EXECUTION COPY
LONG-TERM REVOLVING CREDIT AGREEMENT
dated as of December 16, 2005
among
CONAGRA FOODS, INC.,
The Banks That Have Signed This Agreement,
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
BANK OF AMERICA, N.A., as Syndication Agent, and
CITIBANK, N.A., BNP PARIBAS and
MERRILL LYNCH BANK USA, as Co-Documentation Agents
J.P. MORGAN SECURITIES INC., and BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
1. DEFINITIONS..............................................................1
2. TERMS....................................................................9
2.1. Syndicated Loans.................................................9
2.1.1. Commitment to Make Syndicated Loans......................9
2.1.2. Revolving Credit...................... ..................9
2.1.3. Payments.................................................9
2.2. Syndicated Loan Borrowings.......................................9
2.2.1. Company Notice.. .......................................9
2.2.2. Funding.................................................9
2.3. Bank Records of Loans and Payments..............................10
2.4. Fees, Removal of Banks and Changes of Commitments...............10
2.4.1. Facility Fee...........................................10
2.4.2. Banks..................................................10
2.4.3. Commitments............................................10
2.4.4. Consents...............................................10
2.4.5. Notice.................................................11
2.5. Determination of Applicable Margin and Applicable
Facility Fee Rate...............................................11
2.6. Interest Rates and Selection of Eurodollar Rates................12
2.7. Restrictions on Syndicated Loans, Interest Periods
and Conversion..................................................12
2.8. Interest Basis and Payment Dates................................12
2.9. Payments........................................................13
2.9.1. Payment to Administrative Agent........................13
2.9.2. Application of Payments................................13
2.9.3. Payment to Banks.......................................13
2.9.4. Extension for Business Day.............................13
2.10. Applicable Lending Installations................................13
2.11. Failure to Pay or Borrow on Certain Dates.......................14
2.12. Taxes...........................................................14
2.12.1. Certification..........................................14
2.12.2. Change of Law..........................................14
2.12.3. Withholding............................................15
2.12.4. Indemnity..............................................15
2.12.5. Notice to Company......................................15
2.12.6. Notice of Withholding..................................15
2.12.7. Timely Payment.........................................16
2.12.8. Mitigation.............................................16
2.13. Increased Costs.................................................16
2.13.1. Change of Law..........................................16
2.13.2. Notice.................................................17
2.14. Availability of Interest Rate...................................17
2.15. Bank Certificates; Survival of Indemnity........................18
2.16. Telephonic Notices..............................................18
2.17. Mitigation of Additional Costs or Adverse Circumstances.........18
2.18. Extension of Termination Date...................................18
2.19. Pro Rata Treatment..............................................19
2.19.1. Borrowings, Fees, Etc..................................19
2.19.2. Payment of Principal and Interest......................19
2.20. Non-Receipt of Funds by the Administrative Agent................20
2.21. Illegality......................................................20
2.22. Bid Option......................................................20
2.22.1. Bid Option; Repayment and Effect of Bid Absolute
Rate Loans.............................................20
2.22.2. Bid Quote Request......................................20
2.22.3. Invitation for Bid Quotes..............................21
2.22.4. Submission and Contents of Bid Quotes..................21
2.22.5. Notice to the Company..................................23
2.22.6. Acceptance and Notice by the Company...................23
2.22.7. Allocation by the Administrative Agent.................23
2.23. Increase of Commitments.........................................24
3. PREPAYMENT..............................................................24
3.1. Generally.......................................................24
4. REPRESENTATIONS AND WARRANTIES..........................................25
4.1. Corporate Existence and Standing................................25
4.2. Authorization and Validity......................................25
4.3. Compliance with Laws and Contracts..............................25
4.4. Financial Statements............................................25
4.4.1. Audited................................................25
4.4.2. No Material Adverse Change.............................25
4.5. Taxes...........................................................26
4.6. Litigation......................................................26
4.7. Pension Reform Act of 1974......................................26
4.8. Defaults........................................................26
4.9. Accuracy of Information.........................................26
4.10. Regulation U....................................................26
4.11. Legal Authority.................................................26
5. AFFIRMATIVE COVENANTS...................................................26
5.1. Financial Statements, Reports, Returns and Other
Financial Data..................................................26
5.1.1. Quarterly Financial Statements.........................27
5.1.2. Annual Financial Statements............................27
5.1.3. Stockholder and Governmental Reports...................27
5.2. Officer's Certificate...........................................27
5.3. Sale and Lease-Back.............................................27
6. NEGATIVE COVENANTS......................................................28
6.1. Funded Debt.....................................................28
6.2. Consolidation, Merger, Sale or Conveyance.......................28
6.3. Fixed Charge Coverage...........................................29
6.4. Liens...........................................................29
7. EVENTS OF DEFAULT AND REMEDIES..........................................29
7.1. Events of Default...............................................29
7.1.1. Failure to Pay Principal of Notes......................29
7.1.2. Failure to Pay Interest on Notes or Fees...............29
7.1.3. Default Under Other Obligations........................29
7.1.4. Breach of Representation...............................29
7.1.5. Failure to Perform Negative Covenants..................29
7.1.6. Failure to Perform Other Terms and Conditions..........30
7.1.7. Assignment For Benefit of Creditors and Insolvency.....30
7.1.8. Order for Relief.......................................30
7.1.9. Voluntary Receiver or Bankruptcy.......................30
7.1.10. Involuntary Receiver or Bankruptcy.....................30
7.1.11. Involuntary Order for Relief...........................30
7.1.12. Unsatisfied Judgment...................................30
7.2. Rights and Duties After Default.................................30
7.2.1. Acceleration...........................................30
7.2.2. Interest Rate After Acceleration.......................31
8. WAIVERS, AMENDMENTS AND REMEDIES........................................31
8.1. Waivers and Remedies............................................31
8.2. Amendments......................................................31
9. CONDITIONS PRECEDENT TO CLOSING.........................................32
10. GENERAL PROVISIONS......................................................33
10.1. Benefit of Agreement............................................33
10.1.1. Assignments............................................33
10.1.2. [Intentionally Omitted]................................33
10.1.3. Effect of Assignments..................................33
10.1.4. Participations.........................................34
10.1.5. General Restrictions...................................34
10.1.6. Federal Reserve Bank...................................35
10.2. Survival of Representations.....................................35
10.3. Governmental Regulation.........................................35
10.4. Taxes...........................................................35
10.5. Choice of Law...................................................35
10.6. Headings........................................................35
10.7. Entire Agreement................................................35
10.8. Several Obligations.............................................35
10.9. Expenses........................................................35
10.10. Numbers of Documents............................................36
10.11. Severability....................................................36
10.12. Accounting......................................................36
10.13. Confidentiality.................................................36
10.14. USA PATRIOT Act.................................................36
11. THE AGENTS..............................................................36
11.1. Appointment and Powers..........................................36
11.2. Powers..........................................................37
11.3. General Immunity................................................37
11.4. No Responsibility for Loans, Recitals, Etc......................37
11.5. Right to Indemnity..............................................37
11.6. Action on Instructions of Banks.................................37
11.7. Employment of Agents and Counsel................................37
11.8. Reliance on Documents; Counsel..................................37
11.9. May Treat Payee as Owner........................................38
11.10. Administrative Agent's Reimbursement............................38
11.11. Rights as a Bank................................................38
11.12. Bank Credit Decision............................................38
11.13. Resignation or Removal of Administrative Agent..................38
11.14. Syndication Agent and Co-Documentation Agents...................39
12. SETOFF..................................................................39
13. NOTICES.................................................................39
13.1. Giving Notice..................................................39
14. COUNTERPARTS............................................................39
EXHIBITS AND SCHEDULES
SCHEDULE 1 - Banks, Commitments and Notice Information
EXHIBIT A - Form of Note
EXHIBIT B - Sample Confirmation Letter
EXHIBIT C - Form of Section 2.12 Certificate
EXHIBIT D - Form of Opinion of Counsel for the Company
EXHIBIT E - Form of Bid Note
EXHIBIT F - Form of Bid Quote
EXHIBIT G - Form of Bid Quote Request
EXHIBIT H - Form of Invitation for Bid Quotes
EXHIBIT I - Form of Request for Extension
EXHIBIT J - Form of Acceptance of Request for Extension
EXHIBIT K - Form of Consent to Additional or Increasing Bank
EXHIBIT L - Form of Assignment and Assumption
CONAGRA FOODS, INC.
LONG-TERM REVOLVING CREDIT AGREEMENT
Dated as of December 16, 2005
This Long-Term Revolving Credit Agreement (as the same may be
amended, supplemented or otherwise modified from time to time hereafter, the
"Agreement") is entered into by and among ConAgra Foods, Inc., a Delaware
corporation (the "Company"), the banks that have signed this Agreement (the
"Banks"), JPMorgan Chase Bank, N.A. ("JPMCB"), as administrative agent for such
banks (the "Administrative Agent"), Bank of America, N.A. ("BofA"), as
syndication agent (the "Syndication Agent"), Citibank, N.A., BNP Paribas and
Merrill Lynch Bank USA as Co-Documentation Agents and J.P. Morgan Securities
Inc. ("JPMorgan") and Banc of America Securities LLC ("BAS"), as joint lead
arrangers and joint bookrunners (the "Arrangers").
WHEREAS, the Company wishes to obtain certain long-term financing from
the Banks, the Administrative Agent and the Syndication Agent;
WHEREAS, the Banks, the Administrative Agent and the Syndication Agent
are willing to extend long-term financing to the Company on the terms and
conditions set forth herein;
NOW THEREFORE, the Company, the Banks, the Administrative Agent and the
Syndication Agent agree as follows:
1. DEFINITIONS.
As used in this Agreement,
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Banks pursuant to Section 11, and not
in its individual capacity as a Bank, together with its successors and permitted
assigns.
"Affiliate" means any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, the
Company. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
"Agreement" means this Long-Term Revolving Credit Agreement,
as it may be amended or modified from time to time.
"Alternate Base Rate" means, from time to time, the greater of
(i) the Prime Rate and (ii) the Federal Funds Rate in effect from time to time
plus 1/2% per annum.
"Alternate Base Rate Loan" means that portion of any Loan at
the time the Alternate Base Rate is applicable thereto.
"Applicable Facility Fee Rate" has the meaning given thereto
in Section 2.5 hereof.
"Applicable Lending Installation" means any office or branch
of any Bank or the Administrative Agent.
"Applicable Margin" has the meaning given thereto in Section
2.5 hereof.
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an
entity or an Affiliate of an entity that administers or manages a Bank.
"Arrangers" means J.P. Morgan Securities Inc. and Banc of
America Securities LLC in their capacities as joint lead arrangers and joint
bookrunners.
"Authorized Officer" means any of the Chief Executive Officer,
the Chief Financial Officer, the Controller, the Treasurer, any Assistant
Treasurer or any employee of the Company designated in writing to the Banks by
any of the foregoing.
"Banks" means the banks listed on Schedule 1 hereto and any
Person that becomes a Bank pursuant to this Agreement and their respective
successors and permitted assigns.
"Base Eurodollar Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the Dow
Jones Market Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "Base
Eurodollar Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Bid Absolute Rate" means, with respect to a Bid Absolute Rate
Loan made by a relevant Bank for the relevant Bid Interest Period, the rate of
interest per annum (rounded to the nearest 1/100th of 1%) offered by such Bank
and accepted by the Company pursuant to Section 2.22.6.
"Bid Absolute Rate Loan" means that portion of any Loan at the
time the Bid Absolute Rate is applicable thereto.
"Bid Interest Period" means, with respect to a Bid Absolute
Rate Loan, a period of not less than 30 and not more than 270 days commencing on
a Business Day selected by the Company in the relevant Bid Quote Request
pursuant to Section 2.22.2. If such Bid Interest Period would end on a day which
is not a Business Day, such Bid Interest Period shall end on the next succeeding
Business Day.
"Bid Note" means a promissory note in substantially the form
of Exhibit E hereto, with appropriate insertions, duly executed and delivered to
the Administrative Agent by the Company and payable to the order of a Bank,
including any amendment, modification, renewal or replacement of such promissory
note.
"Bid Quote" means a Bid Quote substantially in the form of
Exhibit F hereto completed and delivered by a Bank to the Administrative Agent
pursuant to Section 2.22.4.
"Bid Quote Request" means a Bid Quote Request substantially in
the form of Exhibit G hereto completed and delivered by the Company to the
Administrative Agent pursuant to Section 2.22.2.
"Bid Rate Auction" means a solicitation of Bid Quotes pursuant
to Section 2.22.
"Board" means the Board of Governors of the Federal Reserve
Systems of the United States.
"Borrowing" means Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Notice" means a written, telex, telecopy or
telephonic notice by the Company to the Administrative Agent specifying (i) the
Effective Date of making a Syndicated Loan, (ii) the amounts of, and Rate
Options applicable to, the Syndicated Loans requested and (iii) the duration of
the Eurodollar Interest Period applicable to each Eurodollar Loan requested.
"Business Day" means (i) with respect to borrowing, payment or
rate selection of Eurodollar Loans, a day on which banks are open for business
in Chicago, New York and Omaha and on which dealings in U.S. Dollars are carried
on in the London interbank market and (ii) with respect to borrowing, payment or
rate selection of Alternate Base Rate Loans and Bid Absolute Rate Loans or with
respect to a reduction of the Commitments, a day on which banks are open for
business in Chicago, New York and Omaha.
"Co-Documentation Agents" means Citibank, N.A., BNP Paribas
and Merrill Lynch Bank USA in their capacity as Co-Documentation Agents for the
Banks pursuant to this Agreement.
"Commitments" means the aggregate of the amounts set forth
opposite each Bank's name on Schedule 1 hereto, as such amounts are reduced or
increased from time to time pursuant to Section 2.4, 2.12.2, 2.17, 2.21, 2.23 or
7.2, and "Commitment" means any one amount set forth opposite each Bank's name
on Schedule 1 as so reduced or increased.
"Company" means ConAgra Foods, Inc., a Delaware corporation,
together with its successors and permitted assigns.
"Consolidated Capital Base" means the sum of (i) Consolidated
Funded Debt, (ii) consolidated deferred taxes of the Company and its
Subsidiaries, plus (iii) consolidated stockholders' equity of the Company and
its Subsidiaries, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles; provided, however, that in determining
consolidated stockholders' equity, any contra account of up to $350,000,000
established for purposes of an employee stock ownership plan or the Company's
Employee Equity Fund (EEF) shall be disregarded and shall not be considered a
reduction of stockholders' equity.
"Consolidated Funded Debt" means the sum of (i) any obligation
for borrowed money, which under Generally Accepted Accounting Principles is
shown on the consolidated balance sheet of the Company and its Subsidiaries as a
non-current liability plus (ii) an amount equal to 60% of the principal amount
payable by the Company or any Subsidiary pursuant to any guaranty by the Company
or any Subsidiary of "Third Party Debt" upon the happening of every contingency
to the enforcement of such guaranty. For purposes hereof, "Third Party Debt"
shall mean debt of any Person (other than the Company or any Subsidiary) for
borrowed money that (i) pursuant to Generally Accepted Accounting Principles, is
classified as a non-current liability, and (ii) the repayment of which is
guaranteed by the Company or any Subsidiary.
"Effective Date" means any Business Day designated by the
Company in a Borrowing Notice, Bid Quote Request, Rate Selection Notice or
Prepayment Notice as the date such borrowing, rate selection or prepayment, as
the case may be, shall become effective.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Interest Period" means, with respect to a
Eurodollar Loan, a period of 1, 2, 3 or 6 months commencing on a Business Day
and selected by the Company in its Borrowing Notice or Rate Selection Notice. If
any Eurodollar Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the next succeeding
Business Day, provided, however, that if said next succeeding Business Day falls
in a new month such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" means that portion of any Syndicated Loan at
the time the Eurodollar Rate is applicable thereto.
"Eurodollar Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the sum of (i) (a) the Base
Eurodollar Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate plus (ii) the Applicable Margin.
"Event of Default" shall mean any of the events specified in
Section 7, provided that there has been satisfied any requirement in connection
with such event for the giving of notice, or the lapse of time, or the happening
of any further condition, event or act.
"Extraordinary Item" means extraordinary items and cumulative
effect of changes in accounting principles that are non-cash as those items are
accounted for pursuant to Generally Accepted Accounting Principles, and in
addition, any other non-recurring and/or non-operating charges or credits up to
a maximum amount from May 27, 1996 to the Termination Date of 20% of Company's
consolidated stockholders' equity as of the quarter ended immediately preceding
the last to occur of such charge or credit.
"Facility Fee" has the meaning set forth in Section 2.4.1
herein.
"Federal Funds Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fitch" means Fitch Ratings Ltd., together with its successors
and assigns.
"Fixed Charges" means, for any period, on a consolidated basis
for the Company and its Subsidiaries, net interest expense plus non-cancelable
lease rental payments payable during such period.
"Fixed Rate" means a rate per annum equal to either the Bid
Absolute Rate or the Eurodollar Rate.
"Fixed Rate Loan" means a Eurodollar Loan or a Bid Absolute
Rate Loan.
"Generally Accepted Accounting Principles" means generally
accepted accounting principles in effect from time to time.
"Indenture" means that certain Indenture dated as of October
8, 1990 between the Company and JPMorgan Chase Bank, N.A. (f/k/a The Chase
Manhattan Bank), as trustee, as in effect on the date hereof.
"Interest Period" means a Bid Interest Period or a Eurodollar
Interest Period.
"Invitation for Bid Quotes" means an Invitation for Bid Quotes
substantially in the form of Exhibit H hereto completed and delivered by the
Administrative Agent to the Banks in accordance with Section 2.22.3.
"JPMCB" means JPMorgan Chase Bank, N.A., in its individual
capacity, together with its successors and permitted
assigns.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing), conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction.
"Loan" means any loan made under this Agreement.
"Loan Closing Date" means a Revolving Credit Loan Closing Date
or a date a Bid Absolute Rate Loan is made.
"Loan Documents" means the Agreement and the Notes.
"Material Subsidiary" means a Subsidiary that has total
assets, determined in accordance with Generally Accepted Accounting Principles,
in excess of 20% of the Company's total consolidated assets, determined in
accordance with Generally Accepted Accounting Principles.
"Minimum Notice Period" means a period commencing no later
than 10:00 a.m. Chicago time (i) on the Effective Date of an Alternate Base Rate
borrowing or rate selection and (ii) three Business Days prior to the Effective
Date of a Eurodollar Rate borrowing, payment or rate selection.
"Moody's" means Moody's Investors Service, Inc., together with
its successors and assigns.
"Non-U.S. Bank" means a Bank that is not incorporated under
the laws of the United States of America or a state thereof.
"Notes" means collectively the Syndicated Notes and the Bid
Notes and "Note" means any one of such Notes.
"Obligations" means all unpaid principal and interest under
the Notes, facility fees and all other obligations of the Company or any
Subsidiary to the Banks or to any Bank or to the Administrative Agent or the
Syndication Agent arising under the Loan Documents.
"Officer's Certificate" shall mean a certificate signed in the
name of the Company by any Authorized Officer.
"Person" shall mean and include an individual, a partnership,
a joint venture, a corporation, a trust, an estate, an unincorporated
organization and a government, domestic or foreign, or any department or agency
or political subdivision thereof.
"Potential Default" means an event which but for the lapse of
time, the giving of notice or the happening of any further condition, event or
act would constitute an Event of Default.
"Prepayment Notice" means a written, telex, telecopy or
telephonic notice by the Company to the Administrative Agent pursuant to Section
3 specifying the amount of principal to be prepaid and the Effective Date of
such prepayment.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Prior Agreement" means that certain Long-Term Revolving
Credit Agreement dated as of May 22, 2002 by and among the Company, certain
financial institutions from time to time parties thereto as Banks and JPMorgan
Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)) as
Administrative Agent.
"Profit Before Taxes and Extraordinary Items" means on a
consolidated basis for any fiscal period of the Company, earnings of the Company
and its Subsidiaries (exclusive of Extraordinary Items) before provision for
taxes in respect of, or measured by, income or excess profits for such period.
"Pro Rata" means, for any Bank, (i) prior to the applicable
Termination Date, that percentage which is equal to the proportion that such
Bank's Commitment bears to the sum of all the then outstanding Commitments of
all of the Banks and (ii) after the applicable Termination Date, that percentage
which is equal to the proportion that the principal amount of such Bank's
outstanding Loans bears to the principal amount of the sum of all the then
outstanding Loans of all of the Banks.
"Rate Option" means the Eurodollar Rate or the Alternate Base
Rate.
"Rate Selection Notice" means a written, telex or telephonic
notice by the Company to the Administrative Agent specifying (i) the principal
amount of the outstanding Syndicated Loans that shall be governed by each
Eurodollar Rate, if any, (ii) the Eurodollar Interest Period applicable to each
such Eurodollar Loan and (iii) the Effective Date of each such Eurodollar Rate
selection.
"Regulation D" means Regulation D of the Board (as modified)
and shall include any successor or other regulation or official interpretation
of said Board of Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board (as modified)
and shall include any successor or other regulation or official interpretation
of said Board relating to the extension of credit by banks for the purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System.
"Required Banks" means, (i) prior to the Termination Date,
Banks in the aggregate having outstanding Commitments greater than 50% of the
sum of the Commitments and (ii) on and after the Termination Date, Banks having
in the aggregate greater than 50% of the outstanding Loans.
"Revolving Credit Loan Closing Date" means any Business Day on
which the Administrative Agent has actually received within the applicable
Minimum Notice Period prior notice from the Company for a Syndicated Loan,
specifying such date and requesting the amount to be borrowed thereon and on
which the applicable conditions set forth in Section 9 hereof are satisfied.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc., together with its successors and assigns.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Bank under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means any corporation whose accounts are
consolidated with the accounts of the Company in accordance with the Generally
Accepted Accounting Principles for purposes of preparing the financial
statements referred to in Section 5.1.
"Syndicated Loan" means a Loan made pursuant to Section 2.1.1
hereof.
"Syndicated Note" means a promissory note in substantially the
form of Exhibit A hereto, dated the date hereof, duly executed and delivered to
the Administrative Agent by the Company and payable to the order of a Bank in
the amount of its Commitment.
"Syndication Agent" means Bank of America, N.A., in its
capacity as syndication agent for the Banks pursuant to this Agreement.
"Termination Date" means, with respect to a Bank, the earlier
of December 16, 2010 or the date, if any, on which such Bank's Commitment is
reduced to zero or terminated pursuant to this Agreement.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Eurodollar Rate or the
Alternate Base Rate.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
2. TERMS.
2.1. Syndicated Loans.
2.1.1. Commitment to Make Syndicated Loans. Each Bank severally agrees
to make, at the option of the Company, Syndicated Loans to the Company from
time to time from the date hereof to the Termination Date on the Effective
Dates specified in Borrowing Notices received by the Administrative Agent
not less than the Minimum Notice Period prior to such Effective Date;
provided, however, the Banks shall not be obligated to make any Syndicated
Loan under this Section 2.1.1 to the extent that the sum of the outstanding
principal amount of all Syndicated Loans and all Bid Absolute Rate Loans
would exceed the amount of the then applicable Commitments of all the Banks
and provided further, no Bank shall be obligated to make any Syndicated
Loan to the extent that immediately after the making of any such Syndicated
Loan such Bank's Pro Rata share of the outstanding Syndicated Loans under
this Section 2.1.1 would exceed such Bank's Commitment. Each such
Syndicated Loan shall be evidenced by a Note payable to the order of such
Bank in the form of Exhibit A and/or E, as applicable. Syndicated Loans
will be made available subject to the conditions set forth in Section 9.2.
2.1.2. Revolving Credit. Subject to the terms of this Agreement, the
Company may borrow, repay and reborrow Loans prior to the Termination Date.
Each Bank's Commitment shall expire on its Termination Date.
2.1.3. Payments. Any Loans outstanding on a Bank's Termination Date
shall be paid in full on such date unless prepaid prior to such date in
accordance with the terms of this Agreement.
2.2. Syndicated Loan Borrowings.
2.2.1. Company Notice. The Company shall give the Administrative Agent
(which shall promptly notify the Banks) notice (within the applicable
Minimum Notice Period) of each borrowing hereunder, stating the aggregate
amount of the Syndicated Loans requested under Section 2.1, the Effective
Date of the Syndicated Loans, the Interest Period applicable thereto, and
specifying whether such borrowing shall consist of Alternate Base Rate
Loans or Eurodollar Loans and the respective aggregate amounts of the
Syndicated Loans of each type.
2.2.2. Funding. Not later than noon Chicago time on the Effective Date
for each borrowing under Section 2.1, each Bank shall make available to the
Administrative Agent the Pro Rata amount of the Syndicated Loan to be made
by it on such date, to an account maintained by the Administrative Agent
with JPMCB, in immediately available funds, for the account of the Company.
The amount so received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company by
depositing the same, in immediately available funds, in an account of the
Company maintained with JPMCB, or such other account, in either case as
specified in writing by an Authorized Officer (or in such other manner as
may be specified by the Company and is reasonably acceptable to the
Administrative Agent).
2.3. Bank Records of Loans and Payments. Each Bank is hereby authorized to
record the principal amount of each Syndicated Loan made under Section 2.1 and
each repayment of any such Syndicated Loan on the schedule attached to its
Syndicated Note; however, failure to do so shall not affect the Company's
obligations thereunder.
2.4. Fees, Removal of Banks and Changes of Commitments.
2.4.1. Facility Fee. The Company agrees to pay to the Administrative
Agent for the account of each Bank a facility fee (the "Facility Fee")
equal to the Applicable Facility Fee Rate on such Bank's average daily
Commitment (without regard to usage) from the date hereof to and including
the Termination Date, payable in arrears on the first day of each March,
June, September, and December to occur during the term of this Agreement
and on the Termination Date, with the first such payment to occur on March
1, 2006.
2.4.2. Banks. Subject to the provisions of Section 2.4.4 and in
accordance with Section 2.23, so long as no Potential Default or Event of
Default shall have occurred and be continuing or would result therefrom,
the Company may, from time to time with the consent of the Administrative
Agent, add additional banks as parties to this Agreement. Unless the
Company otherwise reduces the Commitments in accordance with the terms
hereof or removes a Bank pursuant to the terms hereof, the addition of any
new bank shall increase the aggregate Commitments; provided, however, that
the aggregate Commitments shall at no time exceed $2,000,000,000. Any such
new bank shall execute a consent in substantially the form attached hereto
as Exhibit K, which executed consent shall be provided by the Company to
the Administrative Agent. In addition, the Company may, from time to time,
remove any Bank from Schedule 1 by written notice to each Bank and the
Administrative Agent, so long as the Company has satisfied all Obligations
to such removed Bank as of the effective date of such removal. Upon such
removal, the removed Bank shall no longer be deemed to be a party to the
Agreement and shall cease to have any rights or obligations pursuant hereto
except it shall continue to be entitled to the indemnities set forth in
Sections 2.12.4 and 2.15.
2.4.3. Commitments. The Company may permanently reduce the aggregate
Commitments in whole or in part in multiples of $25,000,000, without
penalty, upon at least three Business Days written notice to the
Administrative Agent, which shall specify the amount of any such reduction,
provided, however, that the Commitments may not be reduced below the then
outstanding principal amount of the Syndicated Loans owing to the Banks. In
addition, subject to the provisions of Section 2.4.4, and so long as the
aggregate Commitments do not at any time exceed $2,000,000,000, the Company
may, from time to time, increase any Bank's Commitment so long as such Bank
consents in writing to such increased Commitment.
2.4.4. Consents. Prior to adding any bank to Schedule 1 pursuant to
Section 2.4.2 or increasing any Bank's Commitment pursuant to Section
2.4.3, the Company shall give written notice to each other Bank specifying
the action to be taken and the effective date of such action. Each Bank
shall have ten (10) Business Days from receipt of such notice to provide to
the Company written notice that such Bank does not consent to such action.
Within ten (10) Business Days of receipt of any such notice, the Company
shall either (i) rescind such action and notify the Banks that such action
will not be taken, or (ii) satisfy all Obligations to any Bank that gave
such notice and cause such Banks to be removed from Schedule 1.
2.4.5. Notice. Within ten (10) Business Days following the effective
date of the addition or removal of any Bank or the increase or decrease of
any Commitment, the Administrative Agent shall notify each Bank of such
change.
2.5. Determination of Applicable Margin and Applicable Facility Fee Rate.
The Administrative Agent, using the per annum rates set forth below, shall from
time to time determine the applicable margin used (in part) to calculate the
Eurodollar Rate (the "Applicable Margin") and the rate used to calculate the
Facility Fee (the "Applicable Facility Fee Rate"). If, at any time during the
term of this Agreement, the daily aggregate principal amount of Loans
outstanding hereunder (i) exceeds 50% of the aggregate Commitments hereunder,
the Administrative Agent shall refer to the column titled "Applicable Eurodollar
Margin (utilization > 50%)" in the chart below to determine the Applicable
Margin, or (ii) is equal to or less than 50% of the aggregate Commitments
hereunder, the Administrative Agent shall refer to the column titled "Applicable
Eurodollar Margin (utilization = 50%)" in the chart below to determine the
Applicable Margin. The following per annum rates correspond with ratings of the
Company's unsecured senior long-term indebtedness (without giving effect to any
third-party credit enhancement) by S&P and Moody's.
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Levels Applicable Eurodollar Applicable Eurodollar Applicable Facility Fee
Margin (utilization Margin (utilization > 50%) Rate
< or = to 50%)
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level I 0.19% 0.29% 0.060%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level II 0.23% 0.33% 0.070%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level III 0.27% 0.37% 0.080%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level IV 0.40% 0.50% 0.10%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level V 0.525% 0.625% 0.125%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
Pricing Level VI 0.70% 0.80% 0.20%
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
For purposes of this Section 2.5, with respect to the rating of the Company's
unsecured senior long-term indebtedness (without giving effect to any
third-party credit enhancement) on any date of determination, (i) "Pricing Level
I" means a rating of A or higher by either S&P or Fitch or a rating of A2 or
higher by Moody's, (ii) "Pricing Level II" means a rating of A- or higher by
either S&P or Fitch or a rating of A3 or higher by Moody's, and that the Company
does not qualify for Pricing Level I, (iii) "Pricing Level III" means a rating
of BBB+ or higher by either S&P or Fitch or a rating of Baa1 or higher by
Moody's, and that the Company does not qualify for either Pricing Level I or
Pricing Level II, (iv) "Pricing Level IV" means a rating of BBB or higher by
either S&P or Fitch or a rating of Baa2 or higher by Moody's, and that the
Company does not qualify for Pricing Level I, Pricing Level II, or Pricing Level
III, (v) "Pricing Level V" means a rating of BBB- or higher by either S&P or
Fitch or a rating of Baa3 or higher by Moody's, and that the Company does not
qualify for Pricing Level I, Pricing Level II, Pricing Level III, or Pricing
Level IV, and (vi) "Pricing Level VI" means a rating of lower than BBB- by
either S&P or Fitch and a rating lower than Baa3 by Moody's. If the Company's
unsecured senior long-term indebtedness (without giving effect to any
third-party credit enhancement) is split-rated by S&P, Fitch and Moody's, as
applicable, and the ratings differential is one level, the better rating will
apply. For example, if the S&P rating on any date of determination is A and the
Moody's rating on such date is A3, a rating of A/A2 will apply and Pricing Level
I will be in effect on such date. If the Company's unsecured senior long-term
indebtedness (without giving effect to any third-party credit enhancement) is
split-rated by S&P, Fitch and Moody's, as applicable, and the ratings
differential is two levels or more, then the operative rating shall be one level
below the higher of the two ratings. For example, if the S&P rating on any date
of determination is A and the Moody's rating on such date is Baa2, a rating of
A-/A3 will apply and Pricing Level II will be in effect. In the event all of the
S&P, Moody's and Fitch ratings differ, then the Pricing Level shall be
determined using the highest of such ratings and the lowest of such ratings. For
example, if the S&P rating on any date of determination is A-, the Fitch rating
on such date is BBB+, and the Moody's rating on such date is Baa2, the S&P and
Moody's ratings shall be used, and a rating of BBB+/Baa1 will apply and Pricing
Level III will be in effect. The credit rating in effect on any date for
purposes of this Section 2.5 is that rating in effect at the close of business
on such date. If at any time the Company has no credit rating from either S&P or
Moody's, Pricing Level VI shall then be in effect.
2.6. Interest Rates and Selection of Eurodollar Rates. Except as provided
in this Section 2.6, the Syndicated Notes shall bear interest at the Alternate
Base Rate. Subject to the terms and conditions of this Agreement, the Company
may elect from time to time to pay interest at a Eurodollar Rate and for a
Eurodollar Interest Period selected hereunder for all or any portion of the
Syndicated Loans, by giving the Administrative Agent the appropriate Borrowing
Notice (in the case of a new Syndicated Loan) or a Rate Selection Notice (in the
case of an existing Syndicated Loan) in not less than the Minimum Notice Period
applicable thereto. The unpaid principal amount of each Eurodollar Loan shall
bear interest from and including the first day of the Eurodollar Interest Period
applicable thereto to (but not including) the last day of such Eurodollar
Interest Period at the Eurodollar Rate applicable to such Loan, and during such
Eurodollar Interest Period the Rate Option applicable to such Eurodollar Loan
shall not be changed by the Company or any Bank. If, at the end of an Interest
Period for an outstanding Eurodollar Loan, the Company fails to select a new
Rate Option by giving a Rate Selection Notice or to pay the Eurodollar Loan
after giving a Prepayment Notice in not less than the Minimum Notice Period
provided therefor, then such Loan shall be an Alternate Base Rate Loan on and
after the last day of such Eurodollar Interest Period until paid or until the
Effective Date of a new Rate Option. The Company may not select a Eurodollar
Rate to apply to any portion of the Syndicated Loans if, on the Effective Date
of such selection, there exists an Event of Default or Potential Default.
2.7. Restrictions on Syndicated Loans, Interest Periods and Conversion.
Each new Syndicated Loan and each conversion of a Syndicated Loan to a new Rate
Option shall be in an amount of $25,000,000 or an integral multiple of
$5,000,000 in excess thereof. Eurodollar Loans at any one time outstanding may
not be divided into more than 10 Interest Periods without the prior consent of
the Administrative Agent. No Eurodollar Interest Period for any Loan made by a
Bank shall extend beyond such Bank's Termination Date.
2.8. Interest Basis and Payment Dates. Interest on Alternate Base Rate
Loans shall be calculated for actual days elapsed on the basis of a 365 or 366
day year and interest on Eurodollar Loans, Bid Absolute Rate Loans and fees
shall be computed on the basis of a year of 360 days and actual days elapsed.
The interest rate on Alternate Base Rate Loans shall change when and as the
Alternate Base Rate changes. Interest accrued on Alternate Base Rate Loans shall
be payable quarterly in arrears on the 1st day of each March, June, September
and December to occur after the date hereof, and upon any prepayment or at
maturity, whether by acceleration on the Termination Date or otherwise. Interest
accrued on Fixed Rate Loans shall be payable on the last day of the applicable
Interest Period and, in the case of an Interest Period longer than three months
(or longer than 90 days in the case of a Bid Absolute Rate Loan), interest shall
also be payable every three months (or every 90 days in the case of a Bid
Absolute Rate Loan) during the Interest Period, upon any prepayment (whether due
to acceleration or otherwise) and on the Termination Date. If any Loan is not
paid when due, whether at its scheduled maturity or upon acceleration, interest
shall thereafter be payable on demand at the rate set forth in Section 7.2.2.
Interest shall be payable for the day a Loan is made but not for the day of any
payment on the amount paid if payment is received by the Administrative Agent
prior to noon Chicago time.
2.9. Payments.
2.9.1. Payment to Administrative Agent. Except to the extent otherwise
provided herein, all payments of principal, interest and other amounts to
be made by the Company under this Agreement and the Notes shall be made in
U.S. Dollars, in immediately available funds, to the Administrative Agent
to an account maintained by the Administrative Agent with JPMCB or as
otherwise directed by the Administrative Agent, not later than noon Chicago
time on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the
next succeeding Business Day).
2.9.2. Application of Payments. Without prejudice to the other
provisions of this Agreement, the Company shall, at the time of making each
payment under this Agreement or any Note, specify to the Administrative
Agent the Loans or other amounts payable by the Company hereunder to which
such payment is to be applied (and in the event that it fails to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Banks in such
manner as it or the Required Banks may determine to be appropriate, subject
to Section 2.19 hereof).
2.9.3. Payment to Banks. Each payment received by the Administrative
Agent under this Agreement or any Note for account of a Bank shall be paid
promptly to such Bank, in immediately available funds, for account of such
Bank's Applicable Lending Installation for the Loan in respect of which
such payment is made.
2.9.4. Extension for Business Day. If the due date of any payment
under this Agreement or any Note would otherwise fall on a day which is not
a Business Day such date shall (unless otherwise expressly provided herein)
be extended to the immediately succeeding Business Day and interest shall
be payable for any principal so extended for the period of such extension.
2.10. Applicable Lending Installations. Each Bank may book the Fixed Rate
Loans at any Applicable Lending Installation selected by the Bank and may change
the Applicable Lending Installation from time to time, provided that a Bank may
not change its Applicable Lending Installation to a new Applicable Lending
Installation if, at the time of such change, the Company would incur additional
costs pursuant to Section 2.13. All terms of this Agreement shall apply to any
such Applicable Lending Installation and the Notes shall be deemed held by each
Bank for the benefit of such Applicable Lending Installation. Each Bank may, by
written or telex notice to the Company and the Administrative Agent, designate
an Applicable Lending Installation through which Fixed Rate Loans are made and
for whose account Fixed Rate Loan payments are to be made.
2.11. Failure to Pay or Borrow on Certain Dates. If (i) any payment or
interest rate conversion of a Fixed Rate Loan occurs on a date which is not the
last day of an Interest Period, or (ii) a Fixed Rate Loan is not made on the
date specified in a Borrowing Notice, Bid Quote Request or Rate Selection Notice
for any reason other than default by the Banks, the Company will indemnify each
Bank for any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed Rate Loan, but excluding loss of anticipated profit
for the period after such payment or conversion.
2.12. Taxes.
2.12.1. Certification. Each Bank and the Administrative Agent shall
submit to the Company upon the execution of this Agreement, two duly
completed and signed copies of either Form W-8BEN (relating to such Person
and entitling it to a complete exemption from withholding on all amounts of
interest and original issue discount to be received by such Person pursuant
to this Agreement) or Form W-8ECI (relating to all amounts of interest and
original issue discount to be received by such Person pursuant to this
Agreement) of the United States Internal Revenue Service; or of a
certificate substantially in the form of Exhibit C hereto. Thereafter and
from time to time, each Bank and the Administrative Agent shall, subject to
Section 2.12.2 and 2.12.3, submit to the Company such additional duly
completed and signed copies of one or the other of such forms (or such
successor, additional or replacement forms as shall be adopted from time to
time by the relevant United States taxing authorities) or of such a
certificate or form as the Company may request from such Person which may
be required by United States Federal, State or local tax authorities or
under then current applicable law or regulations in connection with United
States Federal, State or local withholding taxes on, or backup withholding
in respect of, payments to be received by such Person under the Notes and
this Agreement.
2.12.2. Change of Law. If any Bank or the Administrative Agent
determines, as a result of any change in applicable law, regulation or
treaty, or in any official publication or interpretation thereof, that it
is unable (after taking any reasonable steps available to it) to submit to
the Company any form or forms or other certification that such party would
otherwise have been obliged to submit pursuant to Section 2.12.1, or that
such party is required to withdraw or cancel any such form or forms or
other certification previously submitted, then such party shall promptly
notify the Company of such fact, whereupon the Company shall,
notwithstanding any provision herein to the contrary, be entitled to
terminate such Bank's Commitment. The Company will pay all principal,
interest, fees and costs due under Section 2.11 due to such Bank in
connection with any prepayment hereunder.
2.12.3. Withholding. If the Company or any paying agent is required by
law or regulation to make any deduction, withholding or backup withholding
on account of any taxes hereafter imposed, levied, collected, withheld or
assessed by the United States, the United Kingdom or any other taxing
authority (or any subdivision or taxing authority thereof or therein)
("Relevant Taxes") from any payment to any Bank or the Administrative Agent
under this Agreement, then the amount payable in respect of such payment
will be increased to the amount which, after deduction from such increased
amount of all Relevant Taxes required to be withheld or deducted therefrom,
will yield the amount required under this Agreement to be payable with
respect thereto had no such deduction, withholding or backup withholding
been required; provided, however, that the Company shall not be required to
pay any additional amount on account of any taxes of, or imposed by, the
United States of America pursuant to this Section 2.12.3 to any Bank or the
Administrative Agent, and shall not be required to indemnify such Person
pursuant to Section 2.12.4, if such Person:
(a) is not entitled, on the date this Agreement is signed, to submit
Form W-8BEN or Form W-8ECI or a certificate substantially in the
form of the Exhibit C hereto so as to meet its obligations to
submit such a form or other certificate pursuant to Section
2.12.1;
(b) shall have submitted an improper form or certificate;
(c) shall have failed to submit any form or other certificate which
it was required to submit pursuant to Section 2.12.1 and required
or entitled to file under applicable law (to the extent such
taxes would not have been imposed if a proper form or certificate
had been submitted); or
(d) shall have failed to provide in a timely manner any notification
required by Section 2.12.2.
2.12.4. Indemnity. Without prejudice to the provisions of Section
2.12.3 or the provisions of the Notes, if any Bank or the Administrative
Agent on its behalf is required by law to make any payment on account of a
tax (not being a tax imposed on net income, profits, capital or gains) that
is not in effect or applicable on the date hereof on or in relation to any
sum received or receivable hereunder by such Bank or the Administrative
Agent on its behalf, of any tax liability in respect of any such payment,
which payment is hereafter imposed, levied or assessed against such Bank or
the Administrative Agent on its behalf, the Company will, upon demand of
the Administrative Agent or such Bank, promptly indemnify such Bank against
such payment or liability, together with any interest, penalties and
expenses payable or incurred in connection therewith or for any delay in
payment thereof.
2.12.5. Notice to Company. A Bank intending to make a claim pursuant
to Section 2.12.4 shall notify the Administrative Agent of the event by
reason of which it is entitled to do so promptly after becoming aware of
the circumstances giving rise to the claim, whereupon the Administrative
Agent shall notify the Company thereof.
2.12.6. Notice of Withholding. If at any time the Company is required
by law or regulation to make any deduction, withholding or backup
withholding on account of any taxes hereafter imposed, levied, collected,
withheld or assessed by the United States, the United Kingdom or other
taxing authority (or any subdivision or taxing authority thereof or
therein) from any sum payable by it hereunder (or if thereafter there is
any change in the rates at which or the manner in which such deductions or
withholdings are calculated) the Company shall promptly notify the
Administrative Agent.
2.12.7. Timely Payment. If the Company makes any payment hereunder in
respect of which it is required by law or regulation to make any deduction,
withholding or backup withholding on account of any taxes hereafter
imposed, levied, collected, withheld or assessed by the United States, the
United Kingdom or other taxing authority (or any subdivision or taxing
authority thereof or therein) it shall pay the full amount to be deducted
or withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall deliver to the
Administrative Agent within thirty days after it has made such payment to
the applicable authority a receipt issued by such authority or other
evidence reasonably satisfactory to the Administrative Agent evidencing the
payment to such authority of all amounts so required to be deducted or
withheld from such payment.
2.12.8. Mitigation. If any Bank or the Administrative Agent, as the
case may be, is, in its reasonable opinion, able to apply for or otherwise
take advantage of any tax credit, tax deduction or other reduction (which
reduction is permanent in nature) in tax or similar benefit by reason of
any withholding or deduction made by the Company in respect of a payment
made by it hereunder which payment shall have been increased pursuant to
Section 2.12.3, then such Person will use reasonable efforts to obtain such
credit, deduction or benefit and upon receipt thereof will pay to the
Company such amount (if any) not exceeding the increased amount paid by the
Company as equals the net after-tax value to such Person of such part of
such credit, deduction or benefit as it considers is allocable to such
withholding or deduction having regard to all its dealings giving rise to
similar credits, deductions or benefits in relation to the same tax period
and to the cost of obtaining the same; provided that nothing herein
contained shall interfere with the right of any such Person to arrange its
tax affairs in whatever manner it deems fit and in particular no such
Person shall be under any obligation to claim relief from its corporate
profits or similar tax liability in respect of any such deduction or
withholding in priority to any other reliefs, claims, credits or deductions
available to it.
2.13. Increased Costs.
2.13.1. Change of Law. If, by reason of any change after the date
hereof in law or in the interpretation or administration thereof or
compliance by any Bank with any request or directive (whether or not having
the force of law) by any central bank or other fiscal, monetary or other
authority (including those regarding capital adequacy):
(a) a Bank incurs an increased cost as a result of its having entered
into and/or performed its obligations under this Agreement,
and/or its maintaining its Commitment hereunder and/or making one
or more Loans hereunder;
(b) there is any increase in the cost to a Bank of funding or
maintaining all or any of the Loans comprised in a class of loans
formed by or including the Loans made or to be made by it
hereunder;
(c) a Bank becomes liable to make any payment (not being a tax
imposed on the net income, profits, capital or gains of its
Applicable Lending Installation by the jurisdiction in which it
is incorporated or in which its Applicable Lending Installation
is located) on or calculated by reference to the amount of Loans
made or to be made by it hereunder; or
(d) the amount of capital required or expected to be maintained by
any Bank or any Person controlling any Bank is increased because
of the existence of this Agreement, and Loans outstanding
hereunder or its obligation to make Loans,
then such Bank shall comply with its obligations under Section
2.17 with a view to mitigating the Company's obligations under
this Section and the Company shall, within 15 days of receipt
from such Bank of the certificate described in Section 2.13.2,
pay to such Bank such amounts sufficient to indemnify such Bank
against, respectively:
(w) such cost;
(x) the lesser of (i) such increased cost and (ii) such
proportion of such increased cost as is in the good faith
opinion of that Bank attributable to its funding or
maintaining Loans hereunder;
(y) such liability; or
(z) any reduction in rate of return as a consequence of such
increase in capital requirements.
2.13.2. Notice. A Bank intending to make a claim pursuant to Section
2.13.1 shall deliver to the Company and the Administrative Agent, promptly
after becoming aware of the circumstances giving rise to the claim, a
certificate to that effect specifying the event by reason of which it is
entitled to make such claim and setting out in reasonable detail the basis
and computation of such claim.
2.14. Availability of Interest Rate. If any Bank determines that (i)
maintenance of the Eurodollar Loans at an Applicable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, (ii) deposits of a type and maturity appropriate to
match fund a Eurodollar Loan are not available or (iii) that a Eurodollar Rate
does not accurately reflect the cost of making or maintaining a Eurodollar Loan,
then such Bank may suspend the availability of the affected Rate Option provided
that such suspension shall not affect any Loans outstanding under an affected
Rate Option and provided that, notwithstanding the foregoing, each Bank shall
make Alternate Base Rate Loans available to the Company in lieu of Eurodollar
Loans whose availability has been suspended.
2.15. Bank Certificates; Survival of Indemnity. To the extent reasonably
possible, each Bank shall designate an alternate Applicable Lending Installation
with respect to its Eurodollar Loans to reduce any liability of the Company to
such Bank under Section 2.12 or Section 2.13 or to avoid the unavailability of a
Rate Option under Section 2.14, so long as such designation is not
disadvantageous to such Bank. A certificate of a Bank as to the amount due under
Sections 2.11, 2.12 or 2.13 and the basis for the determination of such amount
shall be final, conclusive and binding on the Company in the absence of manifest
error. Determination of amounts payable under such Sections in connection with a
Fixed Rate Loan shall be calculated as though each Bank funded the Fixed Rate
Loan through the purchase of a deposit of the type, maturity and amount
corresponding to the deposit used as a reference in determining the Fixed Rate
applicable to the Loan. Unless otherwise provided herein, the amount specified
in the certificate shall be payable within 15 days after receipt by the Company
of the certificate. The obligations under Sections 2.11, 2.12 and 2.13 shall
survive payment of the Loans and termination of this Agreement.
2.16. Telephonic Notices. The Company hereby authorizes the Banks and the
Administrative Agent to extend Loans and effect rate selection choices based on
telephonic Borrowing and Rate Selection Notices made by any Person or Persons to
the Administrative Agent and which the Administrative Agent in good faith
believes to be acting on behalf of the Company. The Company agrees to promptly
confirm to the Administrative Agent any telephonic Borrowing Notice or Rate
Selection Notice in writing signed by an Authorized Officer substantially in the
form of Exhibit B hereto. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent, the records of the
Administrative Agent shall govern absent manifest error.
2.17. Mitigation of Additional Costs or Adverse Circumstances. If, in
respect of any Bank, circumstances arise which would or would upon the giving of
notice result in (i) an increase in the amount of any payment to be made to it
or for its account pursuant to Section 2.12, or (ii) a claim for indemnification
pursuant to Section 2.13, then such Bank shall, promptly upon becoming aware of
the same, notify the Administrative Agent and the Company thereof and, in
consultation with the Administrative Agent and the Company, and, to the extent
that it can do so without prejudice to its own position, take such reasonable
steps as may be reasonably open to it to mitigate the effects of such
circumstances (including, without limitation, the transfer of its Applicable
Lending Installation to another jurisdiction or the transfer of its rights and
obligations hereunder to another financial institution acceptable to the Company
(in its sole and absolute discretion) and willing to participate in the
Agreement or the restructure of its participation in the Agreement in a manner
which will avoid the event in question and on terms mutually acceptable to such
Bank and the Company). If and so long as a Bank has been unable to take, or has
not taken, steps acceptable to the Company to mitigate the effect of the
circumstances in question, such Bank shall be obligated, at the request of the
Company, to transfer all its rights and obligations hereunder, subject to
payment of all principal, interest, fees, funding losses under Section 2.11 and
any other amounts due such Bank hereunder, to another financial institution
nominated by the Company and willing to participate in the Agreement in place of
such Bank.
2.18. Extension of Termination Date. The Company may request an extension
(subject to each Bank's right to deny any such requested extension) of the
Termination Date in effect at any time by submitting a request for an extension
in the form of Exhibit I to the Administrative Agent (an "Extension Request")
not more than 90 days and not less than 45 days prior to each anniversary of
this Agreement. The request shall specify (i) the new Termination Date, which
shall be one year after the Termination Date then in effect, and (ii) the date
(which must be at least 45 days after the Extension Request is delivered to the
Administrative Agent) as of which the next Termination Date shall be effective
(the "Extension Date"). The failure of the Company to request an extension on
any applicable anniversary date shall not prevent the Company from requesting an
extension on a future anniversary date under this Section 2.18. Promptly upon
receipt of an Extension Request, the Administrative Agent shall notify each Bank
of the contents thereof and shall request each Bank to approve the Extension
Request. Each Bank approving the Extension Request shall deliver its written
Extension Acceptance in the form of Exhibit J ("Acceptance of Extension") no
later than 15 days after receipt of notice from the Administrative Agent. An
extension hereunder shall only be effective if an Acceptance of Extension is
received by the Administrative Agent from the Required Banks within the time
period set forth above. Failure of a Bank to respond to an Extension Request
shall be deemed a denial of such request. If any Bank does not accept such
extension, then either (i) on the Termination Date then in effect with respect
to such Bank (without giving effect to the Extension Request rejected by such
Bank), (a) the Company shall pay to such Bank all amounts then payable to such
Bank under this Agreement and the Note on its applicable Termination Date and
(b) such Bank's Commitment shall terminate on the Termination Date applicable to
such Bank or (ii) the Company may, with the consent of the Administrative Agent
(such consent not to be unreasonably withheld), remove such Bank pursuant to the
terms of Section 2.4. No extension pursuant to this Section 2.18 shall be
effective as to any Bank unless, on the applicable Extension Date (a) no Event
of Default or Potential Default shall exist and (b) each of the representations
and warranties of the Company contained in Section 4 shall be true and correct
in all material respects as of such Extension Date (unless such representation
and warranty specifically relates back to an earlier date, in which case such
representation and warranty shall have been true and correct in all material
respects as of such earlier date).
2.19. Pro Rata Treatment. Except to the extent otherwise expressly provided
in this Agreement:
2.19.1. Borrowings, Fees, Etc. Each Syndicated Loan hereunder shall be
made from the Banks, each payment of fees shall be made for account of the
Banks, and each termination or reduction of the amount of the Commitments
shall, except as set forth in Sections 2.4.2, 2.4.4, 2.12, 2.17, and 2.21,
be applied to such Commitments of the Banks, Pro Rata according to the
amounts of their unused Commitments. The making, conversion and
continuation of Loans (other than Bid Absolute Rate Loans) of any type
shall be Pro Rata among the Banks according to the amounts of their
Commitments.
2.19.2. Payment of Principal and Interest. Except as provided in
Sections 2.4.2, 2.4.4, 2.12, 2.13, 2.14, 2.17, 2.21, 2.22, and the second
sentence of 7.2.1, each payment and prepayment by the Company of principal
of or interest on the Loans shall be made to the Administrative Agent for
account of the Banks holding Loans of such type Pro Rata in accordance with
the respective unpaid principal amounts thereof.
2.20. Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Bank or the Company prior to
the date on which it is scheduled to make payment to the Administrative Agent of
(in the case of a Bank) the proceeds of a Loan to be made by it hereunder or (in
the case of the Company) a payment to the Administrative Agent for account of
one or more of the Banks hereunder (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt by the
Administrative Agent, that it does not intend to make the Required Payment to
the Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date and, if such Bank or the Company (as the case may be) has not in
fact made the Required Payment to the Administrative Agent by the close of
business on the date due, the recipient(s) of such payment shall, on demand,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on and
including the date such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate less .50% per annum for each such day.
2.21. Illegality. If at any time it is unlawful for a Bank to fund or allow
to remain outstanding all or any of the Loans made or to be made by it
hereunder, then such Bank shall, promptly after becoming aware of the same,
deliver to the Company and the Administrative Agent a certificate to that
effect. Thereafter such Bank shall not be obligated to make Loans hereunder and
the amount of its Commitment shall be reduced to zero and all Loans made by such
Bank shall be immediately repaid in full together with interest accrued thereon
and all other amounts payable hereunder with respect thereto including funding
losses under Section 2.11.
2.22. Bid Option.
2.22.1. Bid Option; Repayment and Effect of Bid Absolute Rate Loans.
(a) In addition to Syndicated Loans pursuant to Section 2.1, but subject to
the terms and conditions set forth in this Agreement (including, without
limitation, the limitation set forth in Section 2.1 as to the maximum
aggregate principal amount of all outstanding Loans hereunder), the Company
may, as set forth in this Section 2.22.1, request the Banks, prior to the
Termination Date, to make offers to make Bid Absolute Rate Loans to the
Company. Each Bank may, but shall have no obligation to, make such offers
and the Company may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.22. Bid Absolute Rate
Loans shall be evidenced by the Bid Notes. Each Bid Absolute Rate Loan
shall be repaid in full by the Company on the last day of the Bid Interest
Period applicable thereto.
(b) Any Bank may offer to make Bid Absolute Rate Loans in excess of
its Commitment but such Loans will not relieve the Bank of its obligation
to fund its Pro Rata share of Syndicated Loans.
2.22.2. Bid Quote Request. When the Company wishes to request offers
to make Bid Absolute Rate Loans under Section 2.22, the Company shall
transmit to the Administrative Agent by telex or telecopy a Bid Quote
Request so as to be received no later than 9:00 a.m., Chicago time, at
least one Business Day prior to the borrowing date proposed therein,
specifying:
(i) the proposed borrowing date for the proposed Bid Absolute
Rate Loans;
(ii) the aggregate principal amount of such Bid Absolute Rate
Loans; and
(iii) the Bid Interest Period applicable thereto (which must end
on or prior to the Termination Date of any Bank).
The Company may request offers to make Bid Absolute Rate Loans for more
than one Bid Interest Period. No Bid Quote Request shall be given
within five Business Days (or upon reasonable prior notice to the
Banks, such other number of days as the Company and the Administrative
Agent may agree) of any other Bid Quote Request. Each Bid Quote Request
shall be in a minimum amount of $5,000,000 or a larger multiple of
$1,000,000; provided that upon giving effect to such Bid Absolute Rate
Loans, the then aggregate outstanding principal amount of all Loans
shall not exceed the aggregate amount of the Commitments then in
effect. A Bid Quote Request that does not conform substantially to the
format of Exhibit G hereto shall be rejected, and the Administrative
Agent shall promptly notify the Company of such rejection by telex or
telecopy.
2.22.3. Invitation for Bid Quotes. Promptly upon receipt of a Bid
Quote Request that is not rejected pursuant to Section 2.22.2, the
Administrative Agent shall send to each of the Banks by telex or telecopy
an Invitation for Bid Quotes which shall constitute an invitation by the
Company to each Bank to submit Bid Quotes offering to make the Bid Absolute
Rate Loans to which such Bid Quote Request relates in accordance with
Section 2.22.
2.22.4. Submission and Contents of Bid Quotes.
(i) Each Bank may, in its sole discretion, submit a Bid Quote
containing an offer or offers to make Bid Absolute Rate
Loans in response to any Invitation for Bid Quotes. Each Bid
Quote must comply with the requirements of this Section
2.22.4 and must be submitted to the Administrative Agent by
telex or telecopy at its offices specified in or pursuant to
Article 13 not later than 8:45 a.m., Chicago time, in the
case of JPMCB and 9:00 a.m., Chicago time, in the case of
each other Bank, on the proposed Borrowing Date (or, in any
such case upon reasonable prior notice to the Banks, such
other time and date as the Company and the Administrative
Agent may agree, provided that JPMCB shall always be
required to submit its Bid Quotes not less than fifteen
minutes prior to the other Banks). No Bank may submit a Bid
Quote for a Bid Absolute Rate Loan which has a Bid Interest
Period later than such Bank's Termination Date. Subject to
Articles 7 and 9, any Bid Quote so made shall be irrevocable
except with the written consent of the Administrative Agent
given on the instructions of the Company.
(ii) Each Bid Quote shall in any case specify:
(a) the proposed borrowing date, which shall be the same as
that set forth in the applicable Invitation for Bid
Quotes;
(b) the principal amount of the Bid Absolute Rate Loan for
which each such offer is being made, (1) which
principal amount may be greater than, less than or
equal to the Commitment of the quoting Bank, but in no
case greater than the Commitments, (2) which principal
amount must be at least $5,000,000 and an integral
multiple of $1,000,000 in excess thereof, and (3) which
principal amount may not exceed the principal amount of
Bid Absolute Rate Loans for which offers were
requested;
(c) the minimum or maximum amount, if any, of the Bid
Absolute Rate Loan which may be accepted by the Company
and/or the limit, if any, as to the aggregate principal
amount of the Bid Absolute Rate Loans from such Bank
which may be accepted by the Company;
(d) the Bid Absolute Rate offered for each such Bid
Absolute Rate Loan;
(e) the applicable Bid Interest Period; and
(f) the identity of the quoting Bank.
(iii) The Administrative Agent shall reject any Bid Quote that:
(a) is not substantially in the form of Exhibit F hereto or
does not specify all of the information required by
Section 2.22.4(ii);
(b) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit F
hereto;
(c) proposes terms other than or in addition to those set
forth in the applicable Invitation for Bid Quotes; or
(d) arrives after the time set forth in Section 2.22.4(i).
If any Bid Quote shall be rejected pursuant to this Section
2.22.4(iii), then the Administrative Agent shall notify the relevant
Bank of such rejection as soon as practicable.
2.22.5. Notice to the Company. The Administrative Agent shall promptly
notify the Company of the terms (i) of any Bid Quote submitted by a Bank
that is in accordance with Section 2.22.4 and (ii) of any Bid Quote that is
in accordance with Section 2.22.4 and amends, modifies or is otherwise
inconsistent with a previous Bid Quote submitted by such Bank with respect
to the same Bid Quote Request. Any such subsequent Bid Quote shall be
disregarded by the Administrative Agent unless such subsequent Bid Quote
specifically states that it is submitted solely to correct a manifest error
in such former Bid Quote. The Administrative Agent's notice to the Company
shall specify the aggregate principal amount of Bid Absolute Rate Loans for
which offers have been received for each Bid Interest Period specified in
the related Bid Quote Request and the respective principal amounts and Bid
Absolute Rates so offered.
2.22.6. Acceptance and Notice by the Company. Subject to the receipt
of the notice from the Administrative Agent referred to in Section 2.22.5,
not later than 10:00 a.m. (Chicago time) on the proposed date of borrowing,
the Company shall notify the Administrative Agent of the Company's
acceptance or rejection of the offers so notified to it pursuant to Section
2.22.5; provided, however, that the failure by the Company to give such
notice to the Administrative Agent shall be deemed to be a rejection of all
such offers. In the case of acceptance, such notice (a "Competitive Bid
Borrowing Notice") shall specify the aggregate principal amount of offers
for each Bid Interest Period that are accepted. The Company may accept or
reject any Bid Quote in whole or in part (subject to the terms of Section
2.22.4(ii)(c)); provided that:
(a) the aggregate principal amount of all Bid Absolute Rate
Loans may not exceed the applicable amount set forth in
the related Bid Quote Request;
(b) acceptance of offers may only be made on the basis of
ascending Bid Absolute Rates; and
(c) the Company may not accept any offer of the type
described in Section 2.22.4(iii) or that otherwise
fails to comply with the requirements of this Agreement
for the purpose of obtaining a Bid Absolute Rate Loan
under this Agreement.
2.22.7. Allocation by the Administrative Agent. If offers are made by
two or more Banks with the same Bid Absolute Rates for a greater aggregate
principal amount than the amount in respect of which offers are permitted
to be accepted for the related Bid Interest Period, the principal amount of
Bid Absolute Rate Loans in respect of which such offers are accepted shall
be allocated by the Administrative Agent among such Banks as nearly as
possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers; provided, however, that no Bank shall be
allocated a portion of any Bid Absolute Rate Loan which is less than the
minimum amount which such Bank has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Bid Absolute Rate
Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event by 11:00 a.m.
(Chicago time), notify each Bank of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such Bid Absolute
Rate Loan allocated to each participating Bank.
2.23. Increase of Commitments.
(a) In addition to increases in the Commitment pursuant to
Section 2.4, the Company may from time to time, on the terms set forth below,
request that the Commitments hereunder be increased to an amount which does not
exceed $2,000,000,000; provided, however, that an increase in the Commitments
hereunder may only be made at a time when (i) no Potential Default or Event of
Default shall have occurred and be continuing or would result therefrom and (ii)
the Company's senior long-term indebtedness (without giving effect to any
third-party credit enhancement) is rated at least BBB- by S&P, Baa3 by Moody's
or BBB- by Fitch.
(b) In the event of such a requested increase in the
Commitments, (i) each of the Banks shall be given the opportunity to participate
in the increased Commitments (x) initially ratably in the proportion that its
Commitment bears to the Commitments and (y) to the extent that the requested
increase of Commitments is not fulfilled pursuant to the preceding clause (x)
and subject to clause (d) below, in such additional amounts as a Bank desires,
and (ii) to the extent that the Banks do not elect so to participate in such
increased Commitments after being afforded an opportunity to do so, then the
Company shall consult with the Administrative Agent as to the number, identity
and requested Commitments of additional financial institutions which the Company
may, upon the written consent of the Administrative Agent, which consent shall
not be unreasonably withheld, invite to participate in the Commitments.
(c) No Bank shall have any obligation to increase its
Commitment pursuant to a request by the Company hereunder. No Bank shall be
deemed to have approved an increase in its Commitment unless such approval is in
writing. Failure on the part of a Bank to respond to a request by the Company
hereunder shall be deemed a rejection of such request.
(d) In no event shall any Bank's Commitment, after giving
effect to an increase in its Commitment hereunder, exceed 20% of the Commitments
under this Agreement.
(e) In the event that the Company and one or more of the Banks
(or other financial institutions) shall agree upon such an increase in the
Commitments hereunder (i) the Company, the Administrative Agent and each Bank or
other financial institution increasing its Commitment or extending a new
Commitment shall enter into a consent in substantially the form of Exhibit K
hereto and (ii) the Company shall furnish new Notes to each financial
institution that is extending a new Commitment and to each Bank which is
increasing its Commitment.
3. PREPAYMENT.
3.1. Generally. Upon receipt by the Administrative Agent of a Prepayment
Notice not less than the Minimum Notice Period prior to the Effective Date
thereof, the Company may from time to time pay, without penalty, all, or, in a
minimum aggregate amount of $25,000,000, any part of the principal of, the Loans
prior to their stated maturities by paying, in addition to the principal amount
of such payment, all interest accrued on the payment to the date thereof. Except
as provided in Section 2.11 and Section 7.2, Fixed Rate Loans may be paid only
on the last day of the applicable Interest Period.
4. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Banks that:
4.1. Corporate Existence and Standing. Each of the Company and the Material
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which the
failure to obtain the necessary authority might materially adversely affect the
consolidated condition or operations of the Company or the ability of the
Company to perform the Obligations.
4.2. Authorization and Validity. The execution, delivery and performance by
the Company of the Loan Documents have been duly authorized by proper corporate
proceedings and the Loan Documents, when executed and delivered, will constitute
valid, binding and enforceable obligations of the Company.
4.3. Compliance with Laws and Contracts. Neither the execution and delivery
by the Company of the Loan Documents, the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Company or any Material Subsidiary or articles or certificates of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which the Company or any Material Subsidiary is a party or is
subject, or by which it or its property, is bound, or result in the creation or
imposition of any Lien pursuant to the terms of any such indenture, instrument
or agreement, and, after giving effect to the execution and delivery of this
Agreement and each of the Loan Documents, there will not exist any default (or
event which, with notice or lapse of time, would be a default) under any such
indenture, instrument or agreement.
4.4. Financial Statements.
4.4.1. Audited. The May 29, 2005 consolidated financial statements of
the Company heretofore delivered to each Bank were prepared in accordance
with Generally Accepted Accounting Principles in effect on the date such
statements were prepared and fairly present the consolidated financial
position of the Company and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
4.4.2. No Material Adverse Change. No material adverse change in the
consolidated financial position or results of operations of the Company and
its Subsidiaries as shown on said May 29, 2005 financial statements has
occurred since the date thereof through and including the date of this
Agreement.
4.5. Taxes. The Company and the Material Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any Material Subsidiary, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books of
the Company and the Material Subsidiaries in respect of any taxes or other
governmental charges are adequate.
4.6. Litigation. As of the date of this Agreement, there is no litigation
or proceeding pending or, to the knowledge of any of their officers, threatened
against the Company or any Material Subsidiary which might materially adversely
affect the consolidated financial position or results of operations of the
Company and its Subsidiaries or the ability of the Company to perform the
Obligations.
4.7. Pension Reform Act of 1974. Neither the Company nor any Material
Subsidiary has incurred any material accumulated funding deficiency within the
meaning of the Employee Retirement Income Security Act of 1974, as amended, or
has incurred any material liability (which has become due but which has not been
paid) to the Pension Benefit Guaranty Corporation established under such Act (or
any successor thereto under such Act) in connection with any employee benefit
plan established or maintained by the Company or any Material Subsidiary.
4.8. Defaults. No Event of Default or Potential Default has occurred and is
continuing.
4.9. Accuracy of Information. As of the date of this Agreement, no
information, exhibit or report furnished by the Company or any Material
Subsidiary to the Administrative Agent or to the Banks in connection with the
negotiation of the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made.
4.10. Regulation U. Neither the Company nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying "margin stock" (as defined in
Regulation U of the Board). The Company shall not use the proceeds of any Loan
in a manner that would result in any violation of the provisions of Regulation
U.
4.11. Legal Authority. No approval, authorization, consent, adjudication or
order of any governmental authority, which has not been obtained by the Company
or any Subsidiary, is required to be obtained by the Company or any Subsidiary
in connection with the execution and delivery of the Loan Documents, the
borrowing under the Agreement or in connection with the performance by the
Company of its obligations under the Loan Documents.
5. AFFIRMATIVE COVENANTS.
5.1. Financial Statements, Reports, Returns and Other Financial Data. The
Company covenants that, so long as any Bank shall hold any Note or have any
Commitment or Loan outstanding, the Company will deliver to each of such Banks
that holds any Note or has any Commitment or Loan outstanding the following:
5.1.1. Quarterly Financial Statements. As soon as practicable and in
any event within 60 days after the end of each of the first three quarterly
accounting periods of the Company's fiscal year, (i) quarterly consolidated
statements of earnings and cash flow of the Company and its Subsidiaries,
and (ii) quarterly consolidated balance sheets of the Company and its
Subsidiaries, setting forth in each case in comparative form consolidated
figures for the corresponding period in the preceding fiscal year, all in
accordance with Generally Accepted Accounting Principles (except that
footnote disclosures required by Generally Accepted Accounting Principles
may be omitted and that the statement of stockholders' equity will be
omitted and subject to audit and changes resulting from year-end
adjustment) all in the form submitted by the Company to its shareholders.
5.1.2. Annual Financial Statements. As soon as practicable and in any
event within 90 days after the end of the Company's fiscal year (i) annual
consolidated statements of earnings, stockholders' equity and cash flow of
the Company and its Subsidiaries for such year, and (ii) annual
consolidated balance sheets of the Company and its Subsidiaries, setting
forth in each case in comparative form corresponding consolidated figures
from the preceding annual audit, all in accordance with Generally Accepted
Accounting Principles and certified by independent certified public
accountants of recognized national standing selected by the Company and all
in a form submitted by the Company to its shareholders.
5.1.3. Stockholder and Governmental Reports. Promptly upon
transmission thereof, copies of all such financial statements, proxy
statements, notices and reports as it shall send to its stockholders and of
all registration statements (without exhibits) and all reports which it
files with the Securities and Exchange Commission or any governmental body
or agency succeeding to the functions of the Securities and Exchange
Commission.
5.2. Officer's Certificate. Together with each delivery of financial
statements required by Section 5.1.1 and 5.1.2 above, the Company will deliver
to the Administrative Agent for distribution to each of the Banks an Officer's
Certificate setting forth the calculations necessary to determine compliance
with this Agreement and stating that there exists no Event of Default or
Potential Default or, if any such Event of Default or Potential Default exists,
specifying the nature thereof, the period of existence thereof and what action
the Company has taken or proposes to take with respect thereto. The Company also
covenants that forthwith upon any Authorized Officer obtaining knowledge of an
Event of Default or Potential Default under this Agreement, it will deliver to
any Bank that holds any Note or has any Commitment outstanding an Officer's
Certificate specifying the nature thereof, the period of existence thereof, and
what action the Company has taken or proposes to take with respect thereto.
Where the financial statements required by Section 5.1.1 or 5.1.2 above are
necessary to determine whether all covenants herein have been complied with, or
whether an Event of Default has occurred, the most recent financial statements
referred to in Section 5.1.1. and 5.1.2 above, shall be used to make such
determination.
5.3. Sale and Lease-Back. In the event a "Sale and Lease-Back Transaction"
(as defined in Section 3.7 of the Indenture) occurs that (i) results in net
proceeds to the Company or a Subsidiary in excess of $50,000,000, and (ii)
requires the retirement by the Company of debt pursuant to Section 3.7(c) of the
Indenture, then the Company shall, within 90 days following the effective date
of such Sale and Lease-Back Transaction, offer to holders of the Notes to use
the net proceeds of such Sale and Lease-Back Transaction to prepay, without
premium, a Pro Rata portion of the principal amount of the Notes held by each
such holder. Such Pro Rata amount shall be based on a fraction, the numerator of
which would be the principal amount of Notes then outstanding and the
denominator of which would be the principal amount outstanding of all funded
debt for which the Company is required by the terms thereof, to make similar
offers. Such offer would be terminated if not accepted in writing within 5
Business Days following the date of such offer. For purposes of this Section,
the applicable provisions of the Indenture shall be deemed incorporated herein
mutatis mutandis without the effect of any amendment, waiver or termination of
the Indenture.
6. NEGATIVE COVENANTS.
The Company covenants, so long as any Bank shall hold any Note or have any
Commitment or Loan outstanding, as follows:
6.1. Funded Debt. The Company will not permit Consolidated Funded Debt to
exceed 65% of Consolidated Capital Base.
6.2. Consolidation, Merger, Sale or Conveyance. The Company will not merge
or consolidate with any other corporation or sell or convey (including by way of
lease) all or substantially all of its assets to any Person, unless (i) either
the Company shall be the continuing corporation or the successor corporation or
the Person which acquires by sale or conveyance substantially all the assets of
the Company (if other than the Company) shall be a corporation or entity
organized under the laws of the United States of America or any State thereof
and shall expressly assume the due and punctual payment of the principal of and
interest on the Notes, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Agreement to be performed or observed by the Company, by written instrument
executed and delivered to the holders of the Notes by such corporation or
entity, and (ii) immediately after such merger or consolidation, or such sale or
conveyance, no Potential Default or Event of Default shall exist and be
continuing. In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. In the event of any such sale or
conveyance (other than a conveyance by way of lease) the Company or any
successor corporation which shall theretofore have become such in the manner
described in this Section shall be discharged from all obligations and covenants
under this Agreement and the Notes and may be liquidated and dissolved. In the
event that a successor corporation has been substituted for the Company or
another corporation and has assumed payment of the Notes and performance and
observance of the covenants of this Agreement in accordance with this Section
6.2, the Company or other corporation previously obligated under the Agreement
and the Notes shall be discharged from all obligations and covenants under this
Agreement and the Notes and may be liquidated and dissolved.
6.3. Fixed Charge Coverage. The Company and its Subsidiaries will maintain,
on a consolidated basis, a ratio of (i) Profit Before Taxes and Extraordinary
Items plus Fixed Charges plus goodwill amortization minus equity in earnings of
Affiliates to (ii) Fixed Charges greater than 1.75 to 1.0 on a four-quarter
rolling basis calculated at each quarter end.
6.4. Liens. The Company will perform, comply with and observe for the
benefit of the Banks its agreements in Section 3.6 of the Indenture. For
purposes hereof, the provisions of said Section 3.6 of the Indenture, together
with related definitions and ancillary provisions, are hereby incorporated
herein by reference, mutatis mutandis, and shall be deemed to continue in effect
for the benefit of the Banks (as if they held Securities under the Indenture) as
in effect on the date hereof, whether or not said provisions otherwise remain in
effect or are modified; provided that for purposes of this incorporation by
reference, each reference in said Section to "Securities" shall be deemed to
include the Notes issued hereunder, and if the Company is required by said
Section 3.6 to equally and ratably secure the Securities, the Company shall
cause the Notes and the Commitments to be secured by Liens equally and ratably
with the Securities (without implying in any way that the Notes are securities
for purposes of state or federal securities laws) and any and all other
obligations and indebtedness secured by such Liens.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1. Events of Default. For purposes of this Agreement, each of the
following events shall be Events of Default:
7.1.1. Failure to Pay Principal of Notes. The Company defaults in the
payment of any principal of any Note when the same shall become due, either
by the terms thereof or otherwise as herein provided.
7.1.2. Failure to Pay Interest on Notes or Fees. The Company defaults
in the payment of any interest on any Note or any fees hereunder for more
than 10 days after the date due.
7.1.3. Default Under Other Obligations. The Company or any Subsidiary
defaults under any agreement or indenture pursuant to which the Company or
any Subsidiary has borrowed more than $35,000,000 (or has sold notes the
aggregate principal amount of which exceeds $35,000,000) and such default
has not been cured within any period of grace provided with respect
thereto, provided, however, the Company may exclude from the operation of
this Section 7.1.3 one or more Subsidiaries so long as the Company's equity
investment in such excluded Subsidiaries is less than 20% of the Company's
consolidated assets.
7.1.4. Breach of Representation. Any representation or warranty made
by the Company herein or in any writing furnished in connection with or
pursuant to this Agreement shall be false in any material respect on the
date as of which made.
7.1.5. Failure to Perform Negative Covenants. The Company defaults in
the performance or observance of any agreement contained in Section 6 and
such default shall not have been remedied within 30 days after an
Authorized Officer obtained knowledge of such default.
7.1.6. Failure to Perform Other Terms and Conditions. The Company
defaults in the performance or observance of any other agreement, covenant,
term or condition contained herein and such default shall not have been
remedied within 30 days after written notice thereof shall have been
received by the Company from any of the Banks.
7.1.7. Assignment For Benefit of Creditors and Insolvency. The Company
or any Material Subsidiary makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts as they
become due, or is unable generally to pay its debts or is adjudicated
bankrupt or insolvent.
7.1.8. Order for Relief. Any order for relief, judgment or decree is
entered in any proceeding described in Section 7.1.9 relating to the
Company or any Material Subsidiary.
7.1.9. Voluntary Receiver or Bankruptcy. The Company or any Material
Subsidiary petitions or applies to any tribunal for the appointment of a
trustee, receiver or liquidator of the Company or any Material Subsidiary,
or of any substantial part of the assets of the Company or any Material
Subsidiary, or commences any proceedings (other than proceedings for the
voluntary liquidation and dissolution of a Material Subsidiary) relating to
the Company or any Material Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or law of any jurisdiction, whether now or hereafter in effect.
7.1.10. Involuntary Receiver or Bankruptcy. Any petition or
application described in Section 7.1.9 is filed, or any proceedings
described in Section 7.1.9 are commenced, against the Company or any
Material Subsidiary, and the Company or any Material Subsidiary by any act
indicates its approval thereof, consent thereto, or acquiescence therein,
or an order, judgment or decree is entered appointing any such trustee,
receiver or liquidator, or approving the petition in any such proceedings,
and such order, judgment or decree remains in effect and unstayed for more
than 60 days.
7.1.11. Involuntary Order for Relief. Any order for relief, judgment
or decree is entered in any proceedings against the Company or any Material
Subsidiary decreeing the dissolution, winding-up or liquidation of the
Company or any Material Subsidiary and such order, judgment or decree is
unstayed and in effect for more than 60 days.
7.1.12. Unsatisfied Judgment. A final judgment or judgments for the
payment of money aggregating in excess of $35,000,000 is or are outstanding
against the Company or any Material Subsidiary and any one of such
judgments has been outstanding for more than 30 days from the date of its
entry and has not been discharged in full or stayed.
7.2. Rights and Duties After Default.
7.2.1. Acceleration. If any Event of Default occurs and is continuing,
then, upon the election of the Required Banks (which election shall be held
in a manner determined by the Administrative Agent and communicated by the
Administrative Agent to the Banks), the Banks' Commitments to make Loans
under this Agreement shall terminate and, upon the election of Banks
holding greater than 50% of the then outstanding Loans, the Notes and all
interest, fees and other amounts payable under this Agreement or the Notes
shall immediately become due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived;
provided, however, that upon the occurrence of an Event of Default under
Sections 7.1.7, 7.1.8, 7.1.9, 7.1.10 or 7.1.11, the Commitments shall
automatically terminate and the Loans and all interest, fees and other
amounts payable under the Agreement or the Notes shall become immediately
due and payable without declaration or notice to the Company. In addition,
if the Company fails to pay principal or interest on a Note in accordance
with this Agreement and such failure is continuing, the Bank holding such
Note may, at its option, in addition to any right, power or remedy
permitted by law or equity, by notice in writing to the Company, terminate
its Commitment to make Loans under this Agreement and declare the unpaid
principal amount of such Note to be due and payable and such Note shall
thereupon be and become, forthwith due and payable, together with interest
thereon as provided in Section 7.2.2.
7.2.2. Interest Rate After Acceleration. After any acceleration of any
Loan or Loans pursuant to Section 7.2.1, the Company agrees to pay interest
on such accelerated Loan or Loans at a rate per annum equal to the
Alternate Base Rate plus one percent (1%), changing when and as the
Alternate Base Rate changes.
8. WAIVERS, AMENDMENTS AND REMEDIES.
8.1. Waivers and Remedies. No delay or omission of the Administrative
Agent, the Required Banks, or any Bank to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Event of
Default or an acquiescence therein, and any single or partial exercise of any
such right shall not preclude other or further exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions or provisions
of the Loan Documents whatsoever shall be valid unless in writing signed by the
Required Banks or all of the Banks, if required, and then only to the extent in
such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available to
the Banks until the Obligations have been paid in full.
8.2. Amendments. With the consent in writing of Required Banks, the
Administrative Agent and the Company may, subject to the provisions of this
Section 8, from time to time enter into agreements supplemental hereto for the
purpose of adding any provisions to this Agreement or changing in any manner the
rights of the Banks or the Company hereunder or waive any Event of Default
hereunder; provided, however, that no such supplemental agreement shall (i)
extend the Termination Date or the final maturity of any Note or reduce the
principal amount thereof, reduce any fees or reduce the rate or extend the time
of payment of interest thereon, without the consent of all Banks (except for
extensions in accordance with Section 2.18 and except that any of the foregoing
with respect to a Competitive Bid Note shall only require the consent of the
holder of such Note), (ii) change the standard of "greater than 50%" specified
in the definition of Required Banks or in Section 7.2.1 without the consent of
all Banks, (iii) increase the amount or extend the term of the Commitment of any
Bank without the consent of that Bank, or (iv) change or amend this Section 8.2
without the consent of all Banks.
9. CONDITIONS PRECEDENT TO CLOSING.
9.1 The closing shall be deemed to be held at the office of the
Administrative Agent in Chicago, Illinois, and on the date of execution of this
Agreement, the Company shall deliver to the Administrative Agent for the benefit
of the Banks:
(i) an executed copy of this Agreement,
(ii) a certificate signed by any Authorized Officer stating
that as of such closing date no Event of Default or Potential Default
shall exist and that the representations and warranties contained in
Article 4 are true and correct on such closing date,
(iii) copies of the Certificate of Incorporation of the
Company, together with all amendments, certified by the Secretary or
Assistant Secretary of the Company, and a certificate of good standing,
certified on or within ten days prior to the date hereof by the
Secretary of State of Delaware,
(iv) copies, certified by the Secretary or Assistant Secretary
of the Company, of its By-Laws and its Board of Directors' Resolutions
(and resolutions of other bodies, if any are deemed necessary by
counsel for any Bank), authorizing the execution, delivery and
performance of the Loan Documents,
(v) an incumbency certificate, executed by the Secretary or
Assistant Secretary of the Company, which shall identify by name and
title and bear the signature of the officers of the Company authorized
to sign the Loan Documents and to sign any other documents, reports and
notices in connection with this Agreement and to make borrowings
hereunder (on which the Banks shall be entitled to rely until informed
of any change in writing by the Company),
(vi) a written opinion of the Company's counsel, McGrath North
Mullin & Kratz, PC LLO addressed to the Banks in the form of Exhibit D,
(vii) Syndicated Notes payable to the order of each of the
Banks,
(viii) satisfactory evidence that those fees due on the date
the Company executes this Agreement have been paid in full, and
(ix) satisfactory evidence that the Prior Agreement shall have
been terminated and cancelled and any and all accrued and unpaid
principal, interest, fees and expenses due and payable under the terms
of the Prior Agreement or any other agreement, document or instrument
executed in connection therewith have been paid in full.
9.2 The Banks shall not be required to make Loans under this Agreement
unless on each Loan Closing Date (i) no Event of Default or Potential Default
shall exist, (ii) the representations and warranties contained in Sections 4.1,
4.2, 4.3, 4.4.1, 4.5, 4.8, 4.9, 4.10 and 4.11 shall be true and correct in all
material respects as of such Loan Closing Date, and (iii) all legal matters
incident to such borrowings shall be satisfactory to the Administrative Agent
and its counsel. On each Loan Closing Date with respect to a Bid Absolute Rate
Loan, the Company shall deliver to the Administrative Agent, for the account of
the relevant Bank, a duly executed and completed Bid Note if requested.
9.3 On the date of (i) each extension pursuant to Section 2.18 hereof or
(ii) the date of each increase in Commitments pursuant to Section 2.23 hereof,
the Company shall deliver to the Administrative Agent for the benefit of the
Banks a certificate, signed by any Authorized Officer, stating that as of such
date no Event of Default or Potential Default exists and, in the case of each
extension pursuant to Section 2.18, that the representations and warranties
contained in Section 4 are true and correct in all material respects on such
date as if made on such date, except that the financial statements referred to
in Section 4.4 shall be deemed to be the audited consolidated financial
statements of the Company and its Subsidiaries most recently delivered to the
Banks.
10. GENERAL PROVISIONS.
10.1. Benefit of Agreement. Each Bank will accept its Notes as evidence of
Loans made in the ordinary course of its commercial banking business. The terms
and provisions of this Agreement and the Notes shall be binding upon and inure
to the benefit of the Company and the Banks and their respective successors and
assigns, except (a) the Company may not, except as set forth in Section 6.2,
assign its rights or obligations hereunder or under the Notes without the prior
consent of all Banks and (b) a Bank may not assign its rights or obligations
hereunder or under the Notes or sell or grant any interest or participation
herein, in the Commitments or any Loan except as follows:
10.1.1. Assignments. Any Bank may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit L or in such other form as may be
agreed to by the parties thereto and approved by the Administrative Agent.
The consent of the Company shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Bank, an
Affiliate thereof or an Approved Fund; provided, however, that if an Event
of Default has occurred and is continuing, the consent of the Company shall
not be required. The consent of the Administrative Agent shall be required
prior to any assignment becoming effective; provided that no consent of the
Administrative Agent shall be required for an assignment from a Bank to an
Affiliate, or an Approved Fund, of such Bank. Any required consent shall
not be unreasonably withheld or delayed. Each such assignment shall be in
an amount not less than the lesser of (i) $5,000,000 unless otherwise
agreed by the Company and the Administrative Agent or (ii) the remaining
amount of the assigning Bank's Commitment (calculated as at the date of
such assignment).
10.1.2. [Intentionally Omitted].
10.1.3. Effect of Assignments. Upon the effectiveness of any
assignment pursuant to Section 10.1.1 hereof, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned, shall have
the rights and obligations of a Bank under this Agreement, and the
assigning Bank shall, to the extent of the interest assigned, be released
from its obligations under this Agreement.
10.1.4. Participations.
(a) Any Bank may, without the consent of the Company or the
Administrative Agent, sell participations to one or
more banks or other entities (a "Participant") in all
or a portion of such Bank's rights and obligations
under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that
(A) such Bank's obligations under this Agreement shall
remain unchanged, (B) such Bank shall remain solely
responsible to the other parties hereto for the
performance of such obligations and (C) the Company,
the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations
under this Agreement. Any agreement or instrument
pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole
right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of
this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without
the consent of the Participant, agree to any amendment,
modification or waiver described in the proviso to
Section 8.2 that affects such Participant. Subject to
paragraph (b) of this Section, the Company agrees that
each Participant shall be entitled to the benefits of
Sections 2.11, 2.12 and 2.13 to the same extent as if
it were a Bank and had acquired its interest by
assignment pursuant to Section 10.1.1. To the extent
permitted by law, each Participant also shall be
entitled to the benefits of Section 12 as though it
were a Bank.
(b) A Participant shall not be entitled to receive any
greater payment under Section 2.12 or 2.13 than the
applicable Bank would have been entitled to receive
with respect to the participation sold to such
Participant, unless the sale of the participation to
such Participant is made with the Company's prior
written consent. A Participant that would be a Non-U.S.
Bank if it were a Bank shall not be entitled to the
benefits of Section 2.12 unless the Company is notified
of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to
comply with Section 2.12.3 as though it were a Bank.
10.1.5. General Restrictions. Notwithstanding the foregoing, (i) all
assignments and participations permitted hereunder shall be effected
pursuant to forms of assignment agreements or participation agreements as
may be approved by the Administrative Agent in its reasonable discretion;
(ii) any such assignment pursuant to this Section will become effective
five Business Days after the Administrative Agent's receipt of a written
notice of such assignment from the assigning Bank and the assignee Bank and
a processing and recordation fee of $3,500 from the assigning Bank; (iii)
no Bank shall effect any assignment or participation that may require the
Company to file a registration statement with the Securities and Exchange
Commission or apply to qualify the Loans or Commitments of that Bank or
other Obligations owed to that Bank under blue sky law of any state; and
(iv) no Bank shall, as between Company and that Bank, be relieved of any of
its obligations hereunder as a result of any granting of participations in
all or any part of the Loans or participations therein, or Commitments of
that Bank or other obligations owed to such Bank.
10.1.6. Federal Reserve Bank. Notwithstanding anything herein to the
contrary, any Bank may at any time without the consent of the Company or
the Administrative Agent and without restrictions as to amount or
otherwise, pledge and assign as collateral all or any portion of its rights
under this Agreement, any Note or any Loan to a Federal Reserve Bank,
provided that no such pledge or assignment shall release the transferor
Bank from its obligations hereunder.
10.2. Survival of Representations. All representations and warranties of
the Company contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
10.3. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Bank shall be obligated to extend credit to the
Company in an amount in violation of any limitation or prohibition provided by
any applicable statute or regulation.
10.4. Taxes. Any taxes (excluding income taxes) payable or ruled payable by
Federal or State authority in respect of the Loan Documents shall be paid by the
Company, together with interest and penalties, if any.
10.5. Choice of Law. The Loan Documents (other than those containing a
contrary express choice of law provision) shall be construed in accordance with
and governed by the laws of the State of New York.
10.6. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.7. Entire Agreement. The Loan Documents embody the entire agreement and
understanding between the Company and the Banks and supersede all prior
agreements and understandings between the Company and the Banks relating to the
subject matter hereof.
10.8. Several Obligations. The respective obligations of the Banks
hereunder are several and not joint, and no Bank shall be the partner or agent
of any other (except to the extent to which the Administrative Agent is
authorized to act as such). The failure of any Bank to perform any of its
obligations hereunder shall not relieve any other Bank from any of its
obligations hereunder.
10.9. Expenses. The Company shall reimburse the Administrative Agent and
the Banks for any and all reasonable costs and out-of-pocket expenses and
internal charges paid or incurred by the Administrative Agent or the Banks in
connection with the collection and enforcement (including reasonable attorneys
fees and reasonable time charges of attorneys who may or may not be employees of
the Administrative Agent or the Banks) of the Loan Documents. The obligations of
the Company under this Section 10.9 shall survive the termination of this
Agreement.
10.10. Numbers of Documents. All statements, notices and requests hereunder
shall be furnished to the Administrative Agent with sufficient counterparts so
that the Administrative Agent may furnish one to each of the other Banks.
10.11. Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.12. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations and calculations hereunder shall be made on a consolidated basis
for the Company and its Subsidiaries in accordance with Generally Accepted
Accounting Principles.
10.13. Confidentiality. Each Bank agrees to hold any confidential
information which it may receive from the Company pursuant to this Agreement in
confidence, except for disclosure as required (i) to its Affiliates and to other
Banks and their respective Affiliates, (ii) to legal counsel, accountants, and
other professional advisors to such Bank or any assignee thereof or participant
related thereto under Section 10.1, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which such
Bank is a party, (vi) to such Bank's direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, and (vii) to rating agencies if
requested or required by such agencies in connection with a rating relating to
the transactions evidenced hereby. The Company authorizes each Bank to disclose
to any assignee or participant described in Section 10.1 or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Bank's possession concerning the creditworthiness of the Company and its
Subsidiaries; provided that each Transferee and prospective Transferee agrees to
be bound by the confidentiality provisions of this Section 10.13.
10.14. USA PATRIOT Act. Each Bank that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act") hereby notifies the Company that pursuant to the requirements
of the Act, it is required to obtain, verify and record information that
identifies the Company, which information includes the name and address of the
Company and other information that will allow such Bank to identify the Company
in accordance with the Act.
11. THE AGENTS.
11.1. Appointment and Powers. JPMCB is hereby appointed Administrative
Agent hereunder, and each of the Banks irrevocably authorizes the Administrative
Agent to act as the administrative agent of such Bank. BofA is hereby appointed
Syndication Agent. JPMorgan and BAS are hereby appointed the Arrangers. The
Administrative Agent agrees to act as such upon the express conditions set forth
in this Section 11. Except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.
11.2. Powers. The Administrative Agent shall have and may exercise such
powers hereunder as are specifically delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor the Syndication Agent shall have
any implied duties to the Banks, or any obligation to the Banks to take any
action hereunder except any action specifically provided by this Agreement to be
taken by the Administrative Agent.
11.3. General Immunity. None of the Administrative Agent, the Syndication
Agent, the Arrangers, nor any of their respective directors, officers, agents or
employees shall be liable to the Banks or any Bank for any action taken or
omitted to be taken by it or them hereunder or in connection herewith except for
its or their own gross negligence or willful misconduct.
11.4. No Responsibility for Loans, Recitals, Etc. None of the
Administrative Agent, the Syndication Agent, or the Arrangers shall be
responsible to the Banks for any recitals, reports, statements, warranties or
representations herein or any Loans hereunder or be bound to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement.
11.5. Right to Indemnity. The Administrative Agent shall be fully justified
in failing or refusing to take any action hereunder unless it shall first be
indemnified to its satisfaction by the Banks Pro Rata in accordance with the
Commitments against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action except in
connection with its gross negligence or willful misconduct.
11.6. Action on Instructions of Banks. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
in accordance with written instructions signed by the Required Banks (other than
in connection with amendments requiring consent of all Banks or an affected Bank
under Section 8.2), and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks and on all holders of
Notes.
11.7. Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Banks (except as to money or securities received by it or its authorized agents)
for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Administrative Agent shall be entitled to advice
of counsel concerning all matters pertaining to the agency hereby created and
its duties hereunder.
11.8. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely in good faith upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Administrative Agent.
11.9. May Treat Payee as Owner. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment of transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
person, firm or corporation who at the time of making such request or giving
such authority or consent is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or of any
Note or Notes issued in exchange therefor.
11.10. Administrative Agent's Reimbursement. Each Bank agrees to reimburse
the Administrative Agent in the amount of such Bank's Pro Rata share of the
Commitments for any expenses not reimbursed by the Company for which the
Administrative Agent is entitled to reimbursement by the Company under the Loan
Documents and for any other expenses incurred by the Administrative Agent on
behalf of the Banks in connection with the enforcement of the Loan Documents if
such other expenses are not reimbursed by the Company.
11.11. Rights as a Bank. With respect to its Commitment, Loans made by it
and Notes issued to it, each of the Administrative Agent and the Syndication
Agent shall have the same rights and powers hereunder as any Bank and may
exercise the same as though it were not the Administrative Agent or the
Syndication Agent, as the case may be, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include each such party in its
individual capacity. The Administrative Agent and the Syndication Agent may
accept deposits from, lend money to, and generally engage in any kind of banking
or trust business with the Company as if it were not the Administrative Agent or
Syndication Agent.
11.12. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent, the
Syndication Agent, or the Arrangers or any other Bank and based on the financial
statements referred to in Section 4.4 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Syndication Agent, or the
Arrangers or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
11.13. Resignation of Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the
Banks and the Company. Upon any such resignation, the Company shall have the
right to appoint a successor Administrative Agent reasonably satisfactory to the
Required Banks. If no such successor Administrative Agent shall have been so
appointed by the Company and shall have accepted such appointment within 30 days
after the retiring Administrative Agent's giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent reasonably satisfactory to the Company, which
shall be a bank which has an office in the United States of America with a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Section 11 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent.
11.14. Syndication Agent and Co-Documentation Agents. None of the Banks
identified in this Agreement as Syndication Agent or a Co-Documentation Agent
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, none of such Banks shall have or be deemed to have a
fiduciary relationship with any Bank. Each Bank hereby makes the same
acknowledgements with respect to the applicable Banks in their capacity as
Syndication Agent and Co-Documentation Agent as it makes with respect to the
Administrative Agent in this Agreement.
12. SETOFF.
If the Company becomes insolvent, however evidenced, or any Event of
Default occurs, the Company agrees to recognize, honor and comply with each
Bank's right of setoff under any applicable law and each Bank with a Loan agrees
that any assets available to such Bank for setoff shall be shared with all the
Banks with an outstanding Loan so that each such Bank receives for offset a
share of such assets equal to the proportion that such Bank's Loans bear to the
sum of all the then outstanding Loans.
13. NOTICES.
13.1. Giving Notice. Any notice (except Borrowing Notices and Rate
Selection Notices) required or permitted to be given under this Agreement may
be, and shall be deemed, given when deposited in the United States mail, postage
prepaid, or by overnight delivery service, telegraph, telecopy or telex when
delivered to the appropriate office for transmission, charges, prepaid,
addressed to the addresses indicated in each Bank's Administrative
Questionnaire, other than for each of the Company and the Administrative Agent,
whose notice information appears on its signature page to this Agreement. The
Company and the Banks may each change the address for service of notice upon it
by a notice in writing to the others.
14. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Administrative Agent and the Company
on one counterpart and each Bank shall have signed a counterpart and notified
the Administrative Agent by telex, telecopy or telephone that it has taken such
action.
The remainder of this page is intentionally blank.
IN WITNESS WHEREOF, the Company, the Banks, the Syndication Agent, and
the Administrative Agent have executed this Agreement as of the date first above
written.
CONAGRA FOODS, INC.,
as the Company
By: /s/ Scott E. Messel
Name: Scott E. Messel
Title: Senior Vice President, Treasurer
and Assistant Corporate Secretary
Address:
One ConAgra Drive
Omaha, Nebraska 68102
Attention: Scott E. Messel
Telephone No.: (402) 595-4063
Facsimile No.: (405) 595-4438
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Bank
By: /s/ Stephanie Parker
Name: Stephanie Parker
Title: Vice President
Address:
270 Park Avenue
New York, New York 10017
Attention: Pamela Lambiase
Telephone No.: (212) 270-4105
Facsimile No.: (212) 270-0998
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Bank
By: /s/ David Catherall
Name: David Catherall
Title: Vice President
Address: 231 South LaSalle Street
Chicago, Illinois 60604
Attention: David Catherall
Telephone No.: 312-828-7169
Facsimile No.: 415-503-5026
CITIBANK, N.A.,
as Co-Documentation Agent and as a
Bank
By: /s/ Andrew Kreeger
Name: Andrew Kreeger
Title: Vice President
Address: 388 Greenwich Street
23rd Floor
New York, NY 10013
Attention:
Telephone No.: 212-816-5551
Facsimile No.: 646-662-1064
BNP PARIBAS,
as Co-Documentation Agent and as a
Bank
By: /s/ Tom Ambrose
Name: Tom Ambrose
Title: Director
By: /s/ Gaye Plunkett
Name: Gaye Plunkett
Title: Vice President
Address:
209 South LaSalle Street, Suite 500
Chicago, IL 60604
Attention: Tom Ambrose
Telephone No.: 312-977-2221
Facsimile No.: 312-977-1380
MERRILL LYNCH BANK USA,
as Co-Documentation Agent and as
a Bank
By: /s/ Louis Alder
Name: Louis Alder
Title: Director
Address: 15 West South Temple
Suite 300
Salt Lake City, UT 84101
Attention: David Millett
Telephone No.: (801) 526-8312
Facsimile No.: (801) 933-8641
ABN AMRO BANK N.V.,
as a Bank
By: /s/ Terrence Ward
Name: Terrence Ward
Title: Managing Director
By: /s/ Pradeep Bhatia
Name: Pradeep Bhatia
Title: Vice President
Address:540 W Madison Suite 2711
Chicago, Ill, 60661
Attention: Luciana Passos
Telephone No.: 312 904 2267
Facsimile No.: 312 992 1727
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Bank
By: /s/ Tsuguyuki Umene
Name: Tsuguyuki Umene
Title: Deputy General Manager
Address: 227 West Monroe Street
Suite 2300
Chicago, Illinois 60606
Attention: Wayne Yamanaka
Telephone No.: (312) 696-4664
Facsimile No.: (312) 696-4535
COBANK, ACB,
as a Bank
By: /s/ S. Richard Dill
Name: S. Richard Dill
Title: Vice President
Address: 5500 South Quebec Street
Greenwood Village, CO 80111
Attention:
Telephone No.: 303-740-4197
Facsimile No.: 303-796-1462
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank International", New
York Branch, as a Bank
By: /s/ Robert K. Hughes
Name: Robert K. Hughes
Title: Vice President
Address: 13355 Noel Road, Suite 1000
Dallas, TX 75240-6645
Attention: Robert K. Hughes
Telephone No.: 972-419-5276
Facsimile No.: 972-419-6315
By: /s/ Rebecca Morrow
Name: Rebecca Morrow
Title: Executive Director
Address: 245 Park Avenue
New York, NY 10167
Attention: Legal Department
Telephone No.: 212-916-3773
Facsimile No.: 212-916-7880
THE ROYAL BANK OF SCOTLAND plc,
as a Bank
By: /s/ Michaela V. Galluzo
Name: Michaela V. Galluzo
Title: Vice President
Address:
101 Park Avenue, 6th Floor
New York, NY 10178
Attention: Mica Galluzzo
Telephone No.: 212-401-3549
Facsimile No.: 212-401-3456
BARCLAYS BANK PLC,
as a Bank
By: /s/ Nicholas Bell
Name: Nicholas Bell
Title: Director
Address: 200 Park Avenue
4th Floor
New York
NY 10128
Attention: Nicholas Bell
Telephone No.: 212-412-4029
Facsimile No.: 212-412-7600
LEHMAN BROTHERS COMMERCIAL BANK,
as a Bank
By: /s/ George Janes
Name: George Janes
Title: Chief Credit Officer
Address:
Lehmans Brothers Commercial Bank
C/O Nancy Wong
745 7th Avenue, 16th Floor
New York, NY 10019
Attention: Nancy Wong
Telephone No.: (212) 526-0568
Facsimile No.: (646) 758-5000
MORGAN STANLEY BANK,
as a Bank
By: /s/ Daniel Twenge
Name: Daniel Twenge
Title: Vice President
Address:
1585 Broadway, 2nd Floor
New York, NY 10036
Attention: Daniel Twenge
Telephone No.: (212) 761-2225
Facsimile No.: (212) 761-3932
SUNTRUST BANK,
as a Bank
By: /s/ Mike Lapresi
Name: Mike Lapresi
Title: Managing Director
Address: 303 Peachtree Street, NE
MC GA-Atlanta-1922
3rd Floor
Atlanta, GA 30308
Attention: Mike Lapresi
Telephone No.: 404-588-8768
Facsimile No.: 404-575-2693
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Karen Nelsen
Name: Karen Nelsen
Title: Vice President
Address: 1700 Farnam Street
OM-NE-T2CB
Omaha, NE 68102
Attention: Karen Nelsen
Telephone No.: 402-348-6581
Facsimile No.: 402-348-6841
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Zach Johnson
Name: Zach Johnson
Title: Senior Vice President
Address:
1445 Ross Ave. 23rd Floor
Suite 2300
Dallas, Texas 75202
Attention: Zach Johnson
Telephone No.: (214) 661-1225
Facsimile No.: (214) 969-0371
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Thomas M. Harper
Name: Thomas M. Harper
Title: Managing Director
Address: One South Broad St
PA 4843
Philadelphia, PA 19107
Attention: Tom Harper
Telephone No.: (267) 321-6616
Facsimile No.: (267) 321-6700
UBS LOAN FINANCE LLC,
as a Bank
By: /s/ Joselin Fernandes
Name: Joselin Fernandes
Title: Associate Director
By: /s/ Irja R. Otsa
Name: Irja R. Otsa
Title: Associate Director
Address: 677 Washington Blvd.
Stamford, CT 06901
Attention: Safraz Hassan
Telephone No.: 203 719 3143
Facsimile No.: 203 719 3888
BANCA INTESA,
as a Bank
By: /s/ Frank Maffei
Name: Frank Maffei
Title: Vice President
By: /s/ Anthony F. Giobbi
Name: Anthony F. Giobbi
Title: First Vice President
Address: One William Street
New York, NY 10004
Attention: John J. Michalisin
Telephone No.: 212 607 3918
Facsimile No.: 212 809 9780
BANCA NAZIONALE DEL LAVORO
S.p.A., NEW YORK BRANCH,
as a Bank
By: /s/ Filippo Cattaneo
Name: Filippo Cattaneo
Title: Relationship Manager
By: /s/ Francesco Di Mario
Name: Francesco Di Mario
Title: Senior Manager
Address: 51 West 52nd Street
36th Floor
New York NY 10019
Attention:Mr. Francesco Di Mario
Telephone No.: (212) 314-0239
Facsimile No.: (212) 765-2978
THE BANK OF NOVA SCOTIA,
as a Bank
By: /s/ N. Bell
Name: N. Bell
Title: Sr. Manager
Address:600 Peachtree St., NE
Suite 2700
Atlanta, GA 30308
Attention: George Wong
Telephone No.: 404-877-1556
Facsimile No.: 404-888-8998
BANCO BILBAO VIZCAYA ARGENTARIA S.A.,
as a Bank
By: /s/ Giampaolo Consigliere
Name: Giampaolo Consigliere
Title: Vice President
By: /s/ Maria Vizan
Name: Maria Vizan
Title: Assistant Vice President
Address:
Attention:
Telephone No.:
Facsimile No.:
MIZUHO CORPORATE BANK, LTD.,
as a Bank
By: /s/ Robert Gallagher
Name: Robert Gallagher
Title: Senior Vice President
Address:
1251 Avenue of the Americas
New York, New York 10020
Attention: Robert Haviken
Telephone No.: (212) 282-4954
Facsimile No.: (212) 282-4488
SOCIETE GENERALE,
as a Bank
By: /s/ Kimberly A. Metzger
Name: Kimberly A. Metzger
Title: Vice President
Address:181 West Madison Street
Suite 3400
Chicago, IL 60602
Attention: Kimberly A. Metzger
Telephone No.: 312-578-5123
Facsimile No.: 312-578-5099
STATE STREET BANK AND TRUST COMPANY,
as a Bank
By: /s/ Mary Carey
Name: M. Carey
Title: Vice President
Address: 225 Franklin St.
Boston, MA
TORONTO DOMINION (TEXAS) LLC
as a Bank
By: /s/ Jackie Barrett
Name: Jackie Barrett
Title: Authorized Signatory
Address:
Toronto Dominion (Texas) LLC
C/O TD Securities Inc.
77 King St W
RTT18
Toronto, ON M5K1AZ
Attention: Hugh Roy Enniss
Telephone No.: 416-307-0497
Facsimile No. 416-983-1708