1
EXHIBIT 4.3
EXECUTION COPY
U.S. $340,000,000
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of December 17, 1997
Among
CORN PRODUCTS INTERNATIONAL, INC.
as Borrower,
THE LENDERS NAMED HEREIN
as Lenders,
CITIBANK, N.A.
as Administrative Agent,
CITICORP SECURITIES, INC.
as Arranger,
THE FIRST NATIONAL BANK OF CHICAGO
as Documentation Agent
THE CHASE MANHATTAN BANK
as Co-Agent
and
CPC INTERNATIONAL INC.
as Interim Guarantor,
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ...................................... 1
SECTION 1.02. Computation of Time Periods ................................ 19
SECTION 1.03. Accounting Terms ........................................... 19
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances ............................................. 19
SECTION 2.02. Making the A Advances ...................................... 20
SECTION 2.03. The B Advances ............................................. 21
SECTION 2.04. Fees ....................................................... 26
SECTION 2.05. Termination or Reduction of the Commitments ................ 26
SECTION 2.06. Repayment of A Advances .................................... 26
SECTION 2.07. Interest on A Advances ..................................... 26
SECTION 2.08. Interest Rate Determination ................................ 27
SECTION 2.09. Optional Conversion of A Advances .......................... 29
SECTION 2.10. Prepayments of A Advances .................................. 29
SECTION 2.11. Increased Costs and Increased Capital ...................... 30
SECTION 2.13. Payments and Computations .................................. 32
SECTION 2.14. Taxes ...................................................... 34
SECTION 2.15. Sharing of Payments, Etc ................................... 36
SECTION 2.16. Use of Proceeds ............................................ 37
SECTION 2.17. Extension of Termination Date .............................. 37
SECTION 2.18. Increase in the Aggregate Commitments ...................... 40
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances ................... 42
SECTION 3.02. Conditions Precedent to Each A Borrowing ................... 43
SECTION 3.03. Conditions Precedent to Each B Borrowing ................... 44
SECTION 3.04. Conditions Precedent to Release of Interim Guaranty ........ 45
3
ii
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower .............. 45
SECTION 4.02. Representations and Warranties of the Interim Guarantor ..... 47
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants ...................................... 50
SECTION 5.02. Negative Covenants ......................................... 54
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default .......................................... 56
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action ................................... 59
SECTION 7.02. Administrative Agent's Reliance, Etc ....................... 60
SECTION 7.03. Citibank, First Chicago, Chase Manhattan and Affiliates .... 60
SECTION 7.04. Lender Credit Decision ..................................... 61
SECTION 7.05. Indemnification ............................................ 61
SECTION 7.06. Successor Administrative Agent ............................. 62
SECTION 7.07. Documentation Agent, Co-Agent and Arranger ................. 62
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc ............................................ 62
SECTION 8.02. Notices, Etc ............................................... 63
SECTION 8.03. No Waiver; Remedies ........................................ 63
SECTION 8.04. Costs and Expenses .......................................... 64
4
iii
SECTION 8.05. Right of Set-off ........................................... 65
SECTION 8.06. Binding Effect ............................................. 66
SECTION 8.07. Assignments, Designations and Participations ............... 66
SECTION 8.08. Acknowledgements ........................................... 70
SECTION 8.09. Consent to Jurisdiction .................................... 70
SECTION 8.10. GOVERNING LAW .............................................. 71
SECTION 8.11. Execution in Counterparts .................................. 71
SECTION 8.12. Waiver of Jury Trial ....................................... 71
SECTION 8.13. Certain Actions ............................................ 72
ARTICLE IX
INTERIM GUARANTY
SECTION 9.01. Interim Guaranty ........................................... 72
Schedule I List of Applicable Lending Offices
Schedule 5.02(a) Existing Liens
Exhibit A-1 Form of A Note
Exhibit A-2 Form of B Note
Exhibit B-1 Form of Notice of A Borrowing
Exhibit B-2 Form of Notice of B Borrowing
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Designation Agreement
Exhibit E Form of Confidentiality Agreement
Exhibit F-1 Form of Opinion of In-House Counsel for the
Borrower
Exhibit F-2 Form of Opinion of New York Counsel for
the Borrower
Exhibit F-3 Form of Opinion of In-House Counsel for the
Interim Guarantor
Exhibit G Form of Opinion of Special New York
Counsel to the Administrative Agent
5
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of December 17, 1997 (this
"Agreement") among CORN PRODUCTS INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), the banks (the "Banks") listed on the signature pages hereof,
CITIBANK, N.A. ("Citibank"), as administrative agent (the "Administrative
Agent"), CITICORP SECURITIES, INC., as arranger (the "Arranger"), THE FIRST
NATIONAL BANK OF CHICAGO ("First Chicago"), as documentation agent (the
"Documentation Agent"), The Chase Manhattan Bank ("Chase Manhattan"), as
co-agent ("Co-Agent") for the Lenders hereunder and CPC INTERNATIONAL INC., a
Delaware corporation (the "Interim Guarantor").
PRELIMINARY STATEMENTS:
1. The Borrower was formed in March 1997 for the purpose of
effecting the Distribution (as defined in the Form 10 defined below) and
assuming the operations of the corn refining business of the Interim Guarantor
as more fully described in the Form 10.
2. The Borrower has requested, and the Lenders have agreed, to
enter into this Agreement to provide financing to the Borrower for general
corporate purposes.
3. The Interim Guarantor has agreed to enter into this
Agreement and to guaranty the Borrower's Obligations (as defined below) until
the Interim Guaranty Release Date only on the terms and subject to the
conditions and limitations set forth in Section 9.01 below.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Lender to the Borrower as
part of an A Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
6
2
"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Anniversary Date" means December 17, 1998 and December 17 in
each succeeding calendar year occurring during the term of this
Agreement.
"Applicable Facility Fee" means, for each day, the rate of
interest per annum (expressed in basis points, i.e., 1/100 of 1%) set
forth below opposite the Applicable Performance Level in effect on the
immediately preceding last day of May, August, November or February, as
the case may be.
APPLICABLE PERFORMANCE APPLICABLE FACILITY
LEVEL FEE
1 6.50
2 7.00
3 8.00
4 10.00
5 12.50
6 17.50
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a B Advance,
7
3
the office of such Lender notified by such Lender to the Administrative
Agent as its Applicable Lending Office with respect to such B Advance.
"Applicable Margin" means, at any time, the rate of interest
per annum (expressed in basis points, i.e., 1/100 of 1%) set forth
below opposite the Applicable Performance Level in effect on the first
day of the Interest Period therefor, in the case of a Eurodollar Rate
Advance or in effect, from time to time, in the case of a Base Rate
Advance.
APPLICABLE
PERFORMANCE APPLICABLE MARGIN
LEVEL
Eurodollar
Base Rate Rate
1 0.00 13.50
2 0.00 15.00
3 0.00 17.00
4 0.00 20.00
5 0.00 25.00
6 0.00 30.00
"Applicable Performance Level" shall mean the applicable level
for adjusting the Applicable Facility Fee and Applicable Margin before
and after the Public Debt Rating Date as follows:
8
4
APPLICABLE PRIOR TO PUBLIC DEBT RATING
PERFORMANCE PUBLIC DEBT FROM AND AFTER
LEVEL RATING DATE PUBLIC DEBT RATING DATE
- -----------------------------------------------------------------------------
1 Interest Coverage Ratio greater Higher than or equal to A from
than or equal to 8.0 and Debt to S&P or higher than or equal
Capitalization Ratio less than or to A2 from Moody's
equal to 30.0%
2 Interest Coverage Ratio greater Higher than or equal to A-
than or equal to 6.9 but less (but lower than A) from S&P or
than 8.0 and Debt to higher than or equal to A3
Capitalization Ratio greater than (but lower than A2) from
30.0% but less than or equal to Moody's
33.0%
3 Interest Coverage Ratio greater Higher than or equal to BBB+
than or equal to 6.0 but less (but lower than A-) from S&P
than 6.9 and Debt to or higher than or equal to
Capitalization Ratio greater than Baa1 (but lower than A3) from
33.0% but less than or equal to Moody's
36.0%
4 Interest Coverage Ratio greater Higher than or equal to BBB
than or equal to 5.0 but less (but lower than BBB+) from S&P
than 6.0 and Debt to or higher than or equal to
Capitalization Ratio greater than Baa2 (but lower than Baa1)
36.0% but less than or equal to from Moody's
39.0%
5 Interest Coverage Ratio greater Higher than or equal to BBB-
than or equal to 4.4 but less (but lower than BBB) from S&P
than 5.0 and Debt to or higher than or equal to
Capitalization Ratio greater than Baa3 (but lower than Baa2)
39.0% but less than or equal to from Moody's
41.0%
6 Interest Coverage Ratio less Lower than BBB- from S&P and
than 4.4 and Debt to lower than Baa3 from Moody's,
Capitalization Ratio greater or Unrated
than 41.0%
provided that (A) the Applicable Facility Fee and Applicable Margin
shall be set in accordance with Applicable Performance Level 4 until
the earlier of the delivery of financial statements for the fiscal
quarter ended June 30, 1998 pursuant to Section 5.01(d)(i)(B) or the
Public Debt Rating Date, (B) prior to the
9
5
Public Debt Rating Date, no change in the Applicable
Facility Fee or the Applicable Margin shall be effective until three
Business Days after the date on which the Administrative Agent receives
financial statements pursuant to Section 5.01(d)(i)(B) or (ii)(B) and a
certificate of an Authorized Financial Officer of the Borrower
demonstrating the Borrower's Debt to Capitalization Ratio and Interest
Coverage Ratio and (C) if the Borrower has not submitted to the
Administrative Agent the information described in clause (B) of this
proviso as and when required under Section 5.01(d)(i)(B) or (ii)(B), as
the case may be, the Applicable Facility Fee and Applicable Margin
shall be at Applicable Performance Level 6 for so long as such
information has not been received by the Administrative Agent. Solely
with respect to the Applicable Performance Level determined by
reference to the Public Debt Rating, if at any time the ratings from
Moody's and S&P are in Applicable Performance Levels which are more
than one Applicable Performance Level apart, the Applicable Performance
Level shall be that level which is determined by the average of the two
ratings (and if the average of such ratings falls between two
Applicable Performance Levels, the higher of such two Applicable
Performance Levels will apply). Moreover, for purposes of this
definition if following the Public Debt Rating Date either S&P or
Moody's (or any Substitute Rating Agency) ceases to have in effect a
Public Debt Rating, the Applicable Margin and the Applicable Facility
Fee will be determined by reference to Applicable Performance Level 6.
"Arranger" has the meaning specified in the recital of parties to this
Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender (other than a Designated Bidder) and an Eligible Assignee,
acknowledged and consented to by the Borrower and accepted by the Administrative
Agent, in accordance with Section 8.07 and in substantially the form of Exhibit
C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" has the meaning specified in Section 2.17(c).
"Authorized Financial Officer" means any one of the Vice President and
Treasurer of the Borrower or any other duly authorized corporate officer of the
Borrower who is responsible for and familiar with the financial affairs of the
Borrower.
"B Advance" means an advance by a Lender to the Borrower as part of a B
Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part of
such
10
6
borrowing has been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a B Advance made by
such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Bank" has the meaning specified in the recital of parties to
this Agreement.
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank with respect to
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
11
7
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest at a rate
per annum determined on the basis of the Base Rate, as provided in Section
2.07(a)(i).
"Borrowed Debt" means all indebtedness for borrowed money and
obligations evidenced by bonds, debentures, notes or other similar instruments.
"Borrower's Obligations" has the meaning specified in Section 9.01(a).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Co-Agent" has the meaning specified in the recital of parties to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued thereunder.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section 2.18(a).
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated" refers to the consolidation of the accounts of the
Borrower and its Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation, consistent with those applied
in the preparation of the Consolidated financial statements referred to in
Section 4.01(e).
"Convert", "Conversion" and "Converted" each refers to a conversion of
A Advances of one Type into A Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Corn Refining Business" has the meaning specified in the Form 10.
12
8
"Debt" means (i) indebtedness for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations to pay the deferred purchase price of property or services, (iv)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (v) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iv)
above, (vi) liabilities of the Borrower or any ERISA Affiliate in respect of any
Insufficiency, (vii) withdrawal liability within the meaning of Section 4201 of
ERISA incurred by the Borrower or any ERISA Affiliate to any Multiemployer Plan,
(viii) liabilities incurred by the Borrower or any ERISA Affiliate to the PBGC
upon the termination under Section 4041 or Section 4042 of ERISA of any Plan and
(ix) any increase in the amount of contributions required to be made by the
Borrower and its ERISA Affiliates in each fiscal year of the Borrower to
Multiemployer Plans over the amount of such contributions required to be made on
the date hereof due to the reorganization or termination of any such
Multiemployer Plan within the meaning of Title IV of ERISA.
"Debt to Capitalization Ratio" means, at any time, the amount of
Consolidated Borrowed Debt of the Borrower expressed as a percentage of the sum
of Consolidated Borrowed Debt of the Borrower plus minority stockholders' equity
interests, deferred taxes on income and total stockholders' equity, in each
case, as determined in accordance with GAAP by reference to the Consolidated
balance sheets of the Borrower required to be delivered pursuant to Section
5.01(d)(i)(B) or (ii)(B).
"Designated Bidder" means (a) an Affiliate of a Lender or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business that issues (or the
parent of which issues) commercial paper rated at least "Prime-1" by Moody's or
"A-1" by S&P or a comparable rating from the successor of either of them, that,
in either case, (x) is organized under the laws of the United States or any
State thereof, (y) shall have become a party hereto pursuant to Section 8.07(e),
(f) and (g), and (z) is not otherwise a Lender. Notwithstanding the foregoing,
other than in the case of an Affiliate of a Lender, each Designated Bidder shall
be subject to the prior written consent of the Borrower and the Administrative
Agent, such consent not to be unreasonably withheld or delayed.
"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Bidder) and a Designated Bidder, and accepted by
the Administrative Agent, in substantially the form of Exhibit D hereto.
13
9
"Distribution Agreement" means that certain Distribution Agreement
dated as of December 1, 1997 between the Interim Guarantor and the Borrower
relating to the Spin-off.
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any period, an amount equal to Consolidated net
income (or net loss) of the Borrower plus the sum of (a) interest expense (b)
income tax expense, (c) depreciation expense and (d) amortization expense, in
each case determined in accordance with GAAP by reference to the Consolidated
balance sheets of the Borrower required to be delivered pursuant to Section
5.01(d)(i)(B) or (ii)(B).
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, having total assets of not less
than $5,000,000,000; (ii) a commercial bank having total assets of not less than
$5,000,000,000 (or its equivalent in another currency), and organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development ("OECD") or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, provided
that such bank is acting through a branch or agency located in the United
States; (iii) the central bank of any country which is a member of the OECD;
(iv) such other financial institutions as the Administrative Agent and the
Borrower may agree on from time to time; and (v) an Affiliate of a Lender.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to the environment, health,
safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's or, prior to the Interim Guaranty Release
Date, the Interim
14
10
Guarantor's, controlled group or under common control with such Person, as
the case may be, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Default" means
(a) that either
(i) any Termination Event with respect to a Plan
shall have occurred and be continuing, or
(ii) either the Borrower or any of its ERISA
Affiliates or, prior to the Interim Guaranty Release Date, the
Interim Guarantor or any of its ERISA Affiliates, shall have
been notified by the sponsor of a Multiemployer Plan that such
Person or such ERISA Affiliate, as the case may be, has
incurred Withdrawal Liability to such Multiemployer Plan or
that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and
(b) that at the time of such occurrence or notice the
sum of
(i) the Insufficiency of such Plan for which a
Termination Event has occurred together with the Insufficiency
of any and all other Plans with respect to which a Termination
Event shall have occurred and then exist (or, in the case of a
Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event shall have
occurred and then exist, the liability related thereto), plus
(ii) the Withdrawal Liability to such Multiemployer
Plan, determined as of the notification date referred to in
clause (a)(ii) above, together with the aggregate amount then
outstanding and required to be paid to all other Multiemployer
Plans for which there is then a Withdrawal Liability, plus
(iii) the excess of (A) aggregate annual
contributions of the Borrower and its ERISA Affiliates, or
prior to the Interim Guaranty Release Date, the Interim
Guarantor and its ERISA Affiliates, to all Multiemployer Plans
for the plan years in which such notice of reorganization has
been received over (B) the aggregate annual contributions of
such Person and its ERISA Affiliates to such Multiemployer
Plans for the plan year which includes the date hereof,
15
11
shall equal or exceed $5,000,000.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing or the same B Borrowing, as
the case may be, an interest rate per annum equal to the rate per annum obtained
by dividing (a) the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing (or in the case
of a B Borrowing, equal to $10,000,000) and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. The Eurodollar Rate for the Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference Banks
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an A Advance which bears interest at a
rate per annum determined on the basis of the Eurodollar Rate, as provided in
Section 2.07(a)(ii), or a B Advance which bears interest at a rate per annum
determined on the basis of the Eurodollar Rate, as provided in Section 2.03(a).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for determining
the
16
12
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fixed Rate" means, for the period for each Fixed Rate Advance
comprising part of the same B Borrowing, the fixed interest rate per annum
determined for such Advance, as provided in Section 2.03.
"Fixed Rate Advance" means a B Advance which bears interest at a fixed
rate per annum determined as provided in Section 2.03(a).
"Form 10" means the Registration Statement on Form 10 first filed by
the Borrower with the Securities and Exchange Commission on September 19, 1997,
in the form declared effective on December 4, 1997.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, radon gas and any other chemicals, materials or substances
designated, classified or regulated as being "hazardous" or "toxic," or words of
similar import, under any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Increase Date" has the meaning specified in Section 2.18(a).
17
13
"Increasing Lender" has the meaning specified in Section 2.18(b).
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities within the meaning of Section 4001(a)(18) of
ERISA.
"Interest Coverage Ratio" means for any Measurement Period, the ratio
of Consolidated EBITDA of the Borrower and its Subsidiaries during such
Measurement Period to interest payable on, and amortization of debt discount in
respect of, all Debt during such Measurement Period by the Borrower and its
Subsidiaries.
"Interest Period" means, (a) for each Eurodollar Rate Advance
comprising part of the same A Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or the date of Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below, and (b) for each B Advance which is a
Eurodollar Rate Advance, the period commencing on the date of such B Advance and
ending on the maturity date for repayment of such B Advance as determined
pursuant to Section 2.03(a). The duration of each such Interest Period referred
to in subsection (a) above shall be one, two, three or six months, and if
available to all Lenders, nine or twelve months, in each case as the Borrower
may, upon notice received by the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(w) the duration of any Interest Period which commences before
the Termination Date and would otherwise end after the Termination Date
shall end on the Termination Date (subject to Section 8.04(b));
(x) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same A Borrowing shall
be of the same duration;
(y) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last
18
14
day of such Interest Period shall occur on the next preceding Business
Day; and
(z) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Interim Guarantor" has the meaning specified in the recital
of parties to this Agreement.
"Interim Guaranty Release Date" has the meaning specified in
Section 3.04.
"Lenders" means the Banks, each Assuming Lender that shall
become a party hereto pursuant to Section 2.17 or 2.18 and each
Eligible Assignee that shall become a party hereto pursuant to Section
8.07 and, except when used in reference to an A Advance, an A
Borrowing, an A Note, a Commitment or a term related to any of the
foregoing, each Designated Bidder.
"Lien" shall have the meaning specified in Section 4.01(l).
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means at any time Lenders having at least
51% of the outstanding A Advances at such time, or, if no such
principal amount is then outstanding, Lenders having at least 51% of
the Commitments; provided, that if at any time the Commitments have
been terminated pursuant to Section 6.01 and no A Advances are then
outstanding, "Majority Lenders" will mean Lenders having at least 51%
of outstanding B Advances.
"Margin Stock" has the meaning given that term in Regulation U
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, or prior to the Interim Guaranty Release Date, the
Interim Guarantor and its Subsidiaries, in each case taken as a whole,
(b) the rights and remedies of the Administrative Agent or any Lender
under this Agreement or any Note or (c) the ability of the Borrower or,
prior to the
19
15
Interim Guaranty Release Date, the Interim Guarantor, to
perform its obligations under this Agreement or, in the case of the
Borrower, under any Note.
"Measurement Period" means, as of any date of determination,
the most recently completed four consecutive fiscal quarters of the
Borrower ending on or immediately prior to such date.
"Moody's" means Moody's Investor Services, Inc.
"Multiemployer Plan" means a "multiemployer plan", as defined
in Section 4001(a)(3) of ERISA, to which the Borrower or any of its
ERISA Affiliates, or prior to the Interim Guaranty Release Date, the
Interim Guarantor or any of its ERISA Affiliates, is making or accruing
an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates or, prior to
the Interim Guaranty Release Date, the Interim Guarantor or any of its
ERISA Affiliates, and at least one Person other than such Person and
its ERISA Affiliates or (b) was so maintained and in respect of which
such Person or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a).
"Obligation" means, with respect to any Person, any obligation
of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not
such obligation is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(e). Without limiting the
generality of the foregoing, the Obligations of the Borrower under the
Loan Documents include (a) all principal, interest, charges, expenses,
fees, attorneys' fees and disbursements,
20
16
indemnities and any other amounts payable by the Borrower
under any Loan Document and (b) any amount in respect of any of the
foregoing payable by the Borrower under or in respect of any Loan
Document, that any Lender, in its sole discretion and upon five
Business Days' notice to the Borrower may elect to pay or advance on
behalf the Borrower.
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the better of (a)
the lowest rating of any class of long-term public unsecured senior
debt issued by the Borrower as most recently announced by Moody's and
(b) the lowest rating of the Borrower's long-term public unsecured
senior debt as most recently announced by S&P, as the case may be, or,
if either Moody's or S&P is no longer in existence on such date, a
Substitute Rating Agency, provided, however, that (i) if any rating
established by S&P or Moody's (or any Substitute Rating Agency) shall
be changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change; and (ii) if S&P or Moody's (or any Substitute Rating Agency)
shall change the basis on which ratings are established, each reference
to the Public Debt Rating announced by S&P or Moody's (or any
Substitute Rating Agency), as the case may be, shall refer to the then
equivalent rating by S&P or Moody's (or any Substitute Rating Agency),
as the case may be.
"Public Debt Rating Date" means the first date as of which
Public Date Ratings have been issued by each of Moody's and S&P, or, if
either Moody's or S&P is no longer in existence on such date, a
Substitute Rating Agency.
"Reference Banks" means Citibank, First Chicago and Chase
Manhattan or, in the event that less than two such Lenders furnish
timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances comprising any requested A
Borrowing or B Borrowing, any other Lender which is selected by the
Administrative Agent and which furnishes such information.
21
17
"Register" has the meaning specified in Section 8.07(c).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates, or prior to
the Interim Guaranty Release Date, the Interim Guarantor or any of its
ERISA Affiliates, and no Person other than such Person and its ERISA
Affiliates, or (ii) was so maintained and in respect of which the
Borrower or its ERISA Affiliates or, prior to the Interim Guaranty
Release Date, the Interim Guarantor or its ERISA Affiliates, as the
case may be, could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Spin-off" means the distribution by the Interim Guarantor to
its shareholders of the common stock of the Borrower, as contemplated
by the Form 10.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Substitute Rating Agency" means a nationally recognized
credit rating organization designated by the Borrower and approved by
the Administrative Agent.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) December 17, 2002,
subject to the extension thereof pursuant to Section 2.17, and (b) the
date of termination in whole of the aggregate Commitments pursuant to
Section 2.05 or 6.01, provided, however, that the Termination Date of
any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.17 shall be the
22
18
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Termination Event" means (i) the occurrence of a "reportable
event", as such term is described in Section 4043 of ERISA, with
respect to any Plan (other than a "reportable event" not subject to the
provision for 30-day notice to the PBGC), or an event described in
Section 4062(e) of ERISA, or (ii) the withdrawal of the Borrower or any
of its ERISA Affiliates, or prior to the Interim Guaranty Release Date,
the Interim Guarantor or any of its ERISA Affiliates, from a Multiple
Employer Plan during a plan year in which it was a "substantial
employer", as such term is defined in Section 4001(a)(2) of ERISA, or
the incurrence of liability by any such Person or any ERISA Affiliate
under Section 4064 of ERISA upon the termination of a Multiple Employer
Plan, or (iii) the distribution of a notice of intent to terminate a
Plan pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the
conditions set forth in Section 302(f)(l)(A) and (B) of ERISA to the
creation of a lien upon property or rights to property of such Person
or any ERISA Affiliate for failure to make a required payment to a Plan
are satisfied, or (v) the adoption of an amendment to a Plan requiring
the provision of security to such Plan, pursuant to Section 307 of
ERISA, or (vi) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA, or (vii) any other event or
condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer,
any Plan.
"Unrated" means, as of any date, that either Moody's or S&P on
such date has not announced a rating, or has terminated a prior rating,
for each class of long-term public unsecured senior debt issued by the
Borrower or that the Borrower does not have outstanding any long-term
public unsecured senior debt issued by it.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" shall have the meaning given such term
under Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word
23
19
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount not to exceed at any
time outstanding the amount set opposite such Lender's name on the signature
pages hereof under the caption "Commitments" or, if such Lender has entered into
an Assignment and Acceptance in accordance with Section 8.07, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.05 or
increased pursuant to Section 2.18 (such Lender's "Commitment"), provided that
the aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the B Advances then
outstanding and such deemed use of the aggregate amount of the Commitments shall
be applied to the Lenders ratably according to their respective Commitments to
reduce the amount of Advances available from each Lender (such deemed use of the
aggregate amount of the Commitments being a "B Reduction"). Each A Borrowing
shall be in an aggregate amount not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of A Advances of the
same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10(b),
and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than (A) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed A Borrowing if
the Borrower selects a Eurodollar Rate Advance or (B) 11:00 A.M. (New York City
time) on the date of the proposed A Borrowing (which shall be a Business Day) if
the Borrower selects a Base Rate Advance, by the Borrower to the Administrative
Agent, which shall give to each Lender prompt notice thereof by telex or
telecopier. Each such notice of an A Borrowing
24
20
(a "Notice of A Borrowing") shall be by telex or telecopier, confirmed
immediately in writing, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such A Borrowing, (ii) Type of A
Advances comprising such A Borrowing, (iii) aggregate amount of such A Borrowing
and (iv) in the case of an A Borrowing consisting of Eurodollar Rate Advances,
the initial Interest Period for each such A Advance. In the case of a proposed A
Borrowing comprised of Eurodollar Rate Advances, the Administrative Agent shall
promptly notify each Lender of the applicable interest rate under Section
2.07(a)(ii). Each Lender shall, before 1:00 P.M. (New York City time), (x) on
the date of such A Borrowing if the Borrower selects a Eurodollar Rate Advance
or (y) on the date of such A Borrowing if the Borrower selects a Base Rate
Advance, make available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02, in same day
funds, such Lender's ratable portion of such A Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any A
Borrowing if the obligations of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the related Notice
of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill, on or before the date
specified in such Notice of A Borrowing for such A Borrowing, the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the A Advance to be made by such Lender as part of such A
Borrowing when such A Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any A Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
A Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the
25
21
Administrative Agent on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at the time to the
A Advances comprising such A Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. The Administrative Agent will demand such repayment from
such Lender prior to demanding such repayment from the Borrower. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Lender's A Advance as part of such A Borrowing
for purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees
that the Borrower may make B Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the date hereof until the date
occurring 30 days prior to the Termination Date, in the case of B Advances
consisting of Fixed Rate Advances, or one month prior to the Termination Date,
in the case of B Advances consisting of Eurodollar Rate Advances, in the manner
set forth below; provided that, following the making of each B Borrowing, the
aggregate amount of all Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders (computed without regard to any B
Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.03 by delivering to the Administrative Agent, by telex or telecopier,
confirmed immediately in writing, not later than 10:00 A.M. (New York
City time) (A) at least two Business Days prior to the date of the
proposed B Borrowing if the Borrower selects a Fixed Rate Advance or
(B) at least four Business Days prior to the date of the proposed B
Borrowing if the Borrower selects a Eurodollar Rate Advance, a notice
of a B Borrowing (a "Notice of B Borrowing"), in substantially the form
of Exhibit B-2 hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of each B Advance
to be made as part of such B Borrowing (which maturity date (I) may not
be earlier than the date occurring 1 month after the date of such B
Borrowing or later than the earlier of (x) 6 months after the date of
such B Borrowing if the Borrower selects a Fixed Rate Advance and
(y) the Termination Date or (II) may not be earlier than the date
occurring 30 days after the date of such B Borrowing or later than the
earlier of (x) 180 days after the date of such B Borrowing if the
Borrower selects a Eurodollar Rate Advance and (y) the Termination
Date), the interest payment date
26
22
or dates relating thereto, and any other terms to be
applicable to such B Borrowing (including, without limitation, the
basis to be used by the Lenders in determining the rate or
rates of interest to be offered by them as provided in paragraph (ii)
below). A Notice of B Borrowing shall not specify more than three such
maturity dates or more than one such maturity date for each B Advance.
The Administrative Agent shall in turn promptly notify each Lender of
each request for a B Borrowing received by it from the Borrower by
sending such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more B Advances to the Borrower
as part of such proposed B Borrowing at a Fixed Rate or Rates or a
margin or margins relative to the Eurodollar Rate, as requested by the
Borrower. Each Lender electing to make such an offer shall do so by
notifying the Administrative Agent via telecopier (which shall give
prompt notice thereof to the Borrower), after 9:00 A.M. but before
10:00 A.M. (New York City time) (A) at least one Business Day before
the date of such proposed B Borrowing specified in the Notice of B
Borrowing delivered with respect thereto pursuant to clause (A) of
paragraph (i) above or (B) at least three Business Days before the date
of such proposed B Borrowing specified in the Notice of B Borrowing
delivered with respect thereto pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance which
such Lender would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment), the
Fixed Rate or Rates or a margin or margins relative to the Eurodollar
Rate, as requested by the Borrower, which such Lender would be willing
to accept for such B Advance and such Lender's Applicable Lending
Office with respect to such B Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
of such offer before 9:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Administrative
Agent by the other Lenders. If any Lender shall elect not to make such
an offer, such Lender shall so notify the Administrative Agent, after
9:00 A.M. but before 10:00 A.M. (New York City time) (x) at least one
Business Day before the date of such proposed B Borrowing specified in
the Notice of B Borrowing delivered with respect thereto pursuant to
clause (A) of paragraph (i) above or (y) at least three Business Days
before the date of such proposed B Borrowing specified in the Notice of
B Borrowing delivered with respect thereto pursuant to clause (B) of
paragraph (i) above, and such Lender shall not be obligated to, and
shall not, make any B Advance as part of such B Borrowing; provided
that the failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any B Advance as part of such proposed B
Borrowing.
27
23
(iii) The Borrower shall, in turn, before 11:30 A.M. (New York
City time) (A) at least one Business Day before the date of such
proposed B Borrowing specified in the Notice of B Borrowing delivered
with respect thereto pursuant to clause (A) of paragraph (i) above or
(B) at least three Business Days before the date of such proposed B
Borrowing specified in the Notice of B Borrowing delivered with respect
thereto pursuant to clause (B) of paragraph (i) above, either
(1) cancel such B Borrowing by giving the
Administrative Agent notice to that effect, or
(2) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative Agent
of the amount of each B Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such B
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such B Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by
giving the Administrative Agent notice to that effect.
The acceptance of offers by the Borrower pursuant to clause (2) of this
paragraph (iii) shall be on the basis of ascending rates of interest
contained in the offers made by the Lenders pursuant to paragraph (ii)
above; provided that, in the event that two or more such offers contain
the same rate of interest for a greater aggregate principal amount than
the amount specified in such Notice of B Borrowing less the aggregate
principal amount of all such offers containing lower rates of interest
that have been accepted by the Borrower pursuant to clause (2) of this
paragraph (iii), the amount to be borrowed from such Lenders as part of
such B Borrowing shall be allocated among such Lenders pro rata on the
basis of the maximum amount offered by such Lenders at such rate of
interest in connection with such B Borrowing.
(iv) If the Borrower notifies the Administrative Agent that
such B Borrowing is cancelled pursuant to clause (1) of paragraph (iii)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (2) of paragraph (iii) above,
the Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of
28
24
such B Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by
the Borrower, (B) each Lender that is to make a B Advance as part of
such B Borrowing, of the amount of each B Advance to be made by such
Lender as part of such B Borrowing, and (C) each Lender that is to make
a B Advance as part of such B Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III.
(vi) Each Lender that is to make a B Advance as part of such B
Borrowing shall, before 12:00 noon (New York City time) on the date of
such B Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding subsection
(v) or any later time when such Lender shall have received notice from
the Administrative Agent pursuant to clause (C) of the preceding
subsection (v), make available for the account of its Applicable
Lending Office to the Administrative Agent at its address referred to
in Section 8.02, in same day funds, such Lender's ratable portion of
such B Borrowing. Upon fulfillment of the applicable conditions set
forth in Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds available to
the Borrower at the Administrative Agent's aforesaid address. Promptly
after each B Borrowing, the Administrative Agent will notify each
Lender of the amount of the B Borrowing, the consequent B Reduction and
the dates upon which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
Following the making of each B Borrowing, the Borrower shall be in compliance
with the limitations set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay pursuant to subsection (d) below, and reborrow under this Section 2.03,
provided that a B Borrowing shall not be made within four Business Days of the
date of any other B Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender which has made, or holds the right of repayment of, a
B Advance on the maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above and provided in the
B Note evidencing such B Advance) the then unpaid principal amount of such B
Advance. The Borrower shall have no right to prepay any principal amount of any
B Advance unless, and then only on
29
25
the terms, specified by the Borrower for such B Advance in the related Notice of
B Borrowing delivered pursuant to subsection (a)(i) above.
(e) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of interest
for such B Advance specified by the Lender making such B Advance in its notice
with respect thereto delivered pursuant to subsection (a)(ii) above, payable on
the interest payment date or dates specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the B Note evidencing such B Advance.
(f) The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of a B Borrowing shall be evidenced by a
separate B Note of the Borrower payable to the order of the Lender making such B
Advance.
(g) Upon the request of any Lender that has made an offer to
make a B Advance as part of the most recent B Borrowing, the Administrative
Agent shall, as soon as practicable, provide telephonic notification to such
Lender of (A) the highest rate offered for the B Advance accepted by the
Borrower as part of such B Borrowing, and (B) the lowest rate offered for the B
Advance accepted by the Borrower as part of such B Borrowing.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay each Lender (other than a Designated Bidder) a facility fee on the aggregate
amount of such Lender's Commitment (whether used or unused and without giving
effect to any B Reduction), from the date hereof until the Termination Date,
payable in arrears on the last day of each March, June, September and December,
during the term of such Lender's Commitment, commencing on March 31, 1998, and
on the Termination Date, at a rate for each day during such period equal to the
Applicable Facility Fee for such day.
(b) Agency Fees. The Borrower agrees to pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed upon by the Borrower and the Administrative Agent.
SECTION 2.05. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part, in each
case permanently, the unused portions of the respective Commitments of the
Lenders, provided that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount which is less than the aggregate amount of the
A Advances and the B Advances then outstanding and provided further that each
partial reduction shall be in
30
26
the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.06. Repayment of A Advances. The Borrower shall
repay to each Lender on the Termination Date the aggregate principal amount of
the A Advances owing to such Lender on such date.
SECTION 2.07. Interest on A Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of each A Advance
made by each Lender from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum
of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable monthly in
arrears on the last day of each month during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of
(x) the Eurodollar Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Borrower shall pay
interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above, and (ii) the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
31
27
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative Agent for
the purpose of determining any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.07(a)(i) or (ii), and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.07(a)(ii).
(c) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such A Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such A Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Majority Lenders for making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
32
28
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000 such Advances shall
automatically Convert into Base Rate Advances, and on and after such date the
right of the Borrower to Convert such A Advances into Eurodollar Rate Advances
shall terminate.
(g) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of A Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.08, 2.12
and 2.13, Convert all A Advances of one Type comprising the same Borrowing into
A Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances. Each such notice of
a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the Interest Period
for each such A Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.10. Prepayments of A Advances. (a) The Borrower
shall have no right to prepay any principal amount of any A Advance other than
as provided in (b) below.
33
29
(b) The Borrower may (i) upon at least three days after the
date of Borrowing and upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the date of the proposed prepayment
(which date shall be a Business Day), stating the proposed date and aggregate
principal amount of the prepayment in the case of Base Rate Advances or (ii)
upon at least two Business Days' notice given to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment in
the case of Eurodollar Rate Advances, and if such notice is given the Borrower
shall, prepay the outstanding principal amounts of the A Advances comprising
part of the same A Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid and, in
the case of Eurodollar Rate Advances, any additional losses, costs or expenses,
if any, required to be paid by the Borrower pursuant to Section 8.04(b);
provided, however, that each partial prepayment shall be in an aggregate
principal amount of not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
SECTION 2.11. Increased Costs and Increased Capital. (a) If,
due to either (i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided that, before making any such demand,
each Lender agrees to use its best efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased costs and would not be disadvantageous to
such Lender. A certificate as to the amount of such increased cost, submitted to
the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If any Lender (other than a Designated Bidder) determines
that compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall immediately pay to the Administrative Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
34
30
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Administrative Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
(c) Within 20 days following the date of a demand by a Lender
pursuant to Section 2.11(a) or (b), as the case may be, such Lender and the
Borrower shall enter into negotiations in good faith with a view to agreeing to
an adjustment to the amounts payable by the Borrower sufficient to compensate
such Lender as contemplated in such Section. If, at the expiration of 45 days
from the giving of such demand, such Lender and the Borrower shall not have
agreed to any such adjustment, the Borrower shall within five days elect (and
shall notify such Lender and the Administrative Agent of such election) to
either:
(i) pay such Lender, from time to time commencing on the date
of such demand by such Lender and as specified by such Lender, the
additional amounts so demanded,
(ii) terminate in whole such Lender's Commitment on a date
specified in the notice sent by the Borrower, and such Lender's
Commitment shall terminate on such date, or
(iii) require that such Lender assign to the Borrower's
designated assignee or assignees in accordance with Section 8.07 all
Advances then owing to such Lender and all rights and obligations
provided that (A) each such assignment shall be either an assignment of
all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such
assignment or assignments which together cover all of the rights and
obligations of the assigning Lender under this Agreement, (B) no Lender
shall be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 2.11(c) unless and until such
Lender shall have received one or more payments from either the
Borrower or one or more assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of
payment of such principal amount, all commitment fees and other fees
payable to such Lender and all other amounts payable to such Lender
under this Agreement (including, but not limited to, any increased
costs or other additional amounts as so demanded (computed in
accordance with this Section 2.11), and any Taxes, incurred by such
Lender prior to the effective date of such assignment and amounts
payable under Section 8.04(a)), (C) each such assignment shall be made
pursuant to an Assignment and Acceptance and (D) in connection with
each such assignment to
35
31
any Person that immediately prior to such assignment was not a Lender,
the Borrower shall pay to the Administrative Agent the processing and
recordation fee of $3000 referred to in Section 8.07;
provided, however, that a termination under clause (ii) above shall not be
effective, and an assignment under clause (iii) above shall not be effective,
if, after giving effect thereto, the aggregate amount of the Commitments so
terminated and assigned during the term of this Agreement would exceed 20% of
the amount of the Commitments as of the date hereof or such terminations and
assignments would have become effective for more than three Lenders during the
term of this Agreement, and provided further that no such termination may be
made, and no such assignment may be required, if an Event of Default, or event
which with the giving of notice or lapse of time or both would be an Event of
Default, has occurred and is continuing either on the date the Borrower notifies
such Lender and the Administrative Agent of such termination or requested
assignment, or on the date on which such termination or assignment is scheduled
to become effective. Upon termination of a Lender's Commitment under Section
2.11(c)(ii), the Borrower shall on the date such termination becomes effective
pay, prepay or cause to be prepaid the aggregate principal amount of the
Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount, all commitment fees and other fees
payable to such Lender and all other amounts payable to such Lender under this
Agreement (including, but not limited to, any increased costs or other
additional amounts as so demanded (computed in accordance with this Section
2.11), and any Taxes, incurred by such Lender prior to the effective date of
such assignment and amounts payable under Section 8.04(a)). Upon such payments
and prepayments, the obligations of such Lender hereunder, by the provisions
hereof, shall be released and discharged. Such Lender's rights under Sections
2.11 and 8.04(b), and its obligations under Section 7.05, shall survive such
release and discharge as to matters occurring prior to the date of such
termination.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
the Lenders to make, or to Convert A Advances into, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Advances of
all Lenders then outstanding, together with interest accrued thereon, unless the
Borrower, within five Business Days of notice from the Administrative Agent,
Converts all
36
32
Eurodollar Rate Advances of all Lenders then outstanding into Base Rate Advances
in accordance with Section 2.09.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder not later than 11:00 A.M. (New York City time) on the day
when due in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.03, 2.04(b), 2.11, 2.14 or 8.04(b)) to the appropriate Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18
or an extension of the Termination Date pursuant to Section 2.17, and upon the
Administrative Agent's receipt of such Lender's Assumption Agreement and
recording of the information contained therein in the Register, from and after
the applicable Increase Date or Extension Date, as the case may be, the
Administrative Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder, to charge
from time to time against any or all of the Borrower's accounts with such Lender
any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Fixed Rate,
the Eurodollar Rate or the Federal Funds Rate and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Administrative Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding
37
33
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided,
however, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
or, prior to the Interim Guaranty Release Date, the Interim Guarantor, hereunder
or under the Notes shall be made, in accordance with Section 2.13, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent,
taxes imposed on its income, and franchise taxes imposed on it in lieu of income
taxes, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its income
and franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If either the Borrower
or, prior to the Interim Guaranty Release Date, the Interim Guarantor, shall be
required by law to deduct any Taxes from or in respect of any sum payable by
such party hereunder or under any Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower or, prior to the Interim
Guaranty Release Date, the Interim Guarantor, as the case may be, shall make
such deductions and (iii) the Borrower or, prior to the Interim Guaranty Release
Date, the Interim Guarantor, as the case may be, shall pay the full
38
34
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each of the Borrower and, prior to the
Interim Guaranty Release Date, the Interim Guarantor, agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower and, prior to the Interim Guaranty Release
Date, the Interim Guarantor, will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by
the Borrower or the Interim Guarantor, as the case may be, such Person will
furnish to the Administrative Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
or the Interim Guarantor, as the case may be, through an account or branch
outside the United States or on behalf of the Borrower or the Interim Guarantor,
as the case may be, by a payor that is not a United States person, if the
Borrower or the Interim Guarantor, as the case may be, determines that no Taxes
are payable in respect thereof, the Borrower or the Interim Guarantor, as the
case may be, shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Administrative
Agent, in either case stating that such payment is exempt from or not subject to
Taxes. For purposes of this subsection (d), the terms "United States" and
"United States person" shall have the meaning specified in Section 7701 of the
Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank, and each such Lender that
is not a party hereto on the date hereof shall on or prior to the date on which
such Lender becomes a Lender pursuant to Sections 2.17, 2.18 or 8.07 (as the
case may be), and from time to time thereafter if requested in writing by the
Borrower or the Administrative Agent (but only so long
39
35
thereafter as such Lender remains lawfully able to do so), provide the
Administrative Agent and the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments of interest pursuant
to this Agreement or the Notes. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, in the case of each Bank, or in
excess of the rate applicable to the Lender assignor on the date of the
Assignment and Acceptance pursuant to which it became a Lender or as of the date
such party becomes a Lender pursuant to Sections 2.17 and 2.18, in the case of
each other Lender, withholding tax at such rate shall be considered excluded
from Taxes as defined in Section 2.14(a). If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to
the Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under the first sentence of subsection (e) above), such Lender
shall not be entitled to indemnification under subsection (a) with respect to
Taxes imposed by the United States; provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower or the Interim Guarantor, as the case may be, shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) Without prejudice to the survival of any other agreement
of the Borrower and the Interim Guarantor hereunder, the agreements and
obligations of the Borrower and the Interim Guarantor contained in this Section
2.14 shall survive the payment in full of principal and interest hereunder and
under the Notes; provided that the Obligations of the Interim Guarantor shall be
limited to payments made by the Interim Guarantor under the Interim Guaranty.
40
36
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances owing to it (other
than pursuant to Section 2.11, 2.14 or 8.04(b)) in excess of its ratable share
of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the A Advances made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds) for
general corporate purposes, including commercial paper backstop and including
payments or dividends to the Interim Guarantor as described in the Form 10.
SECTION 2.17. Extension of Termination Date. (a) At least 30
days but not more than 60 days prior to any Anniversary Date, the Borrower, by
written notice to the Administrative Agent, may request an extension of the
Termination Date in effect at such time by one calendar year from the then
scheduled Termination Date. The Administrative Agent shall promptly notify each
Lender of such request, and each Lender shall in turn, in its sole discretion,
not later than 15 days after the date of such extension request, notify the
Borrower and the Administrative Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify the Administrative
Agent and the Borrower in writing of its consent to any such request for
extension of the Termination Date within 15 days after the date of such
extension request, such Lender shall be deemed to be a Non-Consenting Lender
with respect to such request. The Administrative Agent shall notify the Borrower
not later than 15 days prior to such Anniversary Date of the decision of the
Lenders regarding the Borrower's request for an extension of the Termination
Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.17, the Termination
Date shall, effective as at such next Anniversary Date (the "Extension Date"),
be extended for one calendar
41
37
year from the then scheduled Termination Date; provided that on each Extension
Date, no Event of Default, or event that with the giving of notice or passage of
time or both would constitute an Event of Default, shall have occurred and be
continuing, or shall occur as a consequence thereof. If Lenders holding at least
a majority in interest of the aggregate Commitments at such time consent in
writing to any such request in accordance with subsection (a) of this Section
2.17, the Termination Date in effect at such time shall, effective as at the
applicable Extension Date, be extended as to those Lenders that so have
consented (each a "Consenting Lender") but shall not be extended as to any other
Lender (each a "Non-Consenting Lender"). To the extent that the Termination Date
is not extended as to any Lender pursuant to this Section 2.17 and the
Commitment of such Lender is not assumed in accordance with subsection (c) of
this Section 2.17 on or prior to the applicable Extension Date, the Commitment
of such Non-Consenting Lender shall automatically terminate in whole on such
unextended Termination Date without any further notice or other action by the
Borrower, such Lender or any other Person; provided that such Non-Consenting
Lender's rights under Sections 2.11, 2.14, 8.04 and 8.09, and its obligations
under Section 7.05, shall survive the Termination Date for such Lender as to
matters occurring prior to such date. It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the
Borrower for any requested extension of the Termination Date.
(c) If Lenders holding at least 51% of the aggregate
Commitments at any time consent to any such request pursuant to subsection (a)
of this Section 2.17, the Borrower may arrange for one or more Consenting
Lenders or, to the extent that the Consenting Lenders decline to assume any
Non-Consenting Lender's Commitment, other Eligible Assignees (each such Eligible
Assignee that accepts an offer to assume a Non-Consenting Lender's Commitment as
of the applicable Extension Date and each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.18(c) being an "Assuming Lender") to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; provided, however, that if the Borrower makes an offer to any Consenting
Lender to assume any Non-Consenting Lender's Commitment, it shall make such
offer to all Consenting Lenders on a pro rata basis based on their respective
Commitments and such Non-Consenting Lender's Commitment shall be allocated among
those Consenting Lenders which accept such offer on a pro rata basis based on
their respective Commitments, provided further however, that the amount of the
Commitment of any such Assuming Lender as a result of such substitution shall in
no event be less than $10,000,000 unless the amount of the Commitment of such
Non-Consenting Lender is less than $10,000,000, in which case such Assuming
Lender shall assume all of such lesser amount; and provided further that:
42
38
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender (A) the aggregate principal amount
of, and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such Non-Consenting
Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14, 8.04 and 8.09, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Administrative Agent an
assumption agreement, in form and substance satisfactory to the Borrower and the
Administrative Agent (an "Assumption Agreement"), duly executed by such Assuming
Lender, such Non-Consenting Lender, the Borrower and the Administrative Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Administrative Agent as to the increase in
the amount of its Commitment, (C) each Non-Consenting Lender being replaced
pursuant to this Section 2.17 shall have delivered to the Administrative Agent
any Note or Notes held by such Non-Consenting Lender and (D) the Borrower shall
have delivered to the Administrative Agent a new A Note payable to the order of
each Assuming Lender in a principal amount equal to the amount of Commitment
assumed by such Assuming Lender. Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension
Date, will be substituted for such Non-Consenting Lender under this Agreement
and shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of the other Lenders, and the obligations of
each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.
(d) If all of the Lenders (after giving effect to any
assignments pursuant to subsection (b) of this Section 2.17) consent in writing
to a requested extension (whether by execution or delivery of an Assumption
Agreement or otherwise)
43
39
not later than one Business Day prior to such Extension Date, the Administrative
Agent shall so notify the Borrower, and, so long as no Event of Default, or
event that with the giving of notice or passage of time or both would constitute
an Event of Default, shall have occurred and be continuing as of such Extension
Date, or shall occur as a consequence thereof, the Termination Date then in
effect shall be extended for the additional one year period described in
subsection (a) of this Section 2.17, and all references in this Agreement, and
in the Notes, if any, to the "Termination Date" shall, with respect to each
Consenting Lender and each Assuming Lender for such Extension Date, refer to the
Termination Date as so extended. Promptly following each Extension Date, the
Administrative Agent shall notify the Lenders (including, without limitation,
each Assuming Lender) of the extension of the scheduled Termination Date in
effect immediately prior thereto and shall thereupon record in the Register the
relevant information with respect to each such Consenting Lender and each such
Assuming Lender.
SECTION 2.18. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time after the Interim Guaranty Release Date or upon the
consent of the Interim Guarantor prior thereto, but in any event not more than
once in any calendar year prior to the Termination Date and provided that the
Borrower has not elected to reduce the Commitments during such calendar year
pursuant to Section 2.05, by notice to the Administrative Agent, request that
the aggregate amount of the Commitments be increased by an amount of $50,000,000
or an integral multiple of $5,000,000 in excess thereof (each a "Commitment
Increase") to be effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "Increase Date") as specified in
the related notice to the Administrative Agent; provided, however, that (i) in
no event shall the aggregate amount of the Commitments at any time exceed
$500,000,000, (ii) on the date of any request by the Borrower for a Commitment
Increase and at all times thereafter to and including the related Increase Date,
the Applicable Performance Level shall be at level 4 or better and (iii) no
Event of Default, or event that with the giving of notice or passage of time or
both would constitute an Event of Default, shall have occurred and be continuing
as of the date of such request or as of the applicable Increase Date, or shall
occur as a result of such Commitment Increase.
(b) The Administrative Agent shall promptly notify the Lenders
of a request by the Borrower for a Commitment Increase, which notice shall
include (i) the proposed amount of such requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in such requested Commitment Increase (each an
"Increasing Lender") shall give written notice to the Administrative Agent on or
prior to the Commitment Date of the amount by which it is willing to increase
its Commitment. If the Lenders notify the Administrative Agent that
44
40
they are willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of the requested Commitment Increase,
the requested Commitment Increase shall be allocated among the Lenders willing
to participate therein based on a ratio of each existing Lender's proposed
Commitment increase, if any, to the aggregate of all of the existing Lenders'
proposed Commitment increases.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to
participate in any requested Commitment Increase on any such Commitment Date is
less than the requested Commitment Increase, then the Borrower may extend offers
to one or more Eligible Assignees to participate in any portion of the requested
Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in accordance with
Section 2.18(c) as an Assuming Lender shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be so increased by such amount (or
by the amount allocated to such Lender pursuant to the last sentence of Section
2.18(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) (A) certified copies of an Authorized Financial Officer of
the Borrower and, prior to the Interim Guaranty Release Date, the
Interim Guarantor, approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of
counsel for the Borrower and, if applicable, the Interim Guarantor
(which may be in-house counsel), in substantially the form of Exhibit
F-1 hereto;
(ii) an Assumption Agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the
Administrative Agent, duly executed by such Eligible Assignee, the
Administrative Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the Administrative Agent
shall notify the
45
41
Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing (which shall be an A Borrowing) is subject to the conditions precedent
that (a) the Administrative Agent shall have received on or before the day of
such initial Borrowing the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes to the order of the Lenders, respectively;
(ii) Certified copies of the resolutions of the Board of
Directors of each of the Borrower and the Interim Guarantor approving
the Spin-off and related transactions contemplated by the Form 10 and
duly authorizing each of the Borrower and the Interim Guarantor to
execute and deliver, and perform its obligations under, this Agreement
and the Notes and to make Borrowings or guaranty Obligations, as the
case may be, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement and the Notes;
(iii) A certificate of the Secretary or an Assistant Secretary
of each of the Borrower and the Interim Guarantor certifying the names
and true signatures of the officers of the Borrower or the Interim
Guarantor, as the case may be, authorized to sign this Agreement, the
Notes and the other documents to be delivered hereunder;
(iv) A favorable opinion of Marcia E. Doane, Vice President
and General Counsel for the Borrower, substantially in the form of
Exhibit F-1 hereto and as to such other matters as any Lender through
the Administrative Agent may reasonably request;
46
42
(v) A favorable opinion of Sidley & Austin, New York counsel
for the Borrower, substantially in the form of Exhibit F-2 hereto and
as to such other matters as any Lender through the Administrative Agent
may reasonably request;
(vi) A favorable opinion of Hanes A. Heller, Vice President
and General Counsel for the Interim Guarantor, substantially in the
form of Exhibit F-3 hereto and as to such other matters as any Lender
through the Administrative Agent may reasonably request, provided that
such Vice President and General Counsel of the Interim Guarantor is
qualified under New York State law;
(vii) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, substantially in the form of Exhibit G
hereto;
and (b) the Borrower shall have paid all accrued fees and expenses of the
Administrative Agent and the Arranger (including the accrued fees and expenses
of counsel to Administrative Agent and the Arranger then due and payable).
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing (a) the following
statements shall be true (and the Administrative Agent shall have received for
the account of such Lender a certificate signed by an Authorized Financial
Officer of the Borrower, dated the date of such Borrowing, stating that):
(i) The representations and warranties contained in Article IV
(excluding, except in the case of the initial Borrowing, those
contained in Section 4.01(e)(ii) and Section 4.02(e)(ii)) are correct
on and as of the date of such A Borrowing, before and after giving
effect to such A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; provided that after
the Interim Guaranty Release Date, this paragraph (i) shall not apply
to any representation or warranty of the Interim Guarantor, and
(ii) No event has occurred and is continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender (other than a Designated Bidder) through the
Administrative Agent may reasonably request.
47
43
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance is subject
to the conditions precedent that (a) at least (A) two Business Days before the
date of such B Borrowing if the Borrower selects a Fixed Rate Advance or (B) at
least four Business Days before the date of such B Borrowing if the Borrower
selects a Eurodollar Rate Advance, the Administrative Agent shall have received
the written confirmatory Notice of B Borrowing with respect thereto, (b) on or
before the date of such B Borrowing but prior to such B Borrowing, the
Administrative Agent shall have received a B Note payable to the order of such
Lender for each of the one or more B Advances to be made by such Lender as part
of such B Borrowing, in a principal amount equal to the principal amount of the
B Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such B Advance in accordance with Section 2.03, (c) on the date of such B
Borrowing, the following statements shall be true (and each of the giving of the
applicable Notice of B Borrowing and the acceptance by the Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such B Borrowing such statements are true):
(i) The representations and warranties contained in Article IV
(excluding those contained in Section 4.01(e)(ii) and Section
4.02(e)(ii) thereof) are correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date; provided that after the Interim Guaranty Release Date, this
paragraph (i) shall not apply to any representation or warranty of the
Interim Guarantor,
(ii) No event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both, and
(iii) No event has occurred and no circumstances exist as a
result of which information concerning the Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in light of the circumstances under
which they were made, not misleading;
48
44
and (d) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.04. Conditions Precedent to Release of Interim
Guaranty. The Interim Guarantor's Obligations under this Agreement will remain
in full force and effect until the date (the "Interim Guaranty Release Date")
that the Spin-off shall have been consummated in accordance with the Form 10,
and the Interim Guarantor shall have transferred all assets constituting the
Corn Refining Business to the Borrower except for those assets to be transferred
at a later time as contemplated by the Distribution Agreement and except to the
extent that failure to transfer any asset or comply with any statement in the
Form 10 would not, individually or in the aggregate, have a Material Adverse
Effect. Immediately following completion of the Spin-off, the Interim Guarantor
shall provide written notice thereof to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) any law or
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
49
45
(e) (i) The pro forma combined balance sheets of the Borrower
and its Subsidiaries as at September 30, 1997 and the related pro forma
combined statements of income and retained earnings of the Borrower and
its Subsidiaries for the nine months then ended reflecting the
historical actions of the Corn Refining Business as set forth in Item
15 of the Form 10, copies of which have been furnished to each Lender,
fairly present the financial condition of the Borrower and its
Subsidiaries as at such date and the results of the operations of the
Borrower and its Subsidiaries for the period ended on such date, in
each case as described in the Form 10, all in accordance with generally
accepted accounting principles consistently applied. The historical
actions of the Corn Refining Business, including the Interim
Guarantor's accounting policies, are attributable to the Borrower. The
financial results in these financial statements are not necessarily
indicative of the results that would have occurred if the Borrower had
been an independent public company during the periods presented. The
Borrower has previously delivered to the Administrative Agent copies of
the Borrower's pro forma combined balance sheets and the related
combined statements of income and retained earnings for the nine months
ended September 30, 1997 as reflected in the Form 10.
(ii) Since September 30, 1997 there has been no material
adverse change in such financial condition or operations or the
Borrower's prospects except as reflected in the Form 10.
(f) There is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which may materially adversely
affect the financial condition or operations of the Borrower or the
Borrower and its Subsidiaries, taken as a whole, or which purports to
affect the legality, validity, binding effect or enforceability of this
Agreement or any Note.
(g) No Termination Event has occurred or, to the knowledge of
the Borrower, is reasonably expected to occur with respect to any Plan
that has resulted or, to the knowledge of the Borrower, is reasonably
likely to result in a liability of the Borrower that exceeds
$5,000,000.
(h) Neither the Borrower nor any ERISA Affiliate of the
Borrower has incurred or, to the knowledge of the Borrower, is
reasonably expected to incur any Withdrawal Liability exceeding
$5,000,000 to any Multiemployer Plan.
(i) Neither the Borrower nor any ERISA Affiliate of the
Borrower has been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been terminated,
within the meaning of Title IV of
50
46
ERISA, and, to the knowledge of the Borrower, no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(j) No single lien, security interest or other charge or
encumbrance (including liens or retained security titles of conditional
vendors) of any nature whatsoever on any properties of the Borrower or
any of its Subsidiaries (a "Lien") as of the date hereof secured any
Debt in excess of $25,000,000 and that the aggregate of such Liens did
not secure any Debt in excess of $100,000,000.
(k) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis)
which are subject to the provisions of Sections 5.02(a) or 5.02(e) or
subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender or any Affiliate of any Lender
relating to Debt of the Borrower and its Subsidiaries which is
outstanding in a principal amount of at least $25,000,000 will be
Margin Stock.
(l) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or a "promoter" or
"Principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(m) Except as publicly disclosed prior to the date of this
Agreement, the operations and properties of the Borrower and each of
its Subsidiaries do not violate any Environmental Laws in a manner that
will cause a Material Adverse Effect.
SECTION 4.02. Representations and Warranties of the Interim
Guarantor. The Interim Guarantor, until the Interim Guaranty Release Date,
represents and warrants as follows:
(a) The Interim Guarantor and each of its Subsidiaries is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Interim
Guarantor of this Agreement, and the consummation of the transactions
contemplated hereby, are within the Interim Guarantor's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Interim
51
47
Guarantor's charter or by-laws or (ii) any law or contractual
restriction binding on or affecting the Interim Guarantor.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Interim Guarantor of this Agreement.
(d) This Agreement is the legal, valid and binding obligation
of the Interim Guarantor enforceable against the Interim Guarantor in
accordance with its terms.
(e) (i) The Consolidated balance sheets of the Interim
Guarantor and its Subsidiaries as at December 31, 1996 and the related
Consolidated statements of income and retained earnings of the Interim
Guarantor and its Subsidiaries for the fiscal year then ended, fairly
present the financial condition of the Interim Guarantor and its
Subsidiaries as at such date and the results of the operations of the
Interim Guarantor and its Subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied. The Interim Guarantor has previously delivered to
the Administrative Agent (who will send a copy to each Lender) copies
of the Interim Guarantor's report on Form 10-K for the fiscal year
ended December 31, 1996.
(ii) Since December 31, 1996 there has been no material
adverse change in such financial condition or operations or the Interim
Guarantor's prospects except as publicly disclosed prior to this
Agreement.
(f) There is no pending or threatened action or proceeding
affecting the Interim Guarantor or any of its Subsidiaries before any
court, governmental agency or arbitrator, which may materially
adversely affect the financial condition or operations of the Interim
Guarantor or the Interim Guarantor and its Subsidiaries, taken as a
whole, or which purports to affect the legality, validity, binding
effect or enforceability of this Agreement.
(g) No Termination Event has occurred or, to the knowledge of
the Interim Guarantor, is reasonably expected to occur with respect to
any Plan that has resulted or, to the knowledge of the Interim
Guarantor, is reasonably likely to result in a liability of the Interim
Guarantor that exceeds $10,000,000.
(h) Neither the Interim Guarantor nor any ERISA Affiliate of
the Interim Guarantor has incurred or, to the knowledge of the Interim
Guarantor, is reasonably expected to incur any Withdrawal Liability
exceeding $5,000,000 to any Multiemployer Plan.
52
48
(i) Neither the Interim Guarantor nor any ERISA Affiliate of
the Interim Guarantor has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and, to
the knowledge of the Interim Guarantor, no Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(j) No single lien, security interest or other charge or
encumbrance (including liens or retained security titles of conditional
vendors) of any nature whatsoever on any properties of the Interim
Guarantor or any of its Subsidiaries (a "Lien") as of the date hereof
secured any Debt in excess of $50,000,000 and that the aggregate of
such Liens did not secure any Debt in excess of $200,000,000.
(k) Not more than 25 percent of the value of the assets
(either of the Interim Guarantor only or of the Interim Guarantor and
its Subsidiaries on a consolidated basis) which are subject to the
provisions of Sections 5.02(a) or 5.02(e) or subject to any restriction
contained in any agreement or instrument between the Interim Guarantor
and any Lender or any Affiliate of any Lender relating to Debt of the
Interim Guarantor and its Subsidiaries which is outstanding in a
principal amount of at least $50,000,000 will be Margin Stock.
(l) Neither the Interim Guarantor nor any of its Subsidiaries
is an "investment company," or an "affiliated person" of, or a
"promoter" or "Principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended.
(m) Except as publicly disclosed prior to the date of this
Agreement, the operations and properties of the Interim Guarantor and
each of its Subsidiaries do not violate any Environmental Laws in a
manner that will cause a Material Adverse Effect.
53
49
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower, with respect to itself, and, prior to the Interim Guaranty Release
Date, the Interim Guarantor, with respect to itself, unless the Majority Lenders
shall otherwise consent in writing, will, subject to Section 8.13, each:
(a) Compliance with Laws, Payment of Taxes, Etc. Comply, and
cause each of its Subsidiaries to comply, in all material respects with
all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA, and paying before
the same become delinquent (i) all taxes, assessments and governmental
charges imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property except to
the extent otherwise permitted under Section 5.02(a) or to the extent
contested in good faith, and to comply, and cause each of its
Subsidiaries to comply, with all applicable Environmental Laws in a
manner so that the violation of such laws does not have a Material
Adverse Effect on such Person.
(b) Maintenance of Books and Records. Maintain proper
Consolidated books of record and account, in which full and correct
entries shall be made of all financial transactions and the
Consolidated assets and business of such Person and its Subsidiaries in
accordance with generally accepted accounting principles consistently
applied.
(c) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises,
except to the extent otherwise permitted under Section 5.02(e)
provided, however, that each such Person and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and may wind up, liquidate or dissolve any of their respective inactive
Subsidiaries, and provided further, that neither such Person nor any of
its Subsidiaries shall be required to preserve any right or franchise
if the Board of Directors of such Person or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of such Person or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to such Person, such Subsidiary or the Lenders.
54
50
(d) Reporting Requirements. Furnish to the Administrative
Agent (who promptly will send a copy to each Lender); provided,
however, that the Interim Guarantor shall not be required to comply
with this Section 5.02(d) unless the Interim Guaranty Release Date
shall not have occurred prior to January 1, 1998:
(i) (A) Prior to the Interim Guaranty Release Date,
as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of
the Interim Guarantor, the Consolidated balance sheet of the
Interim Guarantor and its Subsidiaries as of the end of such
quarter and the Consolidated statement of income and retained
earnings of the Interim Guarantor and its Subsidiaries for the
period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified in its
customary manner by an Authorized Financial Officer;
(B) From and after the Interim Guaranty
Release Date, as soon as available and in any event
within 45 days after the end of each of the first
three quarters of each fiscal year of the Borrower,
the Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and
the Consolidated statement of income and retained
earnings of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal
year and ending with the end of such quarter,
certified in its customary manner by an Authorized
Financial Officer, and
(C) At the time of delivery of the financial
statements referred to in clause (A) or (B) above,
for each quarter in which an Advance shall at any
time be outstanding, a certificate signed by an
Authorized Financial Officer of the Borrower or, if
applicable, the Interim Guarantor, stating that no
event has occurred and is continuing which
constitutes an Event of Default or would constitute
an Event of Default but for the requirement that
notice be given or time elapse or both; and
(ii) (A) Prior to the Interim Guaranty Release Date,
as soon as available and in any event within 90 days after the
end of each fiscal year of the Interim Guarantor, a copy of
the annual report for such year for the Interim Guarantor and
its Subsidiaries, containing financial statements for such
year certified in a manner acceptable to the Majority Lenders
by KPMG Peat Marwick & Co., LLP or other independent public
accountants
55
51
acceptable to the Majority Lenders, such acceptance
not to be unreasonably withheld,
(B) From and after the Interim Guaranty
Release Date, as soon as available and in any event
within 90 days after the end of each fiscal year of
the Borrower, a copy of the annual report for such
year for the Borrower and its Subsidiaries,
containing financial statements for such year
certified in a manner acceptable to the Majority
Lenders by KPMG Peat Marwick & Co., LLP or other
independent public accountants acceptable to the
Majority Lenders, such acceptance not to be
unreasonably withheld, and
(C) At the time of delivery of the financial
statements referred to in clause (A) or (B) above, a
certificate signed by an Authorized Financial Officer
of the Borrower or, if applicable, the Interim
Guarantor, stating that no event has occurred and is
continuing which constitutes an Event of Default or
would constitute an Event of Default but for the
requirement that notice be given or time elapse or
both; and
(iii) as soon as possible and in any event within
five days after the occurrence of each Event of Default and
each event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default, continuing on
the date of such statement, a statement of an Authorized
Financial Officer setting forth details of such Event of
Default or event and the action which the Borrower has taken
and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports which the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, sends to
any of its security holders, and copies of all reports and
registration statements which such Person or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) as soon as the Borrower knows, and in any event
immediately upon the occurrence, of a change in a Public Debt
Rating, a statement of an Authorized Financial Officer setting
forth the new Public Debt Rating and the date of such change
in the Public Debt Rating;
(vi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or
56
52
arbitrator affecting the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, or any
of its Subsidiaries of the type described in Section 4.01(f);
(vii) as soon as possible and in any event (A) within
15 days after the Borrower or, prior to the Interim Guaranty
Release Date, the Interim Guarantor, or any ERISA Affiliate
knows or has reason to know that any Termination Event
described in clause (i) of the definition of Termination Event
with respect to any Plan of the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, or any
ERISA Affiliate has occurred, and (B) within 10 days after the
Borrower or, prior to the Interim Guaranty Release Date, the
Interim Guarantor,or any ERISA Affiliate knows or has reason
to know that any other Termination Event with respect to any
Plan of the Borrower, or, prior to the Interim Guaranty
Release Date, the Interim Guarantor, or any ERISA Affiliate
has occurred, a statement of an Authorized Financial Officer
describing such Termination Event and the action, if any,
which the Borrower or, prior to the Interim Guaranty Release
Date, the Interim Guarantor, or such ERISA Affiliate proposes
to take with respect thereto;
(viii) promptly and in any event within five Business
Days after receipt thereof by the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, or any
ERISA Affiliate, copies of each notice received by the
Borrower or, prior to the Interim Guaranty Release Date, the
Interim Guarantor, or such ERISA Affiliate from the PBGC
stating its intention to terminate any Plan of the Borrower
or, prior to the Interim Guaranty Release Date, the Interim
Guarantor or such ERISA Affiliate or to have a trustee
appointed to administer any such Plan;
(ix) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan of the
Borrower or, prior to the Interim Guaranty Release Date, the
Interim Guarantor, or any ERISA Affiliate;
(x) promptly and in any event within five Business
Days after receipt thereof by the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Borrower or, prior to the
Interim Guaranty Release Date, the Interim Guarantor, or such
ERISA Affiliate concerning (A) the imposition of Withdrawal
Liability by a Multiemployer Plan, (B) the determination that
a Multiemployer Plan is,
57
53
or is expected to be, in reorganization within the
meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or
(D) the amount of liability incurred, or expected to be
incurred, by such Person or such ERISA Affiliate in connection
with any event described in clause (A), (B) or (C) above; and
(xi) such other information respecting the condition
or operations, financial or otherwise, of such Person or any
of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including, without limitation,
liability insurance) with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Person or such
Subsidiary operates.
(f) Visitation Rights. In the case of the Borrower, at any
reasonable time and from time to time, at the request of the Majority
Lenders, permit the Administrative Agent and any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
and, prior to the Interim Guaranty Release Date, the Interim Guarantor, without
the written consent of the Majority Lenders, will not, subject to Section 8.13:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any lien, security
interest or other charge or encumbrance, or any other type of
preferential arrangement, upon or with respect to its properties,
whether now owned or hereafter acquired, or assign, or permit any of
its Subsidiaries to assign, any right to receive income, in each case
to secure or provide for the payment of any Debt of any Person, other
than (i) liens or security interests existing on the date hereof and,
in the case of the Borrower, set forth on Schedule 5.02(a), (ii)
purchase money liens or purchase money security interests upon or in
any property acquired or held by such Person or any Subsidiary in the
ordinary course of business to secure the purchase price of such
58
54
property or to secure indebtedness incurred solely for the purpose of
financing the acquisition of such property, (iii) liens or security
interests existing on such property at the time of its acquisition
(other than any such lien or security interest created in contemplation
of such acquisition), or (iv) liens, security interests or other
charges or encumbrances (other than those referred to in clauses (i),
(ii) and (iii) above) at any time outstanding securing an aggregate
principal amount of Debt not exceeding in the case of the Interim
Guarantor prior to the Interim Guaranty Release Date, $200,000,000, and
in the case of the Borrower at all times, $100,000,000, (or, in each
case, its equivalent in another currency), provided that the aggregate
principal amount of the Debt secured by the liens or security interests
referred to in clauses (ii) and (iii) above shall not exceed in the
case of the Interim Guarantor prior to the Interim Guaranty Release
Date, $150,000,000, and in the case of the Borrower at all times,
$75,000,000, (or in each case its equivalent in another currency) at
any time outstanding.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets, (whether now owned or hereafter acquired) to, any Person,
or permit any of its Subsidiaries to do so, except that any Subsidiary
of such Person may merge or consolidate with or into, or transfer
assets to, or acquire assets of, any other Subsidiary of such Person
and except that any Subsidiary of such Person may merge into or
transfer assets to such Person and such Person may merge or
consolidate, and any Subsidiary of such Person may merge or
consolidate, with or into any other Person, provided in each case that,
immediately after giving effect to such proposed transaction, no Event
of Default or event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default would exist and in the
case of any such merger or consolidation to which such Person is a
party, the Person into which such Person shall be merged or formed by
any such consolidation shall first or simultaneously assume such
Person's obligations hereunder and, in the case of the Borrower, under
the Notes, in each case, in an agreement or instrument satisfactory in
form and substance to the Majority Lenders.
(c) Financial Covenants. From and after the Interim Guaranty
Release Date, (i) permit the Debt to Capitalization Ratio of the
Borrower to exceed 45 percent or (ii) permit the Interest Coverage
Ratio to be less than 3.50.
(d) Change in Nature of Business. Make, or permit one or more
of its Subsidiaries to make, any material change in the nature of the
business of such Person and its Subsidiaries taken as a whole as
carried on at the date hereof.
59
55
(e) Disposition of Assets. Lease, sell, transfer or otherwise
dispose of, and cause its Subsidiaries to lease, sell, transfer or
otherwise dispose of, voluntarily or involuntarily, any assets except
for consideration in an amount not less than the fair market value of
such asset as determined in good faith by such Person's Board of
Directors and only if such Person promptly notifies the Administrative
Agent of such lease, sale, transfer, or other disposition, excluding,
however, (i) sales of inventory in the ordinary course of business,
(ii) sales, transfers and other dispositions of equipment determined to
be obsolete or no longer useful, (iii) sales, transfers or other
dispositions of Margin Stock and (iv) sales, transfers or other
dispositions of other assets of such Person and its Subsidiaries to the
extent that the aggregate fair market value of all such other assets so
leased, sold (including, without limitation, sale and leaseback
transactions), transferred and disposed after the date hereof shall not
exceed $50,000,000 (or its equivalent in another currency); provided
that the Borrower may transfer the proceeds of the initial Borrowing to
the Interim Guarantor pursuant to the Debt Agreement described in the
Form 10, the Interim Guarantor may transfer the Corn Refining Business
to the Borrower and the Interim Guarantor may distribute the capital
stock of the Borrower to its shareholders, in each case as contemplated
by the Spin-off and the Form 10.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) The Borrower shall fail to pay any principal of any
Advance when it becomes due and payable, (ii) the Borrower shall fail
to pay any interest on any Advance within three Business Days of when
it becomes due and payable or (iii) either the Borrower or, prior to
the Interim Guaranty Release Date, the Interim Guarantor, shall fail to
make any other payment under this Agreement or, in the case of the
Borrower, under any other Loan Document if such failure shall remain
unremedied for five days after a demand for payment is given to such
Person by the Administrative Agent or any Lender; or
(b) Any representation or warranty made herein by either the
Borrower or any of its officers, or prior to the Interim Guaranty
Release Date, the Interim Guarantor or any of its officers, in each
case in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
60
56
(c) Either the Borrower, or prior to the Interim Guaranty
Release Date, the Interim Guarantor, shall fail to perform or observe
(i) any term, covenant or agreement required to be performed or
observed by it contained in Section 5.01(c), 5.01(d)(iii), 5.01(f) or
5.02, or (ii) any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall
remain unremedied for 10 days after written notice thereof shall have
been given to such Person by the Administrative Agent or any Lender; or
(d) (i) The Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $25,000,000 (or its
equivalent in another currency) in the aggregate or (ii) prior to the
Interim Guaranty Release Date, the Interim Guarantor or any of its
Subsidiaries shall fail to pay any principal of or premium or interest
on any Debt which is outstanding in a principal amount of at least
$50,000,000 in the aggregate, (but, in each case excluding Debt
evidenced by the Notes or otherwise arising under this Agreement), in
each case when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(e) Either the Borrower or any of its Subsidiaries or, prior
to the Interim Guaranty Release Date, the Interim Guarantor or any of
its Subsidiaries, shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against such
Person or any of its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property; or such Person or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (e); or
61
57
(f) Any judgment or order for the payment of money in excess
of in the case of the Borrower, $25,000,000, or, in the case of the
Interim Guarantor and prior to the Interim Guaranty Release Date,
$50,000,000 (or in each case, its equivalent in another currency) shall
be rendered against such Person or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(g) (i) Any Person, other than the Interim Guarantor prior to
the Interim Guaranty Release Date, or two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 20% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of the
Borrower (except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by
66-2/3% of the remaining members of the board of directors of the
Borrower or (y) nominated for election by a majority of the remaining
members of the board of directors of the Borrower and thereafter
elected as directors by the shareholders of the Borrower); or (iii)
any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(h) An ERISA Default shall occur and be continuing or a lien
under Section 4068 of ERISA shall be imposed against the assets of the
Borrower or any of its Subsidiaries;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Notes and all A Advances and B Advances then outstanding, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes and all A Advances and B Advances
then outstanding, all such interest and all such amounts shall become and be
forthwith
62
58
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower or any of its Subsidiaries, or prior to the Interim
Guaranty Release Date, the Interim Guarantor or any of its Subsidiaries, in each
case under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes and all such
Advances then outstanding, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each of the Borrower and the Interim Guarantor.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Debt resulting from the Advances),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall be binding
upon all Lenders and all holders of the Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower or the Interim
Guarantor pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the Lender that made any
Advance as the holder of the Debt resulting therefrom until the Administrative
Agent receives and accepts an Assumption Agreement entered into by an Assuming
Lender as provided in Sections 2.17 and 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower and counsel for the Interim Guarantor), independent
public accountants and other experts selected by it and shall not be liable for
any
63
59
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the Interim
Guarantor or to inspect the property (including the books and records) of the
Borrower or the Interim Guarantor; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, First Chicago, Chase Manhattan and
Affiliates. With respect to their Commitments, the Advances made by them and the
Notes issued to them, Citibank, First Chicago and Chase Manhattan shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though they were not the Administrative Agent, Documentation Agent
and Co-Agent respectively; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Citibank, First Chicago or Chase
Manhattan in its individual capacity. Citibank, First Chicago, Chase Manhattan
and their respective Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
the Borrower or the Interim Guarantor, any of their respective Subsidiaries and
any Person who may do business with or own securities of the Borrower or the
Interim Guarantor or any such Subsidiary, all as if Citibank were not the
Administrative Agent, Citicorp Securities, Inc. were not the Arranger, First
Chicago were not the Documentation Agent and Chase Manhattan were not the
Co-Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to the respective principal
amounts of the A Advances then owing to each of them (or if no such A Advances
are at the time outstanding or if any such A Advances
64
60
are then owing to Persons which are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement or any action taken
or omitted by the Administrative Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender (other
than the Designated Bidders) agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Administrative Agent is not reimbursed
for such expenses by the Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $1,000,000,000. 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 under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
SECTION 7.07. Documentation Agent, Co-Agent and Arranger. The
Documentation Agent, Co-Agent and Arranger shall have no duties or obligations
under this Agreement or the other Loan Documents in their respective capacities
as Documentation Agent, Co-Agent and Arranger.
65
61
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by
either of the Borrower or, prior to the Interim Guaranty Release Date, the
Interim Guarantor, therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Majority Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders (other than the
Designated Bidders), do any of the following: (a) waive any of the conditions
specified in Section 3.01 or 3.02, (b) increase the Commitments of the Lenders
(other than as provided in Section 2.18) or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the A Notes
or any fees or other amounts payable hereunder, (d) postpone any date fixed for
any payment of principal of, or interest on, the A Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the A Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder, (f) amend this Section 8.01 or (g) reduce or limit the obligations of
the Interim Guarantor under Section 9.01(a) prior to the Interim Guaranty
Release Date; provided further that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, waive any of the conditions
specified in Section 3.03, provided further, that no amendment, waiver or
consent shall, unless in writing and signed by all of the holders of B Notes at
such time (a) reduce the principal of, or interest on, the B Notes, (b) postpone
any date fixed for any payment of principal of, or interest on, the B Notes of
(c) change the aggregate unpaid principal amount of the B Notes, and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex) and mailed (postage prepaid, return receipt
requested), telegraphed, telecopied, telexed or delivered, if to the Borrower,
at its address at Corn Products International, Inc., 6500 South Archer Road,
Bedford Park, Illinois 60501-1933, Attention: Treasurer; if to the Interim
Guarantor, at its address at CPC International Inc., P.O. Box 8000, Englewood
Cliffs, NJ 07632, Attn: Vice President and Treasurer; if to any Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance or Designation Agreement pursuant to which it became a Lender; and if
to the Administrative Agent, at its address at Two Penns Way, Suite 200, New
Castle, DE 19720, Fax No. (302) 894-6032, Attention: Mr. Tim White; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
when mailed, telegraphed, telecopied or telexed, be effective
66
62
when deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent, notices to
the Borrower pursuant to Article VI shall not be effective until received by the
Borrower and notices to the Interim Guarantor under Article IX shall not be
effective until received by the Interim Guarantor.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses of both the Administrative Agent
and the Arranger in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Arranger with respect thereto and with
respect to advising the Administrative Agent and the Arranger as to each such
party's respective rights and responsibilities under this Agreement. The
Borrower further agrees to pay on demand all costs and expenses of the
Administrative Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses of the Administrative Agent and each
Lender), in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder including, without limitation, reasonable counsel fees
and expenses for the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance or the
maturity date for such Advance as specified in accordance with Section 2.03(d),
as a result of a payment or Conversion pursuant to Section 2.08(f), 2.09, 2.10
or 2.12 or acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, the Borrower shall, upon demand by any Lender (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses which it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. A certificate setting forth with
reasonable specificity the basis
67
63
for and amount of such losses, costs or expenses shall be submitted to the
Borrower and the Administrative Agent by such Lender and shall be conclusive and
binding for all purposes, absent manifest error.
(c) Without prejudice to any other rights which the Lenders
may have hereunder or under applicable law, the Borrower agrees to indemnify and
hold harmless the Administrative Agent, the Arranger, each Lender, any of their
Affiliates and each of their respective directors, officers, employees, advisors
and agents (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation, fees
and disbursements of counsel), that may be incurred by or asserted against the
Administrative Agent, the Arranger, such Lender or any of their Affiliates or
any such director, officer, employee, advisor or agent which would not have been
incurred by or asserted or awarded against any Indemnified Party but for the
Administrative Agent or such Lender being a party to this Agreement, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation, or proceeding
arising out of, related to or in connection with (i) the Notes or this
Agreement, or related to any transaction or proposed transaction (whether or not
consummated) in which any proceeds of any Borrowing are applied or proposed to
be applied, directly or indirectly, by the Borrower (including, without
limitation, any such application or proposed application by the Borrower related
to any acquisition or proposed acquisition by the Borrower or any Subsidiary or
affiliate of the Borrower of all or any portion of the stock or substantially
all of the assets of any Person), or the actual or proposed use of the proceeds
of the Advances, whether or not the Administrative Agent, the Arranger, such
Lender or any of their Affiliates or any such director, officer, employee,
advisor or agent is a party to such transaction or (ii) the Borrower's entering
into this Agreement or the Notes, or to any actions or omissions of the
Borrower, any of its respective Subsidiaries or affiliates or any of its or
their respective directors, officers, employees, advisors, affiliates or agents
in connection therewith, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such claim, damage,
loss, liability or expense (A) is found in a final, non-appealed judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct or (B) arising from disputes among two or
more Lenders (but not including any such dispute that involves a Lender to the
extent that such Lender is acting in any different capacity (such as an
Administrative Agent or Arranger)). The Borrower also agrees not to assert any
claim against the Administrative Agent, the Arranger, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, advisors
and agents, on any theory of liability, for consequential or punitive damages
arising out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances. The obligations of the Borrower under this subsection (c) shall
survive the Termination Date, provided that this subsection (c) shall not apply
to derivative
68
64
claims of the stockholders of any Lender against such Lender if such claims are
based upon occurrences subsequent to the Termination Date.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.14, 7.05 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Notes, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and each of its Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender and each of its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03 which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01, 3.02
and 3.03) when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender, the Documentation Agent, the Co-Agent and the Arranger that such
Lender, Documentation Agent, Co-Agent or Arranger, as the case may be, has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent, each Lender and their respective successors
and assigns, provided that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders except as a result of a merger or consolidation permitted by Section
5.02(e).
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may (and shall if requested to
do so by the Borrower pursuant to Section 2.11(c)) assign to any Person, all or
a portion of its rights and obligations under this Agreement and the Notes
(including, without limitation, all of its Commitment, the A Advances (other
than any B Advances or B Notes) owing to it and the A Note or Notes held by it);
provided, however, that (i) other than in the case of an assignment to a Person,
that immediately
69
65
prior to such assignment was a Lender, or an Affiliate of a Lender (whereupon
notice thereof shall promptly be given to the Borrower and the Administrative
Agent), each such assignment shall be to an Eligible Assignee to which the
Borrower and the Administrative Agent have consented (with respect to an
assignment of all of such Lender's rights and obligations hereunder, such
consents may not be unreasonably withheld), and (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any A Note or Notes subject to such assignment and a processing and
recordation fee of $3,000 if the assignee is not already a Lender. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution and delivery thereof to the
Administrative Agent, (x) the assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and (y) the Lender assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in, or in connection with, this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
70
66
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of each of the Lenders and, with respect
to Lenders other than Designated Bidders, the Commitment of, and principal
amount of the A Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee the Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower shall execute and
deliver to the Administrative Agent in exchange for the surrendered A Note or
Notes a new A Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment hereunder, a new A Note to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new A Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered A Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 hereto.
(e) Each Lender may assign to one or more banks or other
entities any B Note or Notes held by it, and each Lender (other than a
Designated Bidder) may designate one or more banks or other entities to have a
right to make B Advances as a Lender pursuant to Section 2.03; provided that
(i) other than in the case of a designation by a Lender of an Affiliate of such
Lender, such Lender shall have obtained the prior written consent of the
Administrative Agent and the Borrower, such consent not to be unreasonably
withheld or delayed, (ii) no such Lender shall be entitled to make more than two
such designations, (iii) each such Lender making one or more of such
designations shall retain the right to make B Advances as a Lender pursuant to
Section 2.03, (iv) each such designation shall be to a Designated Bidder and
(v) the parties to each such designation shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, a
Designation Agreement. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Designation Agreement, the
designee thereunder shall be a party hereto with a right to make B Advances as a
Lender pursuant to Section 2.03 and the obligations related thereto.
71
67
(f) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representations or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(h) Each Lender (other than a Designated Bidder) may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
A Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such A Note or
Notes for all purposes of this Agreement, (iv) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the
72
68
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or postpone
any date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation. If the Administrative Agent or such Lender shall request the
written consent of such participant to any of the actions set forth in this
paragraph (h), and shall not receive either the consent thereto or denial
thereof in writing within five Business Days of making such request, such
participant shall be deemed to have given its consent.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender by executing and delivering to the
Administrative Agent in the case of an assignment or designation, and to such
Lender in the case of a participation, a letter in substantially the form of
Exhibit E hereto.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Acknowledgements. Each of the Borrower and the
Interim Guarantor hereby acknowledges that: (a) it has been advised by counsel
in the negotiation, execution and delivery of this Agreement and, in the case of
the Borrower, the other Loan Documents; (b) neither the Administrative Agent nor
any Lender has any fiduciary relationship with or fiduciary duty to the Borrower
or the Interim Guarantor arising out of or in connection with this Agreement or,
in the case of the Borrower, any of the other Loan Documents, and the
relationship between the Administrative Agent and the Lenders, on the one hand,
and the Borrower or the Interim Guarantor, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and (c) no joint
venture is created hereby or, in the case of the Borrower, by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders or among the Borrower,
the Interim Guarantor and the Administrative Agent.
SECTION 8.09. Consent to Jurisdiction. (a) The Borrower and,
prior to the Interim Guaranty Release Date, the Interim Guarantor each hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in New York City and any appellate court from any thereof in any action
or proceeding arising out of or relating to this Agreement, and the Borrower
and, prior to the Interim Guaranty Release Date, the Interim Guarantor each
73
69
hereby irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or in such Federal
court. The Borrower and, prior to the Interim Guaranty Release Date, the Interim
Guarantor each hereby irrevocably waives, to the fullest extent that it may
effectively do so, the defense of an inconvenient forum to the maintenance of
any such action or proceeding. The Borrower and, prior to the Interim Guaranty
Release Date, the Interim Guarantor each hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date hereof at
1633 Broadway, New York, New York 10019, as its agent to receive on behalf of
the Borrower and, prior to the Interim Guaranty Release Date, the Interim
Guarantor and their respective property, service of copies of the summons and
complaint, and any other process which may be served in any such action or
proceeding. Such service may be made by mailing or delivering a copy of such
process to the Borrower or, prior to the Interim Guaranty Release Date, the
Interim Guarantor in care of the Process Agent at the Process Agent's above
address with a copy to the Borrower or, prior to the Interim Guaranty Release
Date, the Interim Guarantor at its address referred to in Section 8.02, and the
Borrower and, prior to the Interim Guaranty Release Date, the Interim Guarantor
each hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, the Borrower and,
prior to the Interim Guaranty Release Date, the Interim Guarantor each also
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to the Borrower or, prior to
the Interim Guaranty Release Date, the Interim Guarantor at its address
specified in Section 8.02. The Borrower and, prior to the Interim Guaranty
Release Date, the Interim Guarantor each agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Nothing in this Section 8.09 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by law or affect the right of the Administrative Agent or any Lender
to bring any action or proceeding against the Borrower or, prior to the Interim
Guaranty Release Date, the Interim Guarantor or their respective property in the
courts of any other jurisdictions including the Federal and State courts sitting
in the State of Illinois or the State of New Jersey, respectively.
SECTION 8.10. GOVERNING LAW. THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Agreement by telecopier
shall be effective as delivery of a manually executed counterpart.
74
70
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Interim Guarantor, the Administrative Agent and the Lenders hereby irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
this Agreement, the Notes or the actions of the Administrative Agent, the
Arranger or any Lender in the negotiation, administration, performance or
enforcement thereof.
SECTION 8.13. Certain Actions. No action taken by the Interim
Guarantor or the Borrower in connection with the Spin-off or any transaction
contemplated by the Form 10, the Distribution Agreement or any Ancillary
Agreement (as defined in the Distribution Agreement) and no action taken by the
Interim Guarantor with respect to the merger of the Interim Guarantor with a
wholly-owned subsidiary of the Interim Guarantor for the sole purpose of
changing the Interim Guarantor's name to "Bestfoods" shall be deemed to violate
any of the representations, warranties, covenants or other provisions contained
in this Agreement, including, without limitation, the provisions of Article IV,
Article V, and Article VI hereof.
ARTICLE IX
INTERIM GUARANTY
SECTION 9.01. Interim Guaranty. (a) In consideration of
Advances made to the Borrower prior to the Interim Guaranty Release Date, the
Interim Guarantor, as a guarantor and not as principal debtor, hereby guarantees
to the Administrative Agent and each Lender the punctual repayment when due
(subject to the last sentence of this clause (a)) of all Obligations owed by the
Borrower under this Agreement and under the Notes (the "Borrower's Obligations")
until the Interim Guaranty Release Date less any prior payments made by the
Borrower or the Interim Guarantor on the Borrower's Obligations prior to the
Interim Guaranty Release Date. In no event will the liability of the Interim
Guarantor exceed the aggregate amount of the Borrower's Obligations, together
with any and all expenses incurred by the Administrative Agent and the Lenders
in enforcing their rights under this Agreement. Subject to the limitations
above, the Interim Guarantor agrees that if the Borrower does not pay the
Borrower's Obligations under this Agreement or under the Notes when due, Interim
Guarantor shall, within five Business Days after demand by and receipt of
written notice from the Administrative Agent as set forth in clause (h) of this
Section 9.01 below, pay the same to the Administrative Agent for the benefit of
the Lenders.
(b) Any and all payments by the Interim Guarantor prior to the
Interim Guaranty Release Date hereunder shall be made in accordance with the
provisions of Section 2.14.
75
71
(c) In the event that the Interim Guarantor is called upon to
make a payment of any Borrower's Obligation under this Section 9.01 pursuant to
the last sentence of clause (a) above, the Interim Guarantor will make such
payment to the Administrative Agent for the benefit of the Lenders in United
States dollars at the Administrative Agent's Account.
(d) Subject to the provisions of the last sentence of clause
(a) above, the Interim Guarantor guarantees that the Borrower's Obligations will
be paid to the Administrative Agent for the benefit of the Lenders in accordance
with the terms of this Agreement or any Loan Document, express or implied, with
the Borrower, regardless of any law, regulation or order of any jurisdiction
affecting any term of any Borrower's Obligation or the Lender's rights with
respect thereto (including, without limitation, any sovereign act or
circumstance which might otherwise constitute a defense to, or a legal or
equitable discharge of, the Borrower). Subject to the provisions of the last
sentence of clause (a) above, the obligations of the Interim Guarantor under
this Section 9.01 are independent of the Borrower's Obligations, and, prior to
the Interim Guaranty Release Date, a separate action or actions may be brought
and prosecuted against the Interim Guarantor to enforce this Section 9.01,
irrespective of whether any action is brought against the Borrower or whether
the Borrower is joined in any such action or actions.
(e) Subject to the provisions of the last sentence of clause
(a) above, the Interim Guarantor hereby waives promptness, diligence, notice of
acceptance, presentment, demand, protest and notice of dishonor with respect to
any Borrower's Obligation and this Section 9.01 and any requirement that the
Administrative Agent or any of the Lenders exhaust any right or take any action
against the Borrower, other than the requirement that the relevant party first
demands payment (pursuant to notice as permitted by the terms of this Agreement)
by the Borrower under the terms of this Agreement. The guaranty under this
Section 9.01 shall, prior to the Interim Guaranty Release Date, continue to be
effective, or reinstated, as the case may be, if at any time prior to the
Interim Guaranty Release Date any payment of any Borrower's Obligation is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
(f) The Interim Guarantor's liability under this Section 9.01
shall until the Interim Release Guaranty Date be unconditional irrespective of
(i) any amendment or waiver or consent to departure from the terms of any
Borrower's Obligation including any extension of the time or change in the
manner or place of payment only if agreed in writing by the Borrower or the
Interim Guarantor, and (ii) any other circumstance which might otherwise
constitute a defense available to, or discharge of, the Borrower, provided,
however, that the relevant party first demands payment by the Borrower in
accordance with the last sentence of clause (a) above.
(g) Upon payment to the Administrative Agent for the benefit
of the Lenders in full in cash of all the Borrower's Obligations under the Loan
Documents pursuant to the terms of this Section 9.01, Interim Guarantor shall be
subrogated to any and all rights the
76
72
Administrative Agent or any Lender may have against Borrower in connection with
such Borrower's Obligations, and the Administrative Agent and each Lender shall
execute all documents reasonably requested by the Interim Guarantor to evidence
or confirm such subrogation. Prior to the Interim Guaranty Release Date the
guaranty under this Section 9.01 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment in respect of any
Borrower's Obligation made by the Borrower is rescinded or must otherwise be
returned by the Administrative Agent or any of the Lenders prior to the Interim
Guaranty Release Date upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
(h) All notices to the Interim Guarantor required hereunder
shall be sent to it at the address specified in Section 8.02 in the manner
specified therein.
(i) All obligations, covenants, agreements and amendments of
the Interim Guarantor hereunder shall terminate at the Interim Guaranty Release
Date and, at such time the Interim Guarantor shall have no further obligations
hereunder (except as set forth in Section 2.14(h)), and under no circumstances
shall the obligations of the Interim Guarantor under this Agreement be
reinstated after the Interim Guaranty Release Date.
(j) Each of the Lenders acknowledges that this interim
guarantee is provided solely on an interim basis and for the sole purpose of
enabling the Borrower to borrow hereunder prior to the Spin-off. By execution of
this Agreement or the acceptance of an assignment or participation as
contemplated by Section 8.07 of this Agreement, each Lender hereby acknowledges
and agrees that the Obligations of the Interim Guarantor are limited as set
forth in this Section 9.01.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CORN PRODUCTS INTERNATIONAL, INC., as
Borrower
By__________________________
Title:
By__________________________
Title:
77
73
CITIBANK, N.A.,
as Administrative Agent
By__________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
By__________________________
Title:
THE CHASE MANHATTAN BANK,
as Co-Agent
By__________________________
Title:
78
74
COMMITMENTS BANKS
$75,000,000 CITIBANK, N.A.
By____________________________
Title:
$75,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By___________________________
Title:
$50,000,000 THE CHASE MANHATTAN BANK
By___________________________
Title:
$25,000,000 THE BANK OF NEW YORK
By___________________________
Title:
$25,000,000 CREDIT AGRICOLE INDOSUEZ
By___________________________
Title:
By___________________________
Title:
79
75
COMMITMENTS BANKS
$25,000,000 FIRST UNION NATIONAL BANK
By___________________________
Title:
$25,000,000 THE NORTHERN TRUST COMPANY
By___________________________
Title:
$25,000,000 SUNTRUST BANK, ATLANTA
By___________________________
Title:
$15,000,000 THE FUJI BANK, LIMITED
By___________________________
Title:
$340,000,000 Total of the Commitments
80
76
CPC INTERNATIONAL, INC.,
as Interim Guarantor
By__________________________
Title:
By__________________________
Title: