminate or
abandon the undersigned agency as such Process Agent without at least six
months' prior notice to the Agent (and hereby acknowledges that the undersigned
has been retained for its services as Process Agent through __________), (ii)
the undersigned will maintain an office in the United States through such date
and will give the Agent prompt notice of any change of address of the
undersigned, (iii) the undersigned will perform its duties as Process Agent to
receive on behalf of ______________ service of copies of the summons and
complaint and any other process which may be served in any action or proceeding
in any New York State or Federal court of the United States of America sitting
in New York City arising out of or relating to the Credit Agreement and (iv) the
2
undersigned will forward forthwith to ______________ at its address at
________________ or, if different, its then current address, copies of any
summons, complaint and other process which the undersigned receives in
connection with its appointment as Process Agent.
This acceptance and agreement shall be binding upon the
undersigned and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_______________________
EXHIBIT G - FORM OF
OPINION OF BURTON H. SNYDER, SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
OF THE COMPANY
[Effective Date]
To each of the Lenders party
to the Credit Agreement referred
to below and to Citibank, N.A., as
Agent for such Lenders
Hershey Foods Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.01(g)(iv) of the Five Year Credit Agreement, dated as of November 12, 2004
(the "Credit Agreement"), among Hershey Foods Corporation (the "Company"), the
Lenders party thereto, Citibank, N.A., as administrative agent (the "Agent") for
said Lenders, Bank of America, N.A., as syndication agent, UBS Loan Finance LLC,
as documentation agent, and Citigroup Global Markets Inc. and Banc America
Securities LLC, as joint lead arrangers and joint book managers. Terms defined
in the Credit Agreement are used herein as therein defined.
I am the Senior Vice President, General Counsel and Secretary
of the Company, and I have acted as counsel for the Company in connection with
the preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined:
(1) the Credit Agreement and the Revolving Credit Notes of
the Company;
(2) the documents furnished by the Company pursuant to
Article III of the Credit Agreement;
(3) the Amended and Restated Certificate of Incorporation of
the Company and all amendments thereto (the "Charter"); and
(4) The by-laws of the Company and all amendments thereto
(the "By-laws").
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments and
other documents, as I have deemed necessary as a basis for the opinions
expressed below. In making such examinations, I have assumed the
2
genuineness of all signatures (other than those on behalf of the Company),
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me as
certified, conformed or photographic copies. As to questions of fact material to
such opinions, I have, when relevant facts were not independently established by
me, relied upon certificates of the Company or its officers or of public
officials and as to questions of fact and law, on opinions or statements by
other lawyers reporting to me. I have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the Initial Lenders
and the Agent.
My opinions expressed below are limited to the law of the
Commonwealth of Pennsylvania, and, where applicable, the General Corporation Law
of the State of Delaware and the Federal law of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes, and the consummation of the
transactions contemplated thereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Charter or the By-laws or (ii) any law,
rule or regulation applicable to the Company (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (iii) any contractual or legal restriction binding
on or affecting the Company or, to the best of my knowledge, contained
in any other similar document, except where such contravention would
not be reasonably likely to have a Material Adverse Effect. The Credit
Agreement and the Revolving Credit Notes of the Company have been duly
executed and delivered on behalf of the Company.
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Company of the Credit Agreement and the Notes,
or for the consummation of the transactions contemplated thereby,
except for the authorizations, approvals, actions, notices and filings
(i) listed on Schedule 4.01(c) to the Credit Agreement, all of which
have been duly obtained, taken, given or made and are in full force and
effect and (ii) where the Company's failure to receive, take or make
such authorization, approval, action, notice or filing would not have a
Material Adverse Effect.
4. There (i) are no pending or, to the best of my knowledge,
threatened actions, investigations, litigations or proceedings against
the Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (a) would be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (b)
purport to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or any of the Notes or the
consummation of the transactions contemplated
3
thereby, and (ii) there has been no adverse change in the status, or
financial effect on the Company and its Subsidiaries taken as a whole,
of the Disclosed Litigation from that described on Schedule 3.01(b)
thereto.
This opinion letter may be relied upon by you only in
connection with the transaction being consummated pursuant to the Credit
Agreement and may not be used or relied upon by any other person for any other
purpose.
Very truly yours,
EXHIBIT H - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
[Date]
To each of the Lenders party
to the Credit Agreement
referred to below,
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to ___________________ ("Designated
Subsidiary"), I have reviewed that certain Five Year Credit Agreement, dated as
of November 12, 2004 (the "Credit Agreement"), among Hershey Foods Corporation
(the "Company"), the Lenders party thereto, Citibank, N.A., as administrative
agent (the "Agent") for said Lenders, Bank of America, N.A., as syndication
agent, UBS Loan Finance LLC, as documentation agent, and Citigroup Global
Markets Inc. and Banc America Securities LLC, as joint lead arrangers and joint
book managers. Terms defined in the Credit Agreement are used herein as therein
defined. In connection therewith, I have also examined the following documents:
(i) The Designation Letter (as defined in the Credit
Agreement) executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the
original, certified, conformed or photographic copies of such other documents,
records, agreements and certificates as I have considered relevant hereto. As to
questions of fact material to such opinions, we have, when relevant facts were
not independently established by us, relied upon certificates of the Designated
Subsidiary or of its officers or of public officials and as to questions of fact
and law, on opinions or statements by other lawyers reporting to me. I have
assumed (i) the due execution and delivery, pursuant to due authorization, of
each of the documents referred to above by all parties thereto other than the
Designated Subsidiary, (ii) the authenticity of all such documents submitted to
us as originals and (iii) the conformity to originals of all such documents
submitted to me as certified, conformed or photographic copies.
My opinions expressed below are limited to ________________
and the State of New York.
Based upon the foregoing, and upon such investigation as I
have deemed necessary, I am of the following opinion:
2
1. The Designated Subsidiary (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of
_________________________, (b) is duly qualified in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed and
(c) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its
Revolving Credit Notes, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) any provision of the charter or by-laws or
other constituent documents of the Designated Subsidiary, (ii) any law,
rule or regulation applicable to the Designated Subsidiary or (iii) any
contractual or legal obligation or restriction binding on or affecting
the Designated Subsidiary, except where such contravention would not be
reasonably likely to have a Material Adverse Effect. The Designation
Letter and each Revolving Credit Note of the Designated Subsidiary has
been duly executed and delivered on behalf of the Designated
Subsidiary.
3. The Designation Letter of the Designated Subsidiary, the
Credit Agreement and the Revolving Credit Notes of the Designated
Subsidiary are, and each other Note of the Designated Subsidiary when
executed and delivered under the Credit Agreement will be, legal, valid
and binding obligations of the Designated Subsidiary enforceable in
accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
moratorium or other similar laws relating to the enforcement of
creditors' rights generally or by the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and except that I express no opinion
as to (i) the subject matter jurisdiction of the District Courts of the
United States of America to adjudicate any controversy relating to the
Credit Agreement, the Designation Letter of the Designated Subsidiary
or the Notes of the Designated Subsidiary or (ii) the effect of the law
of any jurisdiction (other than the State of New York) wherein any
Lender or Applicable Lending Office may be located or wherein
enforcement of the Credit Agreement, the Designation Letter of the
Designated Subsidiary or the Notes of the Designated Subsidiary may be
sought which limits rates of interest which may be charged or collected
by such Lender.
4. There is no pending, or to the best of my knowledge,
threatened action, investigation, litigation or proceeding at law or in
equity against the Designated Subsidiary before any court, governmental
agency or arbitrator that would be reasonably likely to have a Material
Adverse Effect or that purports to affect the legality, validity,
binding effect or enforceability of the Designation Letter of the
Designated Subsidiary, the Credit Agreement or any Revolving Credit
Note of the Designated Subsidiary, or the consummation of the
transactions contemplated thereby.
3
5. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Designated Subsidiary of its Designation Letter,
the Credit Agreement or the Notes of the Designated Subsidiary except
for such authorizations, consents, approvals, actions, notices or
filings as have heretofore been made, obtained or affected and are in
full force and effect.
This opinion letter may be relied upon by you only in
connection with the transaction being consummated pursuant to the Credit
Agreement and may not be used or relied upon by any other person for any other
purpose.
Very truly yours,