EXECUTION COPY
CREDIT AGREEMENT
Dated as of July 10, 2002
among
SONOCO PRODUCTS COMPANY
as Borrower
BANK OF AMERICA, N.A.,
as Administrative Agent and Swingline Lender
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
- --------------------------------------------------------------------------------
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
and
WACHOVIA BANK NATIONAL ASSOCIATION
and
SUNTRUST BANK
as Co-Syndication Agents
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
and
DEUTSCHE BANK AG NEW YORK BRANCH
as Co-Documentation Agents
TABLE OF CONTENTS
Page No.
-------
SECTION 1 DEFINITIONS.......................................................1
1.1 Definitions....................................................1
1.2 Other Interpretive Provisions.................................14
1.3 Accounting Terms..............................................15
1.4 Rounding......................................................15
1.5 References to Agreements and Laws.............................15
1.6 Times of Day..................................................16
SECTION 2 THE CREDIT FACILITIES............................................16
2.1 Revolving Loans...............................................16
2.2 Competitive Loan Subfacility..................................17
2.3 Swingline Loan Subfacility....................................20
2.4 Default Rate..................................................23
2.5 Extension and Conversion......................................23
2.6 Reductions in Commitments, Prepayments and Term Out Option....24
2.7 Fees..........................................................25
2.8 Capital Adequacy..............................................25
2.9 Inability To Determine Interest Rate..........................26
2.10 Illegality....................................................26
2.11 Requirements of Law...........................................27
2.12 Taxes.........................................................28
2.13 Funding Losses................................................30
2.14 Pro Rata Treatment............................................31
2.15 Sharing of Payments...........................................32
2.16 Place and Manner of Payments..................................33
2.17 Replacement of Lenders........................................33
SECTION 3 CONDITIONS.......................................................34
3.1 Closing Conditions............................................34
3.2 Each Loan Advance.............................................35
SECTION 4 REPRESENTATIONS AND WARRANTIES...................................36
4.1 Financial Statements..........................................36
4.2 Corporate Status..............................................37
4.3 Corporate Authorization.......................................37
4.4 No Conflicts..................................................37
4.5 Litigation....................................................37
4.6 Governmental and Other Approvals..............................38
4.7 Use of Loans..................................................38
4.8 Taxes.........................................................38
4.9 Compliance with Law...........................................38
4.10 ERISA.........................................................39
4.11 Hazardous Substances..........................................40
4.12 Liens.........................................................40
4.13 Investment Company............................................40
4.14 Disclosure....................................................40
SECTION 5 COVENANTS........................................................41
5.1 Reports, Certificates and Other Information...................41
5.2 Books and Records.............................................43
5.3 Mergers and Consolidations....................................43
5.4 Insurance.....................................................43
5.5 Payment of Taxes..............................................43
5.6 Compliance with Laws and Contractual Obligations..............44
5.7 Use of Proceeds...............................................44
5.8 Asset Sales, etc..............................................44
5.9 Liens.........................................................44
5.10 Minimum Book Net Worth........................................46
5.11 Transactions With Affiliates..................................46
5.12 Indebtedness..................................................46
SECTION 6 EVENTS OF DEFAULT................................................47
6.1 Events of Default.............................................47
6.2. Rights and Remedies...........................................50
SECTION 7 AGENCY PROVISIONS................................................51
7.1 Appointment and Authorization of Agent........................51
7.2 Delegation of Duties..........................................51
7.3 Liability of Agent............................................52
7.4 Reliance by Agent.............................................52
7.5 Notice of Default.............................................53
7.6 Credit Decision; Disclosure of Information by Agent...........53
7.7 Indemnification of Agent......................................54
7.8 Agent in its Individual Capacity..............................54
7.9 Successor Agent...............................................54
7.10 Agent May File Proofs of Claim................................55
7.11 Other Agents; Lead Managers...................................56
SECTION 8 MISCELLANEOUS....................................................56
8.1 Notices.......................................................56
8.2 Successors and Assigns........................................58
8.3 No Waiver; Remedies Cumulative................................62
8.4 Attorney Costs, Expenses and Taxes............................62
8.5 Indemnification by Borrower...................................62
8.6 Amendments, Etc...............................................63
8.7 Audits/Inspections............................................64
8.8 Confidentiality...............................................65
8.9 Counterparts; Telecopy........................................65
8.10 Headings......................................................66
8.11 Survival of Indemnification...................................66
8.12 Governing Law; Submission to Jurisdiction; Venue..............66
8.13 Severability..................................................67
8.14 Entirety......................................................67
8.15 Survival of Representations and Warranties....................67
SCHEDULES
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Committed Note
Schedule 2.2(b)-1 Form of Competitive Bid Request
Schedule 2.2(b)-2 Form of Notice of Competitive Bid Request
Schedule 2.2(c) Form of Competitive Bid
Schedule 2.2(e) Form of Competitive Bid Accept/Reject Letter
Schedule 2.2(i) Form of Competitive Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.5 Form of Notice of Conversion or Extension
Schedule 2.12 Form of U.S. Tax Compliance Certificate
Schedule 3.1(c) Form of Legal Opinion
Schedule 4.12 Existing Liens
Schedule 5.1(c) Form of Officer's Compliance Certificate
Schedule 5.12(b) Existing Indebtedness
Schedule 8.2(b) Form of Assignment and Acceptance
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of July 10, 2002 (the "Credit
Agreement"), is by and among SONOCO PRODUCTS COMPANY, a South Carolina
corporation (the "Borrower"), the several lenders identified on the signature
pages hereto and such other lenders as may from time to time become a party
hereto (the "Lenders") and BANK OF AMERICA, N.A., as administrative agent for
the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$450,000,000 364-day revolving credit facility under this Credit Agreement for
commercial paper backup and funding general corporate purposes; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Affiliate" means as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. For purposes of this definition, a
Person shall be deemed to be "controlled by" a Person if such Person
possesses, directly or indirectly, power either (a) to vote 5% more of
the securities having ordinary voting power for the election of
directors of such Person or (b) to direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.
"Agent" means Bank of America, in its capacity as
administrative agent hereunder, and any successors and assigns in such
capacity.
1
"Agent-Related Persons" means the Agent (including any
successor Agent), together with its Affiliates (including, in the case
of Bank of America in its capacity as the Agent, the Arranger), and the
officers, directors, employees agents and attorneys-in-fact of such
Persons and Affiliates.
"Applicable Percentage" shall mean, for purposes of
calculating the applicable interest rate for any day for any Loan, the
applicable rate of the Facility Fee for any day for purposes of Section
2.7(a), or the applicable rate of the Utilization Fee for any day for
purposes of Section 2.7(b), the appropriate applicable percentage set
forth below corresponding to the ratings applicable on such date to any
Long-Term Debt of the Borrower then outstanding:
----------------------------------------------------------------------------------------------------------
Debt Ratings Applicable Applicable Applicable Applicable
Pricing of Percentage for Percentage for Percentage for Percentage for
Level S&P/Moody's Eurodollar Rate Base Rate Loans Facility Fee Utilization Fee
Loans
----------------------------------------------------------------------------------------------------------
I = or greater than A+/A1 0.235% 0 0.065% 0.100%
----------------------------------------------------------------------------------------------------------
II A/A2 0.300% 0 0.075% 0.125%
----------------------------------------------------------------------------------------------------------
III A-/A3 0.405% 0 0.095% 0.125%
----------------------------------------------------------------------------------------------------------
IV BBB+/Baa1 0.500% 0 0.125% 0.125%
----------------------------------------------------------------------------------------------------------
V BBB/Baa2 0.600% 0 0.150% 0.250%
----------------------------------------------------------------------------------------------------------
VI less than or = BBB-/Baa3 0.750% 0 0.250% 0.250%
----------------------------------------------------------------------------------------------------------
For purposes of the foregoing, (a) if no rating for any Long-Term Debt
of the Borrower shall be available from either Moody's or S&P, such
rating agency shall be deemed to have established a rating for the
Long-Term Debt of the Borrower which is one rating grade higher than
the subordinated debt rating grade of the Borrower, (b) if no rating
for any Long-Term Debt or subordinated debt of the Borrower shall be
available from either Moody's or S&P, the Applicable Percentage shall
be as set forth in Pricing Level VI, (c) if the ratings established or
deemed to have been established by Moody's and S&P shall fall within
different categories, the Applicable Percentage shall be based upon the
superior (or numerically lowest) Pricing Level and (d) if any rating
established or deemed to have been established by Moody's or S&P shall
be changed (other than as a result of a change in the rating system of
either Moody's or S&P), such change shall be effective as of the date
on which such change is first announced by the rating agency making
such change. Each such change shall apply to the Facility Fees,
Utilization Fees and all Loans that are outstanding at any time during
the period commencing on the effective date of such change and ending
on the date immediately preceding the effective date of the next such
change. If the rating system of either Moody's or S&P shall change
prior to the Termination Date, the Borrower and the Lenders shall
negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system. If the Borrower
exercises the term-out option pursuant to Section 2.6(e), (i) the
Applicable Percentage for Eurodollar Rate Loans shall be increased
during the term-out period (x) by 0.250% for each of Pricing Levels I
through V, and (y) by 0.500% for
2
Pricing Level VI and (ii) the Applicable Percentage for Base Rate Loans
shall be increased to 0.250% for Pricing Level VI.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its
capacity as sole lead arranger and sole book manager.
"Attorney Costs" means and includes all reasonable fees,
expenses and disbursements of any law firm or other external counsel
and, without duplication, the reasonable and documented allocated cost
of internal legal services and all expenses and disbursements of
internal counsel.
"Bank of America" means Bank of America, N.A., and its
successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate in effect on such day
plus 1/2 of 1% and (b) the Prime Rate in effect on such day.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Book Net Worth" means, at any time, consolidated net
stockholders' equity of the Borrower and its Subsidiaries determined in
accordance with GAAP.
"Borrower" means Sonoco Products Company, a South Carolina
corporation, as identified as such in the heading hereof, together with
any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in San Francisco, California or New
York, New York are authorized or required by law to close, except that,
when used in connection with a Eurodollar Rate Loan, such day shall
also be a day on which dealings between banks are carried on in U.S.
dollar deposits in London, England, San Francisco, California and New
York, New York.
"Capital Lease" means any lease of Property the obligations
with respect to which are required to be capitalized on a balance sheet
of the lessee in accordance with GAAP.
"Closing Date" means the date hereof.
3
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
References to sections of the Code shall be construed also to refer to
any successor sections.
"Commitment" means (i) as to each Lender, the commitment of
such Lender to make its Commitment Percentage of Committed Loans up to
its Committed Amount and (ii) as to the Swingline Lender, the Swingline
Commitment.
"Commitment Percentage" means, for each Lender, a fraction
(expressed as a percentage) the numerator of which is the Committed
Amount of such Lender at such time and the denominator of which is the
Total Committed Amount, provided that if the Commitment Percentage of
any Lender is to be determined after the Commitments have been
terminated, then the Commitment Percentage of such Lender shall be
determined immediately prior (and without giving effect) to such
termination.
"Committed Amount" means, as to each Lender, the maximum
amount of such Lender's Commitment as identified on Schedule 2.1(a), as
such amount may be reduced or increased from time to time in accordance
with the terms of this Credit Agreement.
"Committed Loans" means such term as defined in Section 2.1.
"Committed Note" or "Committed Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Committed Loans delivered pursuant to Section 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to the terms of Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.2, the fixed
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.2.
"Competitive Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.2.
"Competitive Lenders" means, at any time, those Lenders which
have Competitive Loans outstanding.
4
"Competitive Note" or "Competitive Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Competitive Loans, if any, delivered pursuant to Section 2.2(i),
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced
from time to time.
"Credit Agreement" means this Credit Agreement.
"Credit Documents" means this Credit Agreement, the Notes, the
Fee Letter and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to
fund any portion of the Committed Loans or participations in Swingline
Loans required to be funded by it hereunder within one Business Day of
the date required to be funded by it hereunder, (b) has otherwise
failed to pay over to the Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date
when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Designating Lender" shall have the meaning assigned thereto
in Section 8.3(h).
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means any Subsidiary (a) incorporated
under the laws of the United States or any state, territory or
possession thereof, or the Commonwealth or Puerto Rico, (b) the
operations of which are substantially conducted in the United States or
its territories or possessions, or in the Commonwealth of Puerto Rico,
or (c) a substantial portion of the assets of which are located in the
United States or its territories or possessions, or in the Commonwealth
of Puerto Rico.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by the Agent and the Borrower, unless (x) such
Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) a Default or
Event of Default has occurred and is continuing (each such approval not
to be unreasonably withheld or delayed).
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
5
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with the Borrower or any of
its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or
is a member of a group which includes the Borrower and which is treated
as a single employer under Sections 414(b), (c), (m), or (o) of the
Code.
"Eurodollar Rate" means for any Interest Period with respect
to any Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined
by the Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding clause
(a) does not appear on such page or service or such page or service
shall not be available, the rate per annum equal to the rate determined
by the Agent to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses
(a) and (b) are not available, the rate per annum determined by the
Agent as the rate of interest at which deposits in Dollars for delivery
on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request
at approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.
6
"Eurodollar Rate Loan" means any Loan bearing interest at a
rate determined by reference to the Eurodollar Rate.
"Event of Default" means such term as defined in Section 6.1.
"Facility Fee" means such term as defined in Section 2.7(a).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by the Agent.
"Fee Letter" means that certain letter agreement dated April
30, 2002 among the Agent, the Arranger and the Borrower, as amended,
modified, supplemented or replaced from time to time.
"Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3
hereof.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal,
central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of
or pertaining to government.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
7
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (iv) all obligations,
including without limitation intercompany items, of such Person issued
or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such
Person, (v) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (vi)
all Guaranty Obligations of such Person, (vii) the principal portion of
all obligations of such Person under Capital Leases, (viii) all
obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or
option agreements or other interest or exchange rate or commodity price
hedging agreements, or (ix) the maximum amount of all letters of credit
issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed). The Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general
partner (except for any such Indebtedness with respect to which the
holder thereof is limited to the assets of such partnership or joint
venture).
"Indemnified Liabilities" means (a) any and all claims,
demands, actions or causes of action that are asserted against any
Agent-Related Person by any Person (other than the Agent or any Lender)
relating directly or indirectly to a claim, demand, action or cause of
action that such Person asserts or may assert against the Borrower, any
Affiliate of the Borrower or any of their respective officers or
directors; (b) any and all claims, demands, actions or causes of action
that may at any time (including at any time following repayment of the
Obligations and the resignation or removal of the Agent or the
replacement of any Lender) be asserted or imposed against any
Agent-Related Person, arising out of or relating to, the Credit
Documents, any predecessor Credit Documents, the Commitments, the use
or contemplated use of the proceeds of any extension of credit, or the
relationship of the Borrower, the Agent and the Lenders under this
Credit Agreement or any other Credit Document; (c) any administrative
or investigative
8
proceeding by any Governmental Authority arising out of or related to a
claim, demand, action or cause of action described in subsection (a) or
(b) above; and (d) any and all liabilities (including liabilities under
indemnities), losses, costs or expenses (including reasonable fees and
costs of counsel) that any Agent-Related Person suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause
of action or proceeding, or as a result of the preparation of any
defense in connection with any foregoing claim, demand, action, cause
of action or proceeding, in all cases, whether or not an Agent-Related
Person is a party to such claim, demand, action, cause of action or
proceeding.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December and the
Termination Date, (ii) as to any Eurodollar Rate Loan, any Competitive
Loan or any Swingline Loan, the last day of each Interest Period for
such Loan and on the Termination Date, and in addition where the
applicable Interest Period is more than 3 months, then also on the date
3 months from the beginning of the Interest Period, and each 3 months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Rate
Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day.
"Interest Period" means (i) with respect to any Eurodollar
Rate Loan, a period of one, two, three or six months' duration (or,
subject to the approval of all Lenders), nine or twelve months'
duration, provided that a twelve month Interest Period may only be
elected by the Borrower in connection with its exercise of the term-out
option pursuant to Section 2.6(e)), as the Borrower may elect,
commencing in each case on the date of the borrowing (including
extensions and conversions), (ii) with respect to any Competitive Loan,
a period beginning on the date of borrowing and ending on the date
specified in the respective Competitive Bid whereby the offer to make
such Competitive Loan was extended, which shall be not less than 7 days
nor more than 180 days' duration and (iii) as to any Swingline Loan, a
period commencing in each case on the date of the borrowing and ending
on the date agreed to by the Borrower and the Swingline Lender in
accordance with the provisions of Section 2.3(b)(i) (such ending date
in any event to be not more than 13 days from the date of borrowing);
provided, however, (A) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that in the case of Eurodollar
Rate Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(B) no Interest Period shall extend beyond the Termination Date, and
(C) in the case of Eurodollar Rate Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such
Interest Period shall, subject to clause (A) above, end on the last
Business Day of such calendar month.
"Laws" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or
9
judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means a Committed Loan and/or a Competitive
Loan and/or a Swingline Loan, as appropriate.
"Long-Term Debt" shall mean, at any time, any non-credit
enhanced publicly-held senior unsecured debt obligations outstanding at
such time with a maturity more than one year after the date of any
determination hereunder.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities (actual or contingent) or prospects of the Borrower
and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform any material obligation under the Credit Documents or (iii)
the material rights and remedies of the Lenders under the Credit
Documents.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which the Borrower, any
of its Subsidiaries or any ERISA Affiliate and at least one employer
other than the Borrower, its Subsidiaries or any ERISA Affiliate are
contributing sponsors.
"Non-Excluded Taxes" means such term as defined in Section
2.12(a).
"Note" or "Notes" means the Committed Notes and/or the
Competitive Notes and/or the Swingline Note, collectively, separately
or individually, as appropriate.
10
"Notice of Borrowing" means the written notice of borrowing as
referenced and defined in Section 2.1(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion of a Loan in accordance with Section 2.5, a
form of which is attached as Schedule 2.5.
"Obligations" means, with respect to the Agent and any or all
of the Lenders, the unpaid principal of, and the accrued and unpaid
interest on, the Loans, all accrued and unpaid fees and all other
unsatisfied obligations of the Borrower arising under any of the Credit
Documents, including without limitation under Sections 2.11, 2.12 and
2.13.
"Participation Interest" means the extension of credit by a
Lender by way of a purchase of a participation in Swingline Loans as
provided in Section 2.3(b)(iii).
"Participant" has the meaning specified in Section 8.2(d).
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Prime Rate" means, for any day, the rate per annum in effect
for such day as publicly announced from time to time by Bank of America
as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such rate announced by Bank
of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Prior Committed Facility" means the Borrower's committed
credit facility evidenced by that certain Credit Agreement dated as of
July 17, 2001 among the Borrower, the several financial institutions
from time to time party thereto and Bank of America, as administrative
agent, as amended and modified prior to the Closing Date.
11
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline
Lender and accepted by the Borrower with respect to such Swingline Loan
as provided in accordance with the provisions of Section 2.3.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at a Quoted Rate.
"Register" shall have the meaning given such term in Section
8.2(c).
"Replaced Lender" means such term as defined in Section 2.17.
"Replacement Lender" means such term as defined in Section
2.17.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the
post-event notice requirement is waived under subsections .13, .14,
.18, .19, or .20 of PBGC Reg. " 2615.
"Required Lenders" means, at any time, Lenders having at least
fifty-one percent (51%) of the Commitments or, if the Commitments have
been terminated, Lenders holding at least fifty-one percent (51%) of
the aggregate unpaid principal amount of the Notes (excluding any
Competitive Notes) and the Participation Interests; provided that the
Commitment of, and the portion of the Committed Amounts held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Subject Property" means such term as defined in Section 4.11.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to
12
elect a majority of the directors of such corporation (irrespective of
whether or not at the time, any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, limited liability
company, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than 50%
equity interest at any time. Unless otherwise specified, any reference
to a Subsidiary is intended as a reference to a Subsidiary of the
Borrower.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.3(a).
"Swingline Lender" means Bank of America.
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of
$15,000,000.00, as such promissory note may be amended, modified,
restated or replaced from time to time.
"Termination Date" means the earlier of (i) July 9, 2003 (as
such date may be extended pursuant to Section 2.6(e)) and (ii) the day
on which the Commitments shall have been reduced to zero and terminated
in whole pursuant to the terms hereof.
"Termination Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate 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 termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
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; or (vi) the complete or partial withdrawal of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"Total Assets" means, at any time, all items which would, in
accordance with GAAP, be classified as assets (other than intangible
assets) on a consolidated balance sheet of the Borrower and its
Subsidiaries.
13
"Total Committed Amount" means the aggregate Committed Amounts
of all the Lenders, being initially $450,000,000.
"U.S. Tax Compliance Certificate" means such term as defined
in Section 2.11(b)(Y).
"Utilization Fee" means such term as defined in Section
2.7(b).
"Utilization Fee Period" means such term as defined in Section
2.7(b).
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Credit Document shall refer to such Credit Document as a whole
and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section,
Exhibit and Schedule references are to this Credit Agreement.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, however evidenced,
whether in physical or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and the other Credit Documents are included
for convenience of reference only and shall not affect the interpretation of
this Credit Agreement or any other Credit Document.
1.3 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Credit Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Borrower's audited financial
statements for its 2001 fiscal year, except as otherwise specifically prescribed
herein.
14
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Credit Document, and either
the Borrower or the Required Lenders shall so request, the Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Agent and the Lenders financial statements and other documents
required under this Credit Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.
1.4 ROUNDING.
Any financial ratios required to be maintained by the Borrower pursuant
to this Credit Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.5 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to
organization documents, agreements (including the Credit Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Credit Document; and (b)
references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.6 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall
be references to Pacific time (daylight or standard, as applicable).
SECTION 2
THE CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Commitment. Subject to the terms and conditions of this
Credit Agreement, each Lender severally agrees to make revolving loans
("Committed Loans") to the Borrower from time to time during the period
from the date hereof to the
15
Termination Date in an aggregate principal amount not to exceed such
Lender's Commitment at any time in effect; provided, however, that (A)
with regard to each Lender individually, such Lender's Committed Loans
shall not exceed its Committed Amount and (B) with regard to the
Lenders collectively, the aggregate amount outstanding of Committed
Loans plus the aggregate amount outstanding of Competitive Loans plus
the aggregate amount outstanding of all Swingline Loans shall not
exceed the Total Committed Amount. Committed Loans may consist of Base
Rate Loans or Eurodollar Rate Loans, or a combination thereof, as the
Borrower may request, and may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Committed Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Committed Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to the Agent not later than 10:00 A.M.
(San Francisco, California time) on the Business Day of the requested
borrowing in the case of Base Rate Loans, and on the third Business Day
prior to the date of the requested borrowing in the case of Eurodollar
Rate Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Committed Loan is requested, (B) the date of
the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Rate Loans
or a combination thereof, and if Eurodollar Rate Loans are requested,
the Interest Period(s) therefor. A form of Notice of Borrowing (a
"Notice of Borrowing") is attached as Schedule 2.1(b)(i). If the
Borrower shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Rate Loan, then
such notice shall be deemed to be a request for an Interest Period of
one month, or (II) the type of Committed Loan requested, then such
notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Agent shall give notice to each Lender promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such Lender's
share thereof.
(ii) Minimum Amounts. Each Committed Loan borrowing
shall be in a minimum aggregate amount of $5,000,000 and integral
multiples of $2,000,000.
(iii) Advances. Each Lender will make its Commitment
Percentage of each Committed Loan borrowing available to the Agent for
the account of the Borrower at the office of the Agent specified in
Schedule 2.1(a), or at such other office as the Agent may designate in
writing, by 12:00 P.M. (San Francisco, California time) on the date
specified in the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Agent. Such borrowing will then be made
available to the Borrower by the Agent by crediting the account of the
Borrower on the books of such office with the aggregate of the amounts
made available to the Agent by the Lenders and in like funds as
received by the Agent.
(c) Repayment. The principal amount of all Committed Loans
shall be due and payable in full on the Termination Date.
16
(d) Interest. Subject to the provisions of Section 2.4,
Committed Loans shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as Committed
Loans shall be comprised of Base Rate Loans, the Base Rate
plus the Applicable Percentage; and
(ii) Eurodollar Rate Loans. During such periods as
Committed Loans shall be comprised of Eurodollar Rate Loans,
the sum of the Eurodollar Rate plus the Applicable Percentage.
Interest on Committed Loans shall be payable in arrears on each
Interest Payment Date.
(e) Committed Notes. The Committed Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower
to each Lender in substantially the form of Schedule 2.1(e).
2.2 COMPETITIVE LOAN SUBFACILITY.
(a) Competitive Loans. Subject to the terms and conditions of
this Credit Agreement, the Borrower may, from time to time during the
period from the date hereof to the Termination Date, request and each
Lender may, in its sole discretion, agree to make, Competitive Loans to
the Borrower; provided that the sum of the aggregate amount outstanding
of Competitive Loans plus the aggregate amount outstanding of Committed
Loans plus the aggregate amount outstanding of Swingline Loans shall
not exceed the Total Committed Amount. Each Competitive Loan shall be
in a minimum aggregate principal amount of $5,000,000 and multiples of
$2,000,000 in excess thereof.
(b) Competitive Bid Requests. The Borrower may solicit
Competitive Bids by delivery of a Competitive Bid Request substantially
in the form of Schedule 2.2(b)-1 to the Agent or each Lender by 11:00
a.m. (San Francisco, California time) on the second Business Day prior
to the date of the requested Competitive Loan borrowing. A Competitive
Bid Request shall specify (i) the date of the requested Competitive
Loan borrowing (which shall be a Business Day), (ii) the amount of the
requested Competitive Loan borrowing and (iii) the applicable Interest
Periods requested. The Agent shall, promptly following its receipt of a
Competitive Bid Request notify the Lenders of its receipt and the
contents thereof. A form of such notice is provided in Schedule
2.2(b)-2. No more than three (3) Competitive Bid Requests shall be
submitted at any one time (e.g., the Borrower may request Competitive
Bids for no more than three (3) different Interest Periods at a time)
and Competitive Bid Requests may be made no more frequently than once
every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid must be
received by the Agent not later than 8:00 A.M. (San
17
Francisco, California time) on the proposed date of borrowing. A Lender
may offer to make all or part of the requested Competitive Loan
borrowing and may submit multiple Competitive Bids in response to a
Competitive Bid Request. The Competitive Bid shall specify (i) the
particular Competitive Bid Request as to which the Competitive Bid is
submitted, (ii) the minimum (which shall be not less than $1,000,000
and integral multiples thereof) and maximum principal amounts of the
requested Competitive Loan or Loans as to which the Lender is willing
to make, and (iii) the applicable interest rate or rates and Interest
Period or Periods therefor. A form of such Competitive Bid is provided
in Schedule 2.2(c). A Competitive Bid submitted by a Lender in
accordance with the provisions hereof shall be irrevocable, absent
manifest error. In the case of each Competitive Bid auction being
administered by the Agent, the Agent shall promptly notify the Borrower
of all Competitive Bids made and the terms thereof and shall send a
copy of each of the Competitive Bids to the Borrower for its records as
soon as practicable.
(d) Submission of Competitive Bids by Agent. In the case of
each Competitive Bid auction being administered by the Agent, if the
Agent, in its capacity as a Lender, elects to submit a Competitive Bid
in response to the related Competitive Bid Request, it shall submit
such Competitive Bid directly to the Borrower one-half of an hour
earlier than the latest time at which the other Lenders are required to
submit their Competitive Bids to the Agent in response to such
Competitive Bid Request pursuant to the terms of subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its
sole and absolute discretion, subject only to the provisions of this
subsection (e), accept or reject any Competitive Bid offered to it. To
accept a Competitive Bid, the Borrower shall give written notification
(or telephone notice promptly confirmed in writing) substantially in
the form of Schedule 2.2(e) of its acceptance of any or all such
Competitive Bids. Such notification must be received by the Agent not
later than 10:00 A.M. (San Francisco, California time) on the date on
which notice of election to make a Competitive Bid is to be given by
the Lenders pursuant to the terms of subsection (c) above; provided,
however, (i) the failure by the Borrower to give timely notice of its
acceptance of a Competitive Bid shall be deemed to be a rejection
thereof, (ii) the Borrower may accept Competitive Bids only in
ascending order of rates, (iii) the aggregate amount of Competitive
Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) the Borrower may accept
a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause the Borrower to
exceed the principal amount specified in the related Competitive Bid
Request, subject however to the minimum amounts provided herein (and
provided that where two or more Lenders submit a Competitive Bid at the
same Competitive Bid Rate, then the Borrower shall accept portions of
the Competitive Bids of such Lenders on a pro rata basis based upon the
amount of the Competitive Bids of such Lenders) and (v) no bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $1,000,000 and integral multiples thereof,
except that where a portion of a Competitive Bid is accepted in
accordance with the provisions of subsection
18
(iv) hereof, then in a minimum principal amount of $100,000 and
integral multiples thereof (but not in any event less than the minimum
amount specified in the Competitive Bid), and in calculating the pro
rata allocation of acceptances of portions of multiple bids at a
particular Competitive Bid Rate pursuant to subsection (iv) hereof, the
amounts shall be rounded to integral multiples of $100,000 in a manner
which shall be in the discretion of the Borrower. A notice of
acceptance of a Competitive Bid given by the Borrower in accordance
with the provisions hereof shall be irrevocable. In the case of each
Competitive Bid auction being administered by the Agent, the Agent
shall, not later than 11:00 a.m. (San Francisco, California time) on
the date of receipt by the Agent of a notification from the Borrower of
its acceptance and/or rejection of Competitive Bids, notify each Lender
of its receipt and the contents thereof, such notification to include
the ranges of Competitive Bids submitted and the highest and lowest
Competitive Bids accepted for each Interest Period requested by the
Borrower and the aggregate amount borrowed pursuant to the applicable
Competitive Bid Request. Upon its receipt from the Agent or the
Borrower, as applicable, of notification of the Borrower's acceptance
of its Competitive Bid(s) in accordance with the terms of this
subsection (e), each successful bidding Lender will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make
a Competitive Loan shall make its Competitive Loan borrowing available
to the Agent for the account of the Borrower (in Dollars and in funds
immediately available to the Agent) at the office of the Agent
specified in Schedule 2.1(a), or at such other office as the Agent may
designate in writing, (i) in the case of same day Competitive Loan
borrowing requests, by 3:00 P.M. (San Francisco, California time) on
the date specified in the Competitive Bid Request or (ii) in all other
cases, by 12:30 P.M. (San Francisco, California time) on the date
specified in the Competitive Bid Request. Such borrowing will then be
made available to the Borrower by crediting the account of the Borrower
on the books of such office with the aggregate of the amount made
available to the Agent by the applicable Competitive Lenders and in
like funds as received by the Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall
mature and be due and payable in full on the last day of the Interest
Period applicable thereto. Unless the Borrower shall give notice to the
Agent otherwise, the Borrower shall be deemed to have requested a
Committed Loan borrowing in the amount of the maturing Competitive
Loan, the proceeds of which will be used to repay such Competitive
Loan.
(h) Interest on Competitive Loans. Subject to the provisions
of Section 2.4, Competitive Loans shall bear interest in each case at
the Competitive Bid Rate applicable thereto. Interest on Competitive
Loans shall be payable in arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans shall be
evidenced by a duly executed promissory note of the Borrower to each
Lender in an original principal
19
amount equal to the Total Committed Amount and substantially in the
form of Schedule 2.2(i).
(j) Competitive Bid Request Fee. The Borrower shall pay to the
Agent for each Competitive Bid Request a Competitive Bid administration
fee in the amount set forth in the Fee Letter concurrently with
delivery of any Competitive Bid Request (whether or not any Competitive
Bid is offered by a Lender or accepted by the Borrower and whether or
not any Competitive Loan is extended by any Lender in connection with
such Competitive Bid Request).
2.3 SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties herein
set forth, the Swingline Lender, in its individual capacity, agrees to
make certain revolving credit loans requested by the Borrower in
Dollars to the Borrower (each a "Swingline Loan" and, collectively, the
"Swingline Loans") from time to time from the Closing Date until the
Termination Date for the purposes hereinafter set forth; provided,
however, (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed FIFTEEN MILLION DOLLARS
($15,000,000.00) (the "Swingline Committed Amount"), and (ii) the
aggregate principal amount of outstanding Committed Loans plus the
aggregate principal amount outstanding of Swingline Loans plus the
aggregate principal amount outstanding of Competitive Loans shall not
exceed the Total Committed Amount. Swingline Loans hereunder shall be
made as Base Rate Loans or Quoted Rate Swingline Loans as the Borrower
may request in accordance with the provisions of this Section 2.3, and
may be repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires
a Swingline Loan advance hereunder it shall give written
notice (or telephone notice promptly confirmed in writing) to
the Swingline Lender not later than 11:00 a.m. (San Francisco,
California time) on the Business Day of the requested
Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is
requested, (B) the date of the requested Swingline Loan
advance (which shall be a Business Day) and (C) the principal
amount of the Swingline Loan advance requested. Each Swingline
Loan shall be made as a Base Rate Loan or a Quoted Rate
Swingline Loan and shall have such maturity date as the
Swingline Lender and the Borrower shall agree upon receipt by
the Swingline Lender of any such notice from the Borrower but
in no event shall the maturity of any Swingline Loan exceed 13
days. The Swingline Lender shall initiate the transfer of
funds representing the Swingline Loan advance to the Borrower
by 3:00 P.M. (San Francisco, California time) on the Business
Day of the requested borrowing.
20
(ii) Minimum Amounts. Each Swingline Loan advance
shall be in a minimum principal amount of $500,000.00 and in
integral multiples of $100,000.00 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal
amount of all Swingline Loans shall be due and payable on the
earlier of (A) the maturity date agreed to by the Swingline
Lender and the Borrower with respect to such Loan (which
maturity date shall not be a date more than thirteen (13) days
from the date of advance thereof) or (B) the Termination Date.
The Swingline Lender may, at any time, in its sole discretion,
by written notice to the Borrower and the Lenders, demand
repayment of its Swingline Loans by way of a Committed Loan,
in which case the Borrower shall be deemed to have requested a
Committed Loan comprised solely of Base Rate Loans in the
amount of such Swingline Loans; provided, however, that any
such demand shall be deemed to have been given one Business
Day prior to the Termination Date and on the date of the
occurrence of any Event of Default described in Section 6.1
and upon acceleration of the indebtedness hereunder and the
exercise of remedies in accordance with the provisions of
Section 6.2. Each Lender hereby irrevocably agrees to make its
pro rata share of each such Committed Loan in the amount, in
the manner and on the date specified in the preceding sentence
notwithstanding (I) the amount of such borrowing may not
comply with the minimum amount for advances of Committed Loans
otherwise required hereunder, (II) whether any conditions
specified in Section 3.2 are then satisfied, (III) whether a
Default or an Event of Default then exists, (IV) failure of
any such request or deemed request for Committed Loan to be
made by the time otherwise required hereunder, (V) whether the
date of such borrowing is a date on which Committed Loans are
otherwise permitted to be made hereunder or (VI) any
termination of the Commitments relating thereto immediately
prior to or contemporaneously with such borrowing. In the
event that any Committed Loan cannot for any reason be made on
the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding
under the U.S. Bankruptcy Code with respect to the Borrower),
then each Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause
each such Lender to share in such Swingline Loans ratably
based upon its Commitment Percentage of the Total Committed
Amount, provided that (A) all interest payable on the
Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective participation
is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay to the Swingline
Lender, to the extent not paid to the Swingline Lender by the
Borrower in accordance with the terms of subsection (c)(ii)
hereof, interest on the principal amount of participation
purchased for each day from and including
21
the day upon which such borrowing would otherwise have occurred to but
excluding the date of payment for such participation, at the rate equal
to the Federal Funds Rate.
(c) Interest on Swingline Loans. (i) Subject to the provisions
of Section 2.4, each Swingline Loan shall bear interest as follows:
(A) Base Rate Loans. If such Swingline Loan is a Base
Rate Loan, at a per annum rate (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal
to the Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline Loan
is a Quoted Rate Swingline Loan, at a per annum rate (computed
on the basis of the actual number of days elapsed over a year
of 360 days) equal to the Quoted Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in this
Credit Agreement, in the event that the principal amount of any Quoted
Rate Swingline Loan is not repaid on the last day of the Interest
Period for such Loan, then such Loan shall be automatically converted
into a Base Rate Loan at the end of such Interest Period.
(ii) Payment of Interest. Interest on Swingline Loans
shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified
herein).
(d) Swingline Note. The Swingline Loans shall be evidenced by
a duly executed promissory note of the Borrower to the Swingline Lender
in substantially the form of Schedule 2.3(d).
2.4 DEFAULT RATE.
Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Loan and any other overdue amount payable hereunder or under
the other Credit Documents shall bear interest, payable on demand, at a per
annum rate 2% greater than the rate which would otherwise be applicable (or if
no rate is applicable, whether in respect of interest, fees or other amounts,
then 2% greater than the Base Rate).
2.5 EXTENSION AND CONVERSION.
The Borrower shall have the option, on any Business Day prior to the
Termination Date, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another type; provided,
however, that (i) except as provided in Section 2.10, Eurodollar Rate Loans may
be converted into Base Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Rate Loans may be extended, and Base Rate
Loans may be converted into Eurodollar Rate Loans, only if no Default or Event
of Default is in existence on
22
the date of extension or conversion, (iii) Loans extended as, or converted into,
Eurodollar Rate Loans shall be subject to the terms of the definition of
"Interest Period" set forth in Section 1.1 and shall be in such minimum amounts
as provided in Section 2.1(b)(ii), (iv) any request for extension or conversion
of a Eurodollar Rate Loan which shall fail to specify an Interest Period shall
be deemed to be a request for an Interest Period of one month and (v) Swingline
Loans and Competitive Loans may not be extended or converted pursuant to this
Section 2.5. Each such extension or conversion shall be effected by the Borrower
by giving a Notice of Extension/Conversion (or telephone notice promptly
confirmed in writing) to the Agent prior to 10:00 A.M. (San Francisco,
California time) on the Business Day of, in the case of the conversion of a
Eurodollar Rate Loan into a Base Rate Loan, and on the third Business Day prior
to, in the case of the extension of a Eurodollar Rate Loan as, or conversion of
a Base Rate Loan into, a Eurodollar Rate Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall constitute a representation and warranty by the Borrower of the matters
specified in Sections 3.2(b), 3.2(c) and 3.2(d). In the event the Borrower fails
to request extension of or conversion into any Eurodollar Rate Loan in
accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then such Loans shall be automatically
converted into Base Rate Loans at the end of their Interest Period. The Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.
2.6 REDUCTIONS IN COMMITMENTS, PREPAYMENTS AND TERM OUT OPTION.
(a) Termination of Commitments Generally. The Borrower may at
any time, upon not less than five (5) Business Days' written notice to
the Agent, terminate the Commitments, in whole or in part; provided
that (i) the Commitments shall not be terminated to an amount less than
the sum of the aggregate principal amount outstanding of Competitive
Loans plus the aggregate principal amount outstanding of Committed
Loans plus the aggregate principal amount outstanding of the Swingline
Loans and (ii) partial terminations shall be in a minimum principal
amount of $5,000,000 and multiples of $2,000,000 in excess thereof.
Partial terminations in the Commitments will serve to reduce each of
the Lenders' respective Committed Amount ratably in accordance with the
provisions of Section 2.14(a). Terminations of the Commitments, in
whole or in part, pursuant to this subsection (a) are permanent and may
not be reinstated.
(b) Voluntary Prepayments. The Borrower may prepay the Loans,
in whole or in part; provided that (i) Committed Loans which are
Eurodollar Rate Loans and Competitive Loans may be prepaid only with
three (3) Business Days' prior written notice to the Agent and any such
prepayment of Committed Loans which are Eurodollar Rate Loans,
Competitive Loans and Quoted Rate Swingline Loans shall be accompanied
by any amounts owing under Section 2.13 on account thereof, and (ii)
partial prepayments shall be in a minimum principal amount of
$5,000,000 and multiples of $2,000,000 in excess thereof (or, in the
case of Swingline Loans, in a minimum principal amount of $500,000 and
multiples of $100,000 in excess thereof).
23
(c) Mandatory Prepayments. If at any time the sum of the
aggregate principal amount outstanding of Competitive Loans plus the
aggregate principal amount outstanding of Committed Loans plus the
aggregate principal amount outstanding of the Swingline Loans shall
exceed the Total Committed Amount, the Borrower shall immediately make
payment on the Loans in an amount sufficient to eliminate the
deficiency.
(d) Notice. In the case of voluntary prepayments under
subsection (b) hereof, the Borrower will give notice to the Agent of
its intent to make such a prepayment by 10:00 A.M. (San Francisco,
California time) three (3) Business Days', in the case of Committed
Loans which are Eurodollar Rate Loans and Competitive Loans, and one
(1) Business Day, in all other cases, prior to the date of prepayment.
(e) Term Out Option. If (i) the Borrower shall have delivered
to the Agent a written notice requesting an extension of the
Termination Date at least three (3) Business Days prior to July 9, 2003
and (ii) no Default or Event of Default exists on July 9, 2003, then
the Termination Date shall be extended to July 9, 2004; provided,
however, that the Commitments shall terminate on July 9, 2003, and any
amounts repaid on loans outstanding during such extension period may
not be reborrowed.
2.7 FEES.
(a) Facility Fee. The Borrower agrees to pay in immediately
available funds to the Agent (without offset or counterclaim), for the
account of the Lenders, in consideration of the Commitments hereunder,
on the last day of each calendar quarter (commencing with the first
such date after the date hereof) and on the Termination Date, a
facility fee (the "Facility Fee") equal to the Applicable Percentage
for the Facility Fee (on a per annum basis) multiplied by the Total
Committed Amount during the preceding period or quarter. The Facility
Fee shall commence to accrue as of the date hereof, and shall cease to
accrue on the Termination Date.
(b) Utilization Fee. During such periods as the aggregate
principal amount of all outstanding Loans is greater than or equal to
33% of the Total Committed Amount then in effect (or, if the term-out
option has been exercised pursuant to Section 2.6(e), the Total
Committed Amount immediately prior to such exercise) (each a
"Utilization Fee Period"), the Borrower agrees to pay in immediately
available funds to the Agent (without offset or counterclaim), for the
account of the Lenders, in consideration of the Commitments hereunder,
on the last day of each calendar quarter (commencing with the first
such date after the date hereof) and on the Termination Date, a
utilization fee (the "Utilization Fee") on the aggregate principal
amount of all Loans outstanding during each such Utilization Fee Period
computed at a rate for each day during each such period equal to the
Applicable Percentage for the Utilization Fee (on a per annum basis).
The Utilization Fee shall commence to accrue as of the date hereof, and
shall cease to accrue on the Termination Date.
24
(c) Administrative Fees. The Borrower agrees to pay to the
Agent , for its own account, the administrative and similar fees set
forth in the Fee Letter.
2.8 CAPITAL ADEQUACY.
(a) If, after the date hereof, any Lender has determined and
certified to the Agent and the Borrower that the adoption or
effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or any Person
controlling such Lender (its "parent")) with any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's (or its
parent's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender (or its
parent) could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Lender's (and its
parent's) policies with respect to capital adequacy), then, upon
written notice and certification from such Lender, the Borrower shall
pay to such Lender, without duplication, such additional amount or
amounts as will compensate such Lender (or its parent) for such
reduction; provided that no such amounts shall be payable with respect
to reduction in rate of return incurred more than 90 days before such
Lender demands compensation under this Section; and provided further
that the amount requested shall have been determined and allocated by
such Lender pro rata on all its commitments and assets affected
thereby. Each determination by any such Lender of amounts owing under
this Section shall, absent manifest error, be conclusive and binding on
the parties hereto.
(b) The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including eurocurrency funds or
deposits (currently known as "Eurocurrency liabilities"), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by
such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on
each date on which interest is payable on such Loan, provided the
Borrower shall have received at least 15 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 15 days prior to the relevant
Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.
2.9 INABILITY TO DETERMINE INTEREST RATE.
If the Required Lenders determine that for any reason adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Rate for any requested Interest Period with
25
respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Agent will promptly
so notify the Borrower and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending Notices of Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or, failing that,
will be deemed to have converted such request into a request for Base Rate Loans
in the amount specified therein.
2.10 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Rate Loans as contemplated by this Credit Agreement, (a)
such Lender shall promptly give written notice of such circumstances to the
Borrower and the Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Rate Loans, continue Eurodollar Rate Loans as such and convert a
Base Rate Loan to Eurodollar Rate Loans shall forthwith be canceled and, until
such time as it shall no longer be unlawful for such Lender to make or maintain
Eurodollar Rate Loans, such Lender shall then have a commitment only to make a
Base Rate Loan when a Eurodollar Rate Loan is requested and (c) such Lender's
Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days or the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Rate Loan occurs on a
day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.13.
2.11 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Eurodollar Rate Loans made by it or its
obligation to make Eurodollar Rate Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.12 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 2.12(b)) and changes in taxes
measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
26
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Rate Loans or to
reduce any amount receivable hereunder in respect thereof, then, in any
such case, upon notice to the Borrower from such Lender, through the
Agent, in accordance herewith, the Borrower shall promptly pay such
Lender, upon its demand and without duplication, any additional amounts
necessary to compensate such Lender for such increased cost or reduced
amount receivable, provided that in any such case, the Borrower (after
payment of all amounts due under this Section 2.11) may elect to
convert the Eurodollar Rate Loans made by such Lender hereunder to Base
Rate Loans by giving the Agent at least one Business Day's notice of
such election, in which case the Borrower shall promptly pay to such
Lender, upon demand, without duplication, such amounts, if any, as may
be required pursuant to Section 2.13. If any Lender becomes entitled to
claim any additional amounts pursuant to this Section 2.11, it shall
provide prompt notice thereof to the Borrower, through the Agent,
certifying (x) that one of the events described in this paragraph (a)
has occurred and describing in reasonable detail the nature of such
event, (y) as to the increased cost or reduced amount resulting from
such event and (z) as to the additional amount demanded by such Lender
and a reasonably detailed explanation of the calculation thereof. Such
a certificate as to any additional amounts payable pursuant to this
Section 2.11 submitted by such Lender, through the Agent, to the
Borrower shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.12 TAXES.
(a) Except as provided below in this subsection, all payments
made by the Borrower under this Credit Agreement and the Notes shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by
Governmental Authority, excluding (i) taxes measured by or imposed upon
the overall net income of any Lender or its applicable lending office,
or any branch or affiliate thereof, and all franchise taxes, branch
taxes, taxes on doing business or taxes on the overall capital or net
worth of any Lender or its applicable lending office, or any branch or
affiliate thereof, in each case imposed in lieu of net income taxes, or
(ii) any taxes arising after the Closing Date solely as a result of or
attributable to a Lender changing any applicable lending office after
the
27
date that such Lender becomes a party hereto, imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or the Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Agent or any Lender hereunder, (A) the
amounts so payable to the Agent or such Lender shall be increased to
the extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
Credit Agreement, provided, however, that the Borrower shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of Section
2.12(b) whenever any Non-Excluded Taxes are payable by the Borrower,
and (B) as promptly as possible thereafter the Borrower shall send to
the Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received
by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by the Agent or any Lender as a result of any such
failure. The agreements in this Section 2.12 shall survive the
termination of this Credit Agreement and the payment of the Loans and
all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the
Borrower under this Credit Agreement or Notes to such Lender,
deliver to the Borrower and the Agent (A) two duly completed
copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under this
Credit Agreement and any Notes without deduction or
withholding of any United States federal income taxes and (B)
an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding
tax;
(ii) deliver to the Borrower and the Agent two
further copies of any such form or certification on or before
the date that any such form or certification
28
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Agent in order to establish
the legal entitlement of such Lender to an exemption from
withholding with respect to payments under this Credit
Agreement and any Notes; or
(Y) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code,
(i) represent to the Borrower (for the benefit of the Borrower
and the Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (ii) agree to furnish to the
Borrower on or before the date of any payment by the Borrower,
with a copy to the Agent (A) a certificate substantially in
the form of Schedule 2.12 hereto (any such certificate a "U.S.
Tax Compliance Certificate") and (B) two accurate and complete
original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption
from U.S. withholding tax under the provisions of Section
881(c) of the Code with respect to payments to be made under
this Credit Agreement and any Notes (and to deliver to the
Borrower and the Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Agent for filing and completing such forms), and (iii) agree,
to the extent legally entitled to do so, upon reasonable
request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Agent) such other forms as may
be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding
with respect to payments under this Credit Agreement and any
Notes;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to it
and such Lender so advises the Borrower and the Agent. Each Person that
shall become a Lender or a Participant pursuant to Section 8.2 shall,
upon the effectiveness of the related transfer, be required to provide
all of the forms, certifications and statements required pursuant to
this Section 2.12, provided that in the case of a Participant the
obligations of such Participant pursuant to this Section 2.12(b) shall
be determined as if the Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall
have been purchased.
2.13 FUNDING LOSSES.
29
Upon demand of any Lender (with a copy to the Agent) from time to time,
the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing. For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 2.13, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the applicable offshore Dollar interbank
market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
2.14 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Committed Loans. Each Committed Loan borrowing, each
payment or prepayment of principal of any Committed Loan and each
payment of interest on the Committed Loans, each reduction of the Total
Committed Amount, and each conversion or continuation of any Loan,
shall be allocated among the relevant Lenders in accordance with the
respective applicable Commitment Percentages (or, if the Commitments of
such Lenders have expired or been terminated, in accordance with the
respective principal amounts of the outstanding Committed Loans of such
Lenders); and
(b) Advances.
(i) No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender
to fulfill its obligations hereunder shall not relieve any other Lender
of its obligations hereunder.
(ii) Unless the Borrower or any Lender has notified the Agent
prior to the date any payment is required to be made by it to the Agent
hereunder, that the Borrower or such Lender, as the case may be, will
not make such payment, the Agent may assume that the Borrower or such
Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a
corresponding
30
amount to the Person entitled thereto. If and to the extent that such
payment was not in fact made to the Agent in immediately available
funds, then:
(A) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Agent
the portion of such assumed payment that was made
available to such Lender in immediately available
funds, together with interest thereon in respect of
each day from and including the date such amount was
made available by the Agent to such Lender to the
date such amount is repaid to the Agent in
immediately available funds, at the Federal Funds
Rate from time to time in effect; and
(B) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Agent the
amount thereof in immediately available funds,
together with interest thereon for the period from
the date such amount was made available by the Agent
to the Borrower to the date such amount is recovered
by the Agent (the "Compensation Period") at a rate
per annum equal to the Federal Funds Rate from time
to time in effect. If such Lender does not pay such
amount forthwith upon the Agent's demand therefor,
the Agent shall notify the Borrower within 30 day's
of the failure of such Lender to make such amount
available to the Agent and may make a demand therefor
upon the Borrower, and the Borrower shall pay such
amount to the Agent, together with interest thereon
for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable
Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights that
the Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder. A notice of the Agent to any
Lender with respect to any amount owing under this subsection (b) shall
be conclusive, absent manifest error.
2.15 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Loans and other obligations in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of
31
setoff, banker's lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by repurchase of a participation theretofore
sold, return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or the
Agent shall fail to remit to the Agent or any other Lender an amount payable by
such Lender or the Agent to the Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Agent or such other Lender at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 2.15 applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders under this Section 2.15 to
share in the benefits of any recovery on such secured claim.
2.16 PLACE AND MANNER OF PAYMENTS.
Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any kind, at its
offices specified in Schedule 2.1(a) not later than 1:00 P.M. (San Francisco,
California time) on the date when due. Payments received after such time shall
be deemed to have been received on the next succeeding Business Day. The Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice to the Borrower). The Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to the Agent
the Loans, fees or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Lenders in such manner as the Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 2.6(c)). The Agent will distribute such payments
to the Lenders, if any such payment is received prior to 1:00 P.M. (San
Francisco, California time) on a Business Day in like funds as received prior to
the end of such Business Day and otherwise the Agent will distribute such
payment to the Lenders on the next succeeding Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day (subject
to accrual of interest and fees for the period of such extension), except that
in the case of Eurodollar Rate Loans, if the extension would cause the payment
to be made in the next following calendar month, then such payment shall instead
be made on the next preceding Business Day. All computations of interest and
fees shall be made on the basis of actual number of days elapsed over a year of
360 days; provided, however, that computations of interest at the
32
Prime Rate shall be made on the basis of actual number of days elapsed over a
365/366 day year. Interest shall accrue from and include the date of borrowing,
but exclude the date of payment.
2.17 REPLACEMENT OF LENDERS.
If any Lender delivers a notice to the Borrower pursuant to Sections
2.8, 2.10, 2.11, 2.12 or 2.14, then the Borrower shall have the right, if no
Default or Event of Default then exists, to replace such Lender (the "Replaced
Lender") with one or more additional banks or financial institutions
(collectively, the "Replacement Lender"), provided that (A) at the time of any
replacement pursuant to this Section 2.17, the Replacement Lender shall enter
into one or more assignment agreements substantially in the form of Schedule
8.2(b) pursuant to, and in accordance with the terms of, Section 8.2(b) (and
with all fees payable pursuant to said Section 8.2(b) to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all
of the rights and obligations of the Replaced Lender hereunder and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an
amount equal to the sum of (a) the principal of, and all accrued interest on,
all outstanding Loans of the Replaced Lender, and (b) all accrued, but
theretofore unpaid, fees owing to the Replaced Lender pursuant to Section 2.7,
and (B) all obligations of the Borrower owing to the Replaced Lender (including
all obligations, if any, owing pursuant to Section 2.8, 2.11 or 2.12, but
excluding those obligations specifically described in clause (A) above in
respect of which the assignment purchase price has been, or is concurrently
being paid) shall be paid in full to such Replaced Lender concurrently with such
replacement.
SECTION 3
CONDITIONS
3.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction of the following conditions (in form and substance
acceptable to the Lenders):
(a) Executed Credit Documents. Receipt by the Agent of duly
executed copies of this Credit Agreement and the Notes.
(b) No Default; Representations and Warranties. As of the
Closing Date (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained herein and in the
other Credit Documents shall be true and correct in all material
respects.
(c) Opinion of Counsel. Receipt by the Agent of an opinion, or
opinions, satisfactory to the Agent, addressed to the Agent and the
Lenders and dated as of the Closing Date substantially in the form of
Schedule 3.1(c) attached hereto.
33
(d) Corporate Documents. Receipt by the Agent of the
following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
the Borrower certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation and certified by a
secretary or assistant secretary of the Borrower to be true
and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower
certified by a secretary or assistant secretary of the
Borrower to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of the Borrower approving and adopting the Credit
Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a
secretary or assistant secretary of the Borrower to be true
and correct and in force and effect as of the Closing Date.
(vi) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to the
Borrower certified as of a recent date by the appropriate
Governmental Authorities in the State of South Carolina.
(e) Material Adverse Change. Since December 31, 2001, there
shall not have occurred, nor otherwise exist, an event or condition
which has had or would reasonably be expected to have a Material
Adverse Effect.
(f) Consents. Receipt by the Agent of a certificate from the
Borrower either (A) attaching copies of all consents, licenses and
approvals required in connection with the execution, delivery and
performance by the Borrower, and such consents, licenses and approvals
shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required.
(g) Termination of Prior Committed Facility. The Prior
Committed Facility shall have been (or will be upon initial borrowing
hereunder on the Closing Date and the application of proceeds thereof)
terminated and the obligations of the Borrower thereunder shall have
been (or will upon such borrowing and application of proceeds) paid in
full and fully satisfied.
(h) Other. Receipt by the Agent of such other documents,
agreements or information which may be reasonably requested by the
Agent or the Lenders, including without limitation evidence
satisfactory to the Agent that the Borrower's prior credit facility for
commercial paper back-up has been terminated.
34
3.2 EACH LOAN ADVANCE.
The obligation of each Lender, including the Swingline Lender, to make
any Loan, including the conversion to or extension of any Eurodollar Rate Loan,
is subject to satisfaction of the following conditions:
(a) (i) In the case of any Committed Loan, the Agent shall
have received an appropriate Notice of Borrowing or Notice of
Extension/Conversion; and (ii) in the case of any Competitive Loan, the
applicable Competitive Lender shall have received an appropriate notice
of acceptance of its related Competitive Bid;
(b) The representations and warranties set forth in Section 4
shall be true and correct on and as of the date of the making of such
Loan with the same force and effect as if made on and as of such date
(or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date);
(c) There shall not have been commenced against the Borrower
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or any case, proceeding
or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Borrower or for any substantial part of its Property or for the winding
up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged
or unbonded; and
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto.
The delivery of each Notice of Borrowing and each Notice of Extension/Conversion
relating to an extension of or conversion into Eurodollar Rate Loans and each
request for a Competitive Bid pursuant to a Competitive Bid Request and receipt
by the Borrower of the proceeds of each Loan shall constitute a representation
and warranty by the Borrower of the correctness of the matters specified in
subsections (b), (c) and (d) above.
SECTION 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Lenders as
follows:
4.1 FINANCIAL STATEMENTS.
The Borrower has furnished to the Lenders copies of (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 2001, and the related consolidated statements of income, cash flows and
common shareholders' equity for the fiscal year then ended
35
and (ii) the consolidated balance sheet of the Borrower and its Subsidiaries as
at March 31, 2002 and the related consolidated statements of income and
reinvested earnings and cash flows of the Borrower and its Subsidiaries, for the
3 months then ended. Such financial statements, including the related schedules
and notes, are complete and correct in all material respects and fairly present
the consolidated financial condition of the Borrower and its Subsidiaries at
such dates and the results of their operations for such periods, all in
accordance with GAAP applied on a consistent basis (except (i) as otherwise
stated therein or in the notes thereto and (ii) for changes resulting from audit
and normal year-end audit adjustment to the December 31, 2001 financial
statements) throughout the periods involved. As of the Closing Date, there has
not occurred or existed nor does there otherwise exist, an event or condition
which has had or would reasonably be expected to have a Material Adverse Effect
since December 31, 2001.
4.2 CORPORATE STATUS.
The Borrower is a corporation duly incorporated and organized and
validly existing in good standing in its jurisdiction of incorporation, is duly
qualified and in good standing as a foreign corporation and authorized to do
business in all other jurisdictions wherein the nature of its business or
property makes such qualification necessary, except where its failure so to
qualify would not have a Material Adverse Effect, and has full power to own its
real properties and its material personal properties and to carry on its
business as now conducted.
4.3 CORPORATE AUTHORIZATION.
The execution, delivery and performance of this Credit Agreement and of
the other Credit Documents are within the powers and authority of the Borrower
and have been duly authorized by proper corporate proceedings. This Credit
Agreement and the other Credit Documents have been duly executed and delivered
by the Borrower and constitute the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms.
4.4 NO CONFLICTS.
Neither the execution and delivery of the Credit Agreement and the
other Credit Documents, nor the consummation of the transactions contemplated
therein, nor performance of and compliance with the terms and provisions thereof
by the Borrower will (a) violate or conflict with any provision of its articles
of incorporation or bylaws, (b) violate, contravene or materially conflict with
any law, regulation (including, without limitation, Regulation U or Regulation
X), order, writ, judgment, injunction, decree or permit applicable to it, (c)
violate, contravene or materially conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which could have or might be reasonably
expected to have a Material Adverse Effect, or (d) result in or require the
creation of any Lien upon or with respect to its properties.
36
4.5 LITIGATION.
There are no actions, suits or proceedings pending or, to the best
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary in any court or arbitration or before or by any governmental
department, agency or instrumentality, domestic or foreign, which reasonably
would be expected to have a Material Adverse Effect; and neither the Borrower
nor any Subsidiary is in violation of any judgment, order, writ, injunction,
decree or award or in violation of any rule or regulation of any court or
binding arbitration or governmental department, agency or instrumentality,
domestic or foreign, the violation of which would have a Material Adverse
Effect.
4.6 GOVERNMENTAL AND OTHER APPROVALS.
No approval, consent or authorization of, or any other action by, or
filing or registration with, any governmental department, agency or
instrumentality, domestic or foreign, is necessary for the execution or delivery
by the Borrower of this Credit Agreement or the other Credit Documents or for
the performance by the Borrower of any of the terms or conditions hereof or
thereof.
4.7 USE OF LOANS.
The proceeds of the Loans will be used for: (i) commercial paper
back-up, (ii) working capital, (iii) capital expenditures and (iv) other lawful
corporate purposes; provided that no part of the proceeds of any Loan hereunder
will be used for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U or any "margin security" within the meaning of
Regulation T, or to extend credit to others for such purpose, in violation of
Regulation T, Regulation U or Regulation X issued by the Board of Governors of
the Federal Reserve System or Section 7 of the Securities Exchange Act of 1934,
as amended.
4.8 TAXES.
The Borrower has filed, or caused to be filed, all tax returns
(federal, state, local and foreign) required to be filed and paid all amounts of
taxes shown thereon to be due (including interest and penalties) and has paid
all other taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
by it, except for such taxes (a) which are not yet delinquent, (b) that are
being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP or (c) which are
promptly filed or paid upon notice to the Borrower of the existence thereof.
4.9 COMPLIANCE WITH LAW.
Each of the Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ,
37
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
4.10 ERISA.
Except as would not result in a Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred, and, to the best of the Borrower's or any ERISA
Affiliate's knowledge, no event or condition has occurred or exists as
a result of which any Termination Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan; (iii) each Single Employer Plan and, to the best
of the Borrower's or any ERISA Affiliate's knowledge, each
Multiemployer Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or
state laws; and (iv) no lien in favor or the PBGC or a Plan has arisen
or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
under each Single Employer Plan (determined within the meaning of
Section 401(a)(2) of the Code, utilizing the actuarial assumptions used
to fund such Plans), whether or not vested, did not, as of the last
annual valuation date prior to the date on which this representation is
made or deemed made, exceed the current value of the assets of such
Plan allocable to such accrued liabilities.
(c) None of the Borrower, its Subsidiaries or any ERISA
Affiliate has incurred, or, to the best of the Borrower's knowledge,
are reasonably expected to incur, any withdrawal liability under ERISA
to any Multiemployer Plan or Multiple Employer Plan. None of the
Borrower, its Subsidiaries or any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning
of Title IV of ERISA), and no Multiemployer Plan is, to the best of the
Borrower's knowledge, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject the Borrower, any of its Subsidiaries or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l)
of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower, any of its Subsidiaries or
any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
38
4.11 HAZARDOUS SUBSTANCES.
Except as would not reasonably be expected to have a Material Adverse
Effect, (i) the real property owned or leased by the Borrower and its
Subsidiaries or on which the Borrower or any of its Subsidiaries operates (the
"Subject Property") is free from "hazardous substances" as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Sections" 9601 et seq., as amended, and the regulations promulgated
thereunder, (ii) no portion of the Subject Property is subject to federal, state
or local regulation or liability because of the presence of stored, leaked or
spilled petroleum products, hazardous wastes, "PCB's" or PCB items (as defined
in 40 C.F.R. Section 763.3), underground storage tanks, "asbestos" (as defined
in 40 C.F.R. Section 763.63) or the past or present accumulation, spillage or
leakage of any such substance, (iii) the Borrower and each of its Subsidiaries
is in compliance in all material respects with all federal, state and local
requirements relating to protection of health or the environment in connection
with the operation of their businesses, and (iv) the Borrower does not know of
any complaint or investigation regarding real property which it or any of its
Subsidiaries owns or leases or on which it or any of its Subsidiaries operates.
4.12 LIENS.
Except as set forth on Schedule 4.12 attached hereto and as permitted
under Section 5.9, there are no material Liens on any Property owned by the
Borrower and its Subsidiaries (including any capital stock owned by the Borrower
or any of its Subsidiaries).
4.13 INVESTMENT COMPANY.
The Borrower is not an "investment company," or a company "controlled"
by an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
4.14 DISCLOSURE.
As of the Closing Date, the Borrower has disclosed to the Agent and the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of
the Borrower to the Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Credit Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
39
SECTION 5
COVENANTS
So long as any of the Commitments are in effect and, in any event,
until payment in full and discharge of all Obligations to the Agent and the
Lenders, including payment of all principal and interest on the Loans, the
Borrower shall comply, and shall cause each Subsidiary, to the extent
applicable, to comply, with the following covenants:
5.1 REPORTS, CERTIFICATES AND OTHER INFORMATION.
The Borrower shall furnish to the Agent:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the close of each fiscal year of the
Borrower and its Subsidiaries, either (i) written notice that a copy of
a report on Form 10-K, or any successor form, and any amendments
thereto, has been filed by the Borrower with the Securities and
Exchange Commission with respect to the immediately preceding fiscal
year, provided that in the event that an electronic copy of such report
is unavailable to either the Agent or a Lender, the Borrower shall
promptly furnish a copy of such report upon request or (ii) a
consolidated balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such fiscal year, together with related
consolidated statements of operations and retained earnings and of cash
flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Agent and whose opinion
shall be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the
audit or qualified as to the status of the Borrower and its
Subsidiaries as a going concern.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of each fiscal quarter of
the Borrower and its Subsidiaries, either (i) written notice that a
copy of a report on Form 10-Q, or any successor form, and any
amendments thereto, has been filed by the Borrower with the Securities
and Exchange Commission with respect to the immediately preceding
fiscal quarter, provided that in the event that an electronic copy of
such report is unavailable to either the Agent or a Lender, the
Borrower shall promptly furnish a copy of such report upon request or
(ii) a consolidated balance sheet and income statement of the Borrower
and its Subsidiaries, as of the end of such fiscal quarter, together
with related consolidated statements of operations and retained
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated figures for the corresponding
period of the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and reasonably
acceptable to the Agent, and accompanied by a certificate of the chief
financial officer of the Borrower to the effect that such quarterly
40
financial statements fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries and have been
prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) Officer's Certificate. Within the period for delivery of
the financial statements provided in Section 5.1(a) or (b), a
certificate of the chief financial officer of the Borrower in the form
of Schedule 5.1(c) stating among other things that, to the best of his
or her knowledge and belief, no Default or Event of Default has
occurred (or, if any Default or Event of Default has occurred,
specifying such Default or Event of Default and the nature and status
thereof).
(d) Reports. Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Agent pursuant
hereto.
(e) Notices. Upon the chief financial officer (or any other
principal financial officer) of the Borrower obtaining knowledge
thereof, prompt (and in any event within five (5) Business Days of the
relevant officer obtaining knowledge thereof, except with respect to a
Default or Event of Default, in which case within two (2) Business Days
of the relevant officer obtaining knowledge thereof) written notice to
the Agent of (i) the occurrence of an event or condition consisting of
a Default or Event of Default, specifying the nature and existence
thereof and what action the Borrower proposes to take with respect
thereto, and (ii) the occurrence of any of the following with respect
to the Borrower or any Subsidiary (A) the pendency or commencement of
any litigation, arbitral or governmental proceeding against the
Borrower or such Subsidiary which if adversely determined is likely to
have a Material Adverse Effect or (B) the institution of any
proceedings against the Borrower or such Subsidiary with respect to, or
the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal,
state or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which would likely have a Material
Adverse Effect.
(f) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Borrower and/or its Subsidiaries as the
Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section
5.1(d) (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address listed in Section 8.1; or (ii) on which such
documents are posted on the Borrower's behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Agent have access
(whether a commercial, third-
41
party website or whether sponsored by the Agent); provided that: (i) the
Borrower shall deliver paper copies of such documents to the Agent or any Lender
that requests the Borrower to deliver such paper copies until a written request
to cease delivering paper copies is given by the Agent or such Lender and (ii)
the Borrower shall notify (which may be by facsimile or electronic mail) the
Agent and each Lender of the posting of any such documents and provide to the
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the officer's certificates
required by Section 5.1(c) to the Agent and each of the Lenders. Except for such
officer's certificates, the Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
5.2 BOOKS AND RECORDS.
The Borrower shall keep, and shall cause each of its Subsidiaries to
keep, complete and accurate books and records of the Borrower's and such
Subsidiaries' transactions (i) in accordance with good accounting practices with
respect to the Borrower and its Subsidiaries and (ii) on the basis of GAAP with
respect to the Borrower and its Domestic Subsidiaries.
5.3 MERGERS AND CONSOLIDATIONS.
The Borrower shall (i) maintain its corporate existence and (ii) not
merge or consolidate with or into any other entity unless the Borrower is the
surviving corporation and no Default or Event of Default shall exist either
immediately prior to or after giving effect thereto.
5.4 INSURANCE.
The Borrower shall maintain, and shall cause each of its Subsidiaries
to maintain, insurance in such amounts and covering such risks as is consistent
with sound business practice.
5.5 PAYMENT OF TAXES.
The Borrower shall pay and discharge, and shall cause each of its
Subsidiaries to pay and discharge, all taxes, assessments and governmental
charges or levies imposed upon the Borrower or such Subsidiaries, or upon income
or profits of the Borrower or such Subsidiaries, or upon any of the properties
of the Borrower or such Subsidiaries, before they shall become delinquent;
provided, however, that neither the Borrower nor any such Subsidiary shall be
required to pay any such tax, assessment or levy which is being contested in
good faith by appropriate proceedings and as to which adequate reserves therefor
have been established in accordance with GAAP, unless the failure to make any
such payment (i) would give rise to an immediate right to foreclose on a Lien
securing such amounts or (ii) would have a Material Adverse Effect.
42
5.6 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS.
The Borrower will comply, and will cause each of its Subsidiaries to
comply, with all laws, rules, regulations and orders (including, without
limitation, Environmental Laws and ERISA), and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its property and
with all contractual obligations if noncompliance with any such law, rule,
regulation, order, restriction or contractual obligation would have or would
reasonably be expected to have a Material Adverse Effect.
5.7 USE OF PROCEEDS.
The Borrower shall use the proceeds of the Loans solely for the
purposes set forth in Section 4.7.
5.8 ASSET SALES, ETC.
The Borrower shall not sell, transfer or otherwise dispose of any of
its properties and assets (including without limitation any capital stock in any
of its Subsidiaries) except:
(i) sales or leases in the ordinary course of business; and
(ii) other than non-ordinary course of business sales provided
that (A) the aggregate net book value of the assets sold by the
Borrower or any of its Subsidiaries in all such transactions after the
Closing Date does not exceed 25% of Total Assets as of the Closing Date
and (B) no Default or Event of Default shall have occurred and be
continuing at the time of any such sale or shall result upon giving
effect thereto.
5.9 LIENS.
After the date hereof the Borrower will not issue, assume or guarantee,
and will not permit any Domestic Subsidiary to issue, assume or guarantee, any
Indebtedness which is secured by a Lien of or upon any assets, whether now owned
or hereafter acquired, of the Borrower or any such Domestic Subsidiary without
effectively providing that the Obligations (together with, if the Borrower shall
so determine, any other Indebtedness of the Borrower ranking equally with the
Obligations) shall be equally and ratably secured by a Lien ranking ratably with
and equal to (or at the Borrower's option prior to) such secured Indebtedness;
provided, however, that the foregoing restriction shall not apply to:
(i) Liens on any assets of any corporation existing at the
time such corporation becomes a Domestic Subsidiary (and not incurred
in contemplation thereof);
(ii) Liens on any assets existing at the time of acquisition
of such assets by the Borrower or a Domestic Subsidiary, or Liens to
secure the payment of all or any part of the purchase price of such
assets upon the acquisition of such assets by the Borrower or a
Domestic Subsidiary or to secure any Indebtedness incurred, assumed or
guaranteed by
43
the Borrower or a Domestic Subsidiary prior to, at the time of, or
within 180 days after such acquisition (or in the case of real
property, the completion of construction (including any improvements on
an existing asset) or commencement of full operation of such asset,
whichever is later) which Indebtedness is incurred, assumed or
guaranteed for the purpose of financing all or any part of the purchase
price thereof or, in the case of real property, construction or
improvements thereon; provided, however, that in the case of any such
acquisition, construction or improvement, the Lien shall not apply to
any assets theretofore owned by the Borrower or a Domestic Subsidiary,
other than, in the case of any such construction or improvement, any
real property on which the property so constructed, or the improvement,
is located;
(iii) Liens on any assets to secure Indebtedness of a
Subsidiary to the Borrower or to any wholly owned Domestic Subsidiary;
(iv) Liens on any assets of a corporation existing at the time
such corporation is merged into or consolidated with the Borrower or a
Domestic Subsidiary or at the time of a purchase, lease or other
acquisition of the assets of a corporation or firm as an entirety or
substantially as an entirety by the Borrower or a Domestic Subsidiary
(and not incurred in contemplation thereof);
(v) Liens on any assets of the Borrower or a Domestic
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness incurred or
guaranteed for the purpose of financing all or any part of the purchase
price (or, in the case of real property, the cost of construction) of
the assets subject to such Liens (including, but not limited to, Liens
incurred in connection with pollution control, industrial revenue or
similar financings);
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing clauses (i) to (v), inclusive; provided,
however, that the principal amount of Indebtedness secured thereby
shall not exceed the principal amount of Indebtedness so secured at the
time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of
the assets which secured the Lien so extended, renewed or replaced
(plus improvements and construction on real property);
(vii) Liens not permitted by clauses (i) through (vi) above if
at the time of, and after giving effect to, the creation or assumption
of any such Lien, the aggregate amount of all Indebtedness of the
Borrower and its Domestic Subsidiaries secured by all such Liens not so
permitted by clauses (i) through (vi) above does not exceed 10% of
Total Assets.
44
5.10 MINIMUM BOOK NET WORTH.
The Borrower shall not permit Book Net Worth to be less than
$698,700,000 (which represents approximately 85% of Book Net Worth as of March
31, 2002) as of the last day of any fiscal quarter (commencing with the fiscal
quarter ending June 30, 2002); provided, however, (i) such amount shall be
increased at the end of each fiscal quarter (commencing with the fiscal quarter
ending June 30, 2002) by an amount equal to 25% of the Borrower and its
Subsidiaries' net income for the fiscal quarter then ending (computed on a
consolidated basis in accordance with GAAP); and (ii) such amount shall be
decreased Dollar for Dollar by the aggregate cumulative amount of all payments
made by the Borrower on and after July 10, 2002 for the redemption, retirement
or other repurchase of any shares of the capital stock of the Borrower so long
as the Borrower's Long-Term Debt is rated A- or higher by S&P and A3 or higher
by Moody's at the time of such payments. If, as a result of the payments made by
the Borrower for such redemption, retirement or other repurchase of any shares
of the capital stock of the Borrower, the rating applicable to the Long-Term
Debt of the Borrower is lowered by either S&P or Moody's below the applicable
level set forth in the preceding sentence within forty-five (45) days of the
last of such payments, then any reduction in the minimum Book Net Worth amount
previously made pursuant to clause (ii) of this Section 5.10 in connection with
such payments shall be reversed.
5.11 TRANSACTIONS WITH AFFILIATES.
Except as otherwise specifically permitted in this Credit Agreement,
the Borrower will not, nor will it permit its Subsidiaries to, enter into any
transactions or series of transactions, whether or not in the ordinary course of
business, with any officer, director, shareholder or Affiliate other than on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm's length transaction with a Person other than an officer,
director, shareholder or Affiliate.
5.12 INDEBTEDNESS.
The Borrower will not permit any of its Subsidiaries to
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness of the Subsidiaries existing as of the
Closing Date as referenced in the financial statements referred to in
Section 4.1 (and set out more specifically in Schedule 5.12(b)) and
renewals, refinancings or extensions thereof in a principal amount not
in excess of that outstanding as of the date of such renewal,
refinancing or extension;
(b) Indebtedness of the Subsidiaries incurred after the
Closing Date consisting of Capital Leases or Indebtedness incurred to
provide all or a portion of the purchase price or cost of construction
of an asset provided that (i) such Indebtedness when incurred shall not
exceed the purchase price or cost of construction of such asset; (ii)
no such Indebtedness shall be refinanced for a
45
principal amount in excess of the principal balance outstanding thereon
at the time of such refinancing; and (iii) the total amount of all such
Indebtedness shall not exceed $50,000,000 at any time outstanding;
(c) unsecured intercompany Indebtedness among the Borrower and
its Subsidiaries;
(d) Indebtedness and obligations owing under hedging
agreements entered into in order to manage existing or anticipated
interest rate, exchange rate or commodity price risks and not for
speculative purposes;
(e) Indebtedness and obligations of the Subsidiaries owing
under documentary letters of credit for the purchase of goods or other
merchandise (but not under standby, direct pay or other letters of
credit) generally;
(f) Indebtedness of the Subsidiaries incurred in connection
with acquisitions provided that (i) such Indebtedness when incurred
shall not exceed the purchase price for such acquisition and (ii) if
the aggregate amount of any such Indebtedness (whether anticipated to
be funded at one time or over a series of fundings) exceeds
$100,000,000, then (A) the Borrower shall give the Agent prior written
notice of such Indebtedness and (B) prior to the incurrence of any such
Indebtedness the Borrower shall have provided to the Agent such
evidence as the Agent may reasonably request demonstrating pro forma
covenant compliance and the maintenance of an investment grade rating
from S&P and Moody's (defined for purposes hereof as BBB- or better by
S&P and Baa3 or better by Moody's) with respect to the Borrower's
Long-Term Debt; and
(g) other non-acquisition-related Indebtedness of the
Subsidiaries which does not exceed $50,000,000 in the aggregate at any
time outstanding.
SECTION 6
EVENTS OF DEFAULT
6.1 EVENTS OF DEFAULT.
Each of the following occurrences shall constitute an "Event of
Default" under this Agreement:
(A) any representation or warranty made or deemed made by the
Borrower to the Lenders in or in connection with this Credit Agreement
or any of the other Credit Documents shall prove to have been false or
misleading in any material respect when made, deemed made or furnished;
46
(B) the Borrower shall fail to pay
(i) any principal of any Note as and when the same
shall become due and payable, or
(ii) any interest on any Note, any fee or any other
Obligation as and when the same shall become due and payable,
and such failure shall continue unremedied for more than three
days;
(C) the Borrower shall fail to perform or observe any covenant
contained in Section 5.1(e), 5.7, 5.10 or 5.12 of this Credit
Agreement;
(D) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Credit Agreement or any
other Credit Document (other than as provided in Sections 6.1(B) and
(C)) on its part to be performed or observed, and such failure shall
continue unremedied for a period of 30 days after written notice
thereof has been received from the Agent or any Lender;
(E) the Borrower shall fail to pay when due, whether by
acceleration or otherwise, one or more evidences of Indebtedness (other
than the Notes hereunder) having an aggregate unpaid balance of more
than $50,000,000.00, and such failure shall continue for more than the
period of grace, if any, applicable thereto and shall not have been
waived;
(F) the Borrower or any Subsidiary shall (i) apply for or
consent to the appointment of a receiver, custodian, trustee or
liquidator of the Borrower or such Subsidiary or any of their
respective properties or assets, (ii) generally fail or admit in
writing its inability to pay its debts as they become due, (iii) make a
general assignment for the benefit of creditors, (iv) commence a
voluntary case under the Bankruptcy Code (as now or hereafter in
effect), (v) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or
composition or readjustment of debts, (vi) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against the Borrower or such Subsidiary in an involuntary case
under the Bankruptcy Code or (vii) take any corporate action for the
purpose of effecting any of the foregoing; provided, however, the
occurrence of any of the foregoing events referenced in this Section
6.1(F) with respect to any Subsidiary of the Borrower shall not
constitute an Event of Default unless such occurrence could have or
might be reasonably expected to have a Material Adverse Effect;
(G) a proceeding or case shall be commenced, without the
application or consent of the Borrower or any Subsidiary, in any court
of competent jurisdiction seeking (i) its liquidation, reorganization,
dissolution or winding-up or the composition or readjustment of its
debts, (ii) the appointment of a trustee, receiver, custodian or
liquidator of the Borrower or such Subsidiary or of all or any
substantial part of its assets or (iii) similar relief in respect of
the Borrower or such Subsidiary under any law relating
47
to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 days; or an order for relief against the Borrower or
such Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; provided, however, the occurrence of any of the
foregoing events referenced in this Section 6.1(G) with respect to any
Subsidiary of the Borrower shall not constitute an Event of Default
unless such occurrence could have or might be reasonably expected to
have a Material Adverse Effect;
(H) any of the following events or conditions, which in the
aggregate, reasonably could be expected to involve possible taxes,
penalties, and other liabilities in an aggregate amount in excess of
$50,000,000.00: (1) any "accumulated funding deficiency," as such term
is defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, shall exist with respect to any Plan, or any lien shall
arise on the assets of the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate in favor of the PBGC or a Plan; (2) a Termination
Event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) a
Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Agent, likely to result in (i) the termination of such Plan for
purposes of Title IV of ERISA, or (ii) the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency or (within the meaning
of Section 4245 of ERISA) such Plan; or (4) any prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the
Code) or breach of fiduciary responsibility shall occur which may
subject the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l)
of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability;
(I) any final judgment, final consent decree or final order
for the payment of money (or for the performance of any remedial action
or other services that would result in the expenditure of funds by the
Borrower or any of its Subsidiaries) shall be rendered against the
Borrower or any of its Subsidiaries by any federal, state or local
court or administrative agency and the same shall fail to be
discharged, stayed or bonded for a period of 60 days after such final
judgment, final consent decree or final order for the payment of money
(or, in the case of performance obligations, shall fail to be performed
in the manner and at the times required in such final judgment, final
consent decree or final order or shall fail to otherwise be discharged,
stayed or bonded, in any such case, for a period of 60 days after the
performance of such obligations is required), provided that no
occurrence described in this Section 6.1(I) shall constitute an Event
of Default unless the aggregate outstanding liability of the Borrower
and its Subsidiaries which has resulted
48
from all such occurrences shall exceed $50,000,000.00 or its equivalent
in any other currency);
(J) (i) a "person" or a "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of more than 35% of the then
outstanding voting stock of the Borrower or (ii) during any period of
up to 24 consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 24 month period were directors
of the Borrower (together with any new director whose election by the
Borrower's board of directors or whose nomination for election by the
Borrower's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office; or
(K) any Credit Document shall fail to be in full force and
effect or to give the Agent and/or the Lenders the rights, powers and
privileges purported to be created thereby and such failure shall have
a material adverse effect on the rights and remedies of the Agent or
the Lenders thereunder (except to the extent any such failure is caused
by the Agent and except as such documents may be terminated or no
longer in force and effect in accordance with the terms thereof, other
than those indemnities and provisions which by their terms shall
survive) or the Borrower or any Person acting by or on behalf of the
Borrower shall deny or disaffirm any obligations under the Credit
Documents.
6.2. RIGHTS AND REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
or cured to the satisfaction of the Required Lenders (pursuant to the voting
procedures in Section 8.6), the Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Borrower take any of the
following actions without prejudice to the rights of the Agent or any Lender to
enforce its claims against the Borrower:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
Obligations to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under this Credit Agreement and the
other Credit Documents and all rights of set-off.
49
Notwithstanding the foregoing, in the case of an Event of Default
specified in Section 6.1(F) or (G) relating to the Borrower, the respective
Commitment of each Lender shall be immediately terminated and the Notes,
including all interest thereon, and all other Obligations shall be immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived by the Borrower.
SECTION 7
AGENCY PROVISIONS
7.1 APPOINTMENT AND AUTHORIZATION OF AGENT.
Each Lender hereby irrevocably (subject to Section 7.9) appoints,
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Credit Agreement and each other Credit Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Credit Agreement or any other Credit Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Credit Document, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or any other Credit Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Credit Documents with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
7.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties under this Credit Agreement or
any other Credit Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
7.3 LIABILITY OF AGENT.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Credit
Agreement or any other Credit Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or warranty
made by the
50
Borrower or any officer thereof, contained herein or in any other Credit
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Credit Agreement or any other Credit Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Credit Agreement or any other
Credit Document, or for any failure of the Borrower or any other party to any
Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Credit Agreement or any other
Credit Document, or to inspect the properties, books or records of the Borrower
or any Affiliate thereof.
7.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under any Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Credit Agreement or any other Credit Document in accordance
with a request or consent of the Required Lenders or all the Lenders, if
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and participants. Where
this Credit Agreement expressly permits or prohibits an action unless the
Required Lenders otherwise determine, the Agent shall, and in all other
instances, the Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 3.1, each Lender that has signed this Credit Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
7.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the Agent
for the account of the Lenders, unless the Agent shall have received written
notice from a Lender or the Borrower referring to this Credit Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default."
51
The Agent will notify the Lenders of its receipt of any such notice. The Agent
shall take such action with respect to such Default or Event of Default as may
be directed by the Required Lenders in accordance with Section 6; provided,
however, that unless and until the Agent has received any such direction, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Lenders.
7.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Agent hereinafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of the Borrower or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the Agent
that it has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower and
its respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Credit Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent herein, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
7.7 INDEMNIFICATION OF AGENT.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the
52
foregoing, each Lender shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) 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 Credit Agreement, any other
Credit Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
aggregate Commitments, the payment of all other Obligations and the resignation
of the Agent.
7.8 AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and its respective Affiliates as though Bank
of America were not the Agent hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding the Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge that the
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers
under this Credit Agreement as any other Lender and may exercise such rights and
powers as though it were not the Agent, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
7.9 SUCCESSOR AGENT.
The Agent may resign as Agent upon 30 days' notice to the Lenders. If
the Agent resigns under this Credit Agreement, the Required Lenders shall
appoint from among the Lenders a successor Agent for the Lenders which successor
Agent shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor Agent is appointed prior to
the effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Lenders and the Borrower, a successor Agent from among the
Lenders. Upon the acceptance of its appointment as successor Agent hereunder,
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor Agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 7 and Sections 8.7, 8.10 and 8.14 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Credit Agreement. If no successor Agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective and
the Lenders shall perform all of the duties of the Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.
53
7.10 AGENT MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower, the Agent (irrespective of whether
the principal of any Loan shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents
as may be necessary or advisable in order to have the claims of the
Lenders and the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and
the Agent and their respective agents and counsel and all other amounts
due the Lenders and the Agent under Sections 2.7 and 8.4) allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Agent and, in the event that the Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 2.7 and 8.4.
Nothing contained herein shall be deemed to authorize the Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Agent to vote in respect of the
claim of any Lender in any such proceeding.
7.11 OTHER AGENTS; LEAD MANAGERS.
None of the Lenders identified on the facing page or signature pages of
this Credit Agreement as a "syndication agent," "documentation agent,"
"co-agent" or "lead manager" shall have any right, power, obligation, liability,
responsibility or duty under this Credit Agreement other than those applicable
to all Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Credit Agreement
or in taking or not taking action hereunder.
54
SECTION 8
MISCELLANEOUS
8.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower and the Agent, set forth below, and in
the case of the Lenders, set forth on Schedule 2.1(a), or at such other address
as such party may specify by written notice to the other parties hereto:
if to the Borrower:
Sonoco Products Company
One North Second Street
Hartsville, SC 29550
Attn: Charles J. Hupfer
Telephone: (843) 383-7179
Telecopy: (843) 383-7066
www.sonoco.com
if to the Agent:
Agent's Office
--------------
(for payments and Requests for Borrowing and payments):
Bank of America, N.A.
1850 Gateway Boulevard
CA4 706 05 09
Concord, CA 94520
Attention: Mark Garcia
Telephone: 925-675-8416
Facsimile: 888-969-2297
mark.a.garcia@bankofamerica.com
Payment Instructions:
---------------------
Bank of America - Concord
ABA No.: 111000012
Credit Account No.: 3750836479
55
Attn: Mark Garcia, Agency Service West
Ref.: Sonoco Corporation
Other Notices as Agent:
----------------------
Bank of America, N.A.
Agency Management
1455 Market Street
CA5 701 05 19
San Francisco, CA 94103
Attention: M. Josefa Prosperi
Agency Management Officer
Telephone: 415-436-3496
Facsimile: 415-503-5127
mariajosefa.prosperi@bankofamerica.com
if to Swingline Lender:
Bank of America, N.A.
1850 Gateway Boulevard
CA4 706 05 09
Concord, CA 94520
Attention: Mark Garcia
Telephone: 925-675-8416
Facsimile: 888-969-2297
mark.a.garcia@bankofamerica.com
Payment Instructions:
---------------------
Bank of America - Concord
ABA No.: 111000012
Credit Account No.: 3750836479
Attn: Mark Garcia, Agency Service West
Ref.: Sonoco Corporation
8.2 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Credit Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly
56
contemplated hereby, the Agent-Related Persons) any legal or equitable right,
remedy or claim under or by reason of this Credit Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement (including all
or a portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in Swingline Loans) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent or, if "Trade Date" is
specified in the Assignment and Acceptance, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed), (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Credit Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of outstanding Swingline Loans, (iii) any
assignment of a Commitment must be approved by the Agent and Swingline Lender
unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee), and
(iv) the parties to each assignment shall execute and deliver to the Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Credit
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Credit Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Credit Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 8.4, 8.10 and 8.14 with
respect to the facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver new or replacement Notes to the assigning Lender and the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Credit Agreement that does not comply with this subsection shall be treated
for purposes of this Credit Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its office in Charlotte, North Carolina a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in
57
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Credit Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower
or the Agent, sell participations to any Person (other than a natural person or
the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitment and/or
the Loans (including such Lender's participations the Swingline Loans) owing to
it); provided that (i) such Lender's obligations under this Credit Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Credit Agreement and to approve any
amendment, modification or waiver of any provision of this Credit Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver or
other modification that would (i) postpone any date upon which any payment of
money is scheduled to be paid to such Participant, (ii) reduce the principal,
interest, fees or other amounts payable to such Participant or (iii) release all
or substantially all of the Guarantors from their obligations under the Credit
Documents. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.8, 2.11, 2.12
and 2.13 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section.
(e) A Participant shall not be entitled to receive any greater payment
under Section 2.8, 2.11 and 2.12 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.12 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.12
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Credit Agreement (including under
its Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Lender; provided that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum
58
assignment threshold specified in clause (i) of the proviso to the first
sentence of Section 8.2(b), the Borrower shall be deemed to have given its
consent five Business Days after the date notice thereof has been delivered by
the assigning Lender (through the Agent) unless such consent is expressly
refused by the Borrower prior to such fifth Business Day.
(h) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may upon 5 Business Days' notice to the
Borrower, resign as Swingline Lender. In the event of any such resignation as
Swingline Lender, the Borrower shall be entitled to appoint from among the
Lenders a successor Swingline Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as Swingline Lender, as the case may be. If Bank
of America resigns as Swingline Lender, it shall retain all the rights of the
Swingline Lender provided for hereunder with respect to Swingline Loans made by
it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Loans or fund participations in
outstanding Swingline Loans pursuant to Section 2.3.
(i) (i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Designating Lender") may grant to one or more special
purpose funding vehicles (each, an "SPV"), identified as such in
writing from time to time by the Designating Lender to the Agent and
the Borrower, the option to provide to the Borrower all or any part of
any Loan that such Designating Lender would otherwise be obligated to
make to the Borrower pursuant to this Credit Agreement; provided that
(A) nothing herein shall constitute a commitment by any SPV to make any
Loan, (B) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Designating Lender
shall be obligated to make such Loan pursuant to the terms hereof, (C)
the Designating Lender shall remain liable for any indemnity or other
payment obligation with respect to its Commitments hereunder and (D)
each such SPV would satisfy the requirements of Section 2.12 if such
SPV was a Lender hereunder. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Designating Lender to the same
extent as a Loan made by, and as if such Loan were made by, such
Designating Lender.
(ii) As to any Loans or portion thereof made by it,
each SPV shall have all the rights that a Lender making such
Loans or portion thereof would have had under this Credit
Agreement; provided, however that each SPV shall have granted
to its Designating Lender an irrevocable power of attorney, to
deliver and receive all communications and notices under this
Credit Agreement (and any related documents), including,
without limitation, any Notice of Borrowing and any Notice of
Extension/Conversion, and to exercise on such SPV's behalf,
all of such SPV's voting rights under this Credit Agreement.
No additional Note shall be required to evidence the Loans or
portion thereof made by an SPV; and the related Designating
Lender shall be deemed to hold its Note as agent for such SPV
to the extent of the Loans or portion thereof funded by such
SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV.
59
(iii) Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or payment under this Credit
Agreement for which a Lender would otherwise be liable for so
long as, and to the extent, the Designating Lender provides
such indemnity or makes such payment. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Credit Agreement) that,
prior to the date that is one year and one day after the
payment in full of all outstanding prior indebtedness of any
SPV, it will not institute against, or join any other person
in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the
United States or any State thereof.
(iv) In addition, notwithstanding anything to the
contrary contained in this Section 8.3 or otherwise in this
Credit Agreement, any SPV may (A) at any time and without
paying any processing fee therefor, assign or participate all
or a portion of its interest in any Loans to the Designating
Lender (or to any other SPV of such Designating Lender) or to
any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the
funding or maintenance of Loans and (B) disclose on a
confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity
enhancements to such SPV. This Section 8.3 may not be amended
without the written consent of any Designating Lender affected
thereby.
8.3 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Borrower, the Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower and the Agent or
any Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Agent or the Lenders to any other or further action in any circumstances
without notice or demand.
8.4 ATTORNEY COSTS, EXPENSES AND TAXES.
The Borrower agrees (a) to pay or reimburse the Agent for all
reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Credit Agreement and the other
Credit Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
60
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Agent and each Lender for all reasonable costs
and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other
Credit Documents (including all such costs and expenses incurred during any
"workout" or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all
Attorney Costs. The foregoing costs and expenses shall include all reasonable
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by the Agent
and the cost of independent public accountants and other outside experts
retained by the Agent or any Lender. All amounts due under this Section 8.4
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Commitments and repayment
of all other Obligations.
8.5 INDEMNIFICATION BY BORROWER.
Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees, counsel,
agents and attorneys-in-fact (collectively the "Indemnitees") from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Credit Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment, Loan or the use or proposed use of the proceeds
therefrom, or (c) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the "Borrower Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available (y) to the extent that
such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee and
(z) with respect to a dispute among two or more Indemnitees which does not arise
as a result of the action or inaction of the Borrower. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Credit Agreement, nor shall any
Indemnitee have any liability for any indirect or consequential damages relating
to this Credit Agreement or any other Credit Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). Nothing contained in this Section 8.5 shall be deemed to restrict
the Borrower's right to pursue any and all legal remedies available to the
Borrower for breach of any representation, covenant, warranty or other agreement
set forth in any
61
Credit Document. All amounts due under this Section 8.5 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.
8.6 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Credit Agreement or any
other Credit Document, and no consent to any departure by the Borrower
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Borrower, as the case may be, and acknowledged by the Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 3.2(a), (c), (d), (e), (f)
and (g) without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 6.2 without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Credit
Document for any payment (including mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them hereunder or
under any other Credit Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or (subject to clause (iv) of the second proviso to this Section
8.6 any fees or other amounts payable hereunder or under any other Credit
Document, without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to waive any obligation of the Borrower to pay the default increase in
interest rates;
(e) change Section 2.15 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Swingline Lender in addition to the Lenders required
above, affect the rights or duties of the Swingline Lender under this Credit
Agreement; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above, affect the rights
or duties of the Agent under this Credit Agreement or any other Credit Document;
(iii) Section 8.2(i) may not be amended, waived or otherwise modified without
the
62
consent of each Designating Lender all or any part of whose Loans are being
funded by an SPV at the time of such amendment, waiver or other modification;
and (iv) the Fee Letter may be amended, or rights or privileges thereunder
waived, in a writing executed only by the parties thereto. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender.
8.7 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, the Borrower
shall, at the expense of the Lenders (or, after the occurrence (and during the
continuance) of an Event of Default, at the expense of the Borrower), permit
representatives appointed by the Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Agent or its representatives to
investigate and verify the accuracy of information provided to the Lenders and
to discuss all such matters with the officers, employees and representatives of
the Borrower.
8.8 CONFIDENTIALITY.
Each of the Agent and the Lenders agrees to use commercially reasonable
efforts to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed with it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors; (b) to the extent
requested by any regulatory authority; (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process; (d) to any
other party to this Credit Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Credit
Agreement or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible Assignee
of or Participant in, any of its rights or obligations under this Credit
Agreement or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective counterparty's
professional advisor) to any credit derivative transaction relating to
obligations of the Borrower; (g) with the consent of the Borrower; (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Agent or any Lender on
a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that
63
is available to the Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
in writing at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
8.9 COUNTERPARTS; TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart. Delivery by facsimile by any of the parties hereto of an
executed counterpart of this Credit Agreement shall be as effective as an
original executed counterpart hereof and shall be deemed a representation that
an original executed counterpart hereof will be delivered.
8.10 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
8.11 SURVIVAL OF INDEMNIFICATION.
All indemnities set forth herein, including, without limitation, in
Sections 2.8, 2.11, 2.12, 2.13 and 8.5 shall survive the execution and delivery
of this Credit Agreement, and the making of the Loans, the repayment of the
Loans and other obligations and the termination of the Commitment hereunder.
8.12 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action or proceeding
with respect to this Credit Agreement or any other Credit Document may
be brought in the courts of the State of North Carolina in Mecklenburg
County, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement, each
party hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of such
courts.
64
(b) EACH PARTY TO THIS CREDIT AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION ARISING UNDER ANY CREDIT DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS CREDIT AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(c) EACH OF THE AGENTS, EACH OF THE LENDERS AND THE BORROWER
HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
8.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
8.14 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
8.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by the Borrower herein shall
survive delivery of the Notes and the making of the Loans hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
65
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: SONOCO PRODUCTS COMPANY
By
----------------------------------
Title
-------------------------------
Signature Page to July 2002
Sonoco Products Company
Credit Agreement
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Agent
By
------------------------------------------
Title
---------------------------------------
Signature Page to July 2002
Sonoco Products Company
Credit Agreement
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender
By
------------------------------------------
Title
---------------------------------------
Signature Page to July 2002
Sonoco Products Company
Credit Agreement
Schedule 2.1(a)
Schedule of Lenders and
Commitments
Commitment
Lender Committed Amount Percentage
------ ---------------- ----------
Bank of America, N.A. $47,500,000.00 10.5555556%
555 California Street, 12th floor
San Francisco, CA 94104
Attn: Thomas Sullivan
Telephone: (415) 622-3482
Telecopier: (415) 622-4584
thomas.r.sullivan@bankofamerica.com
Bank of Tokyo-Mitsubishi Trust Company $47,500,000.00 10.5555556%
1251 Avenue of the Americas
New York, NY 10020-1104
Attn: Lillian Kim
Telephone: (212) 782-4225
Telecopier: (212) 782-6440
lkim@btmna.com
Deutsche Bank AG New York Branch $47,500,000.00 10.5555556%
31 West 52nd Street
New York, NY 10010
Attn: Christian Dallwitz
Telephone: (212) 469-8625
Telecopier: (212) 469-2930
SunTrust Bank $47,500,000.00 10.5555556%
303 Peachtree Street, 2nd Floor
Atlanta, GA 30309
Attn: Nathan Bickford
Telephone: (404) 658-4219
Telecopier: (404) 588-8833
nathan.bickford@suntrust.com
Wachovia Bank, National Association $47,500,000.00 10.5555556%
191 Peachtree Street
Atlanta, GA 30303
Attn: Meg Beveridge
Telephone: (404) 332-6576
Telecopier: (404) 332-4058
meg.beveridge@wachovia.com
Citicorp USA, Inc. $37,500,000.00 8.3333333%
400 Perimeter Center Terrace,
Suite 600
Atlanta, GA 30346
Attn: Stanley K. Ross
Telephone: (770) 668-8107
Telecopier: (770) 668-8137
stanley.k.ross@citigroup.com
Bank of Montreal $37,500,000.00 8.3333333%
111 W. Monroe
Chicago, IL 60603
Attn: Isabella Battista
Telephone: (312) 293-8358
Telecopier: (312) 293-5852
isabella.battista@bmo.com
Schedule 2.1(a)
Schedule of Lenders and
Commitments
Credit Suisse First Boston $37,500,000.00 8.3333333%
Eleven Madison Avenue
New York, NY 10010
Attn: James P. Moran
Telephone: (212) 325-5352
Telecopier: (212) 325-8615
james.moran@csfb.com
Banco Bilbao Vizcaya Argentaria S.A. $25,000,000.00 5.5555556%
1345 Avenue of the Americas, 45th
Floor
New York, NY 10105
Attn: Miguel Lara
Telephone: (212) 728-1664
Telecopier: (212) 333-2904
miguel.lara@bbvany.com
JP Morgan Chase Bank $25,000,000.00 5.5555556%
270 Park Avenue, 21st Floor
New York, NY 10071
Attn: Peter Predun
Telephone: (212) 270-7005
Telecopier: (212) 270-4725
peter.predun@jpmorgan.com
The Bank of New York $25,000,000.00 5.5555556%
One Wall Street, 22nd Floor
New York, NY 10288
Attn: David Siegel
Telephone: (212) 635-6899
Telecopier: (212) 635-6434
State Street Bank and Trust Company $25,000,000.00 5.5555556%
225 Franklin Street, Suite MAO 18
Boston, MA 02110-2804
Attn: Elizabeth F. Ryan-Catalano
Telephone: (617) 664-4056
Telecopier: (617) 728-3078
eryancatalano@statestreet.com
TOTAL: $450,000,000.00 100.0000000%
Schedule 2.1(b)(i)
FORM OF NOTICE OF BORROWING
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th floor
Concord, CA 94520-3281
Attention: Mark Garcia
Ladies and Gentlemen:
The undersigned, SONOCO PRODUCTS COMPANY (the "Borrower"), refers to
the Credit Agreement dated as of July 10, 2002 (as amended and modified, from
time to time, the "Credit Agreement"), among the Borrower, the Lenders and Bank
of America, N.A., as Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The Borrower hereby gives notice(1) that it requests a Committed Loan
borrowing pursuant to the provisions of Section 2.1(b) of the Credit Agreement
and in connection herewith sets forth below the terms on which such borrowing is
requested to be made:
(A) Date of Borrowing
(which is a Business Day) _______________________
(B) Principal Amount of
Borrowing(2) _______________________
(C) Interest rate basis(3) _______________________
(D) Interest Period and the
last day thereof(4) _______________________
In accordance with the requirements of Section 3.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
- --------
1 Notice must be received by the Agent not later than 10:00 A.M.
(San Francisco, California time) on the Business Day of the
requested borrowing in the case of Base Rate Loans, and on the
third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Rate Loans.
2 A minimum of $5,000,000 and increments of $2,000,000.
3 Eurodollar Rate and Base Rate Loans available.
4 Interest Periods of one, two, three and six months' duration
for Eurodollar Rate Loans.
SCHEDULE 2.1(e)
FORM OF COMMITTED NOTE
July 10, 2002
FOR VALUE RECEIVED, SONOCO PRODUCTS COMPANY, a South Carolina
corporation (the "Borrower"), hereby promises to pay to the order of
__________________________, its successors and assigns (the "Lender"), at the
office of Bank of America, N.A., as Agent (the "Agent"), at 1850 Gateway
Boulevard, Concord, California 94520-3281 (or at such other place or places as
the holder hereof may designate) at the times set forth in the Credit Agreement
dated as of July 10, 2002 among the Borrower, the Lenders and the Agent (as it
may be amended and modified from time to time, the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement), but in no event later than the Termination Date, in
Dollars and in immediately available funds, the aggregate unpaid principal
amount of all Committed Loans made by the Lender to the Borrower pursuant to the
Credit Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates selected in accordance with Section 2.1(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section 2.4
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note and
all other indebtedness owing to the Lender under the Credit Documents shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees;
provided that such attorneys' fees shall be based on the actual amount of time
expended in connection with such matters at the usual hourly rates of such
attorneys, notwithstanding the provisions of N.C. Gen. Stat. Section 6-21.2.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
Schedule 2.2(b)-1
FORM OF COMPETITIVE BID REQUEST
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th floor
Concord, CA 94520-3281
Attention: Mark Garcia
Ladies and Gentlemen:
The undersigned, SONOCO PRODUCTS COMPANY (the "Borrower"), refers to the
Credit Agreement dated as of July 10, 2002 (as amended and modified from time to
time, the "Credit Agreement"), among the Borrower, the Lenders and Bank of
America, N.A., as Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice(1) pursuant to Section 2.2(b) of the Credit
Agreement it requests solicitation of Competitive Bids under the Credit
Agreement, and in connection herewith sets forth below the terms on which such
Competitive Loan borrowing is requested to be made:
(A) Date of Competitive Loan Borrowing
(which is a Business Day) __________________
(B) Principal Amount of
Competitive Loan Borrowing(2) __________________
(C) Interest Period and the last
day thereof(3) __________________
- --------
1 Notice must be received by the Agent by 11:00 a.m. (San
Francisco, California time) on the second Business Day prior
to the date of the requested Competitive Loan borrowing .
2 A minimum of $5,000,000 and $2,000,000 increments in excess
thereof.
3 Subject to the provisions and definitions of the Credit
Agreement, but generally not less than 7 days nor more than
180 days.
In accordance with the requirements of Section 3.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
Schedule 2.2(b)-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of July 10, 2002 (as
amended and modified from time to time, the "Credit Agreement"), among SONOCO
PRODUCTS COMPANY (the "Borrower"), the Lenders and Bank of America, N.A., as
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower made a
Competitive Bid Request on _____________, 20__, pursuant to Section 2.2(b) of
the Credit Agreement, and in that connection you are invited to submit a
Competitive Bid by 8:00 A.M. (San Francisco, California time) ______________,
20__ [Date of Proposed Competitive Loan borrowing] Your Competitive Bid must
comply with Section 2.2(c) of the Credit Agreement and the terms set forth below
on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing __________________
(B) Principal amount of
Competitive Borrowing __________________
(C) Interest Period and the last
day thereof __________________
Very truly yours,
BANK OF AMERICA, N.A., as Agent
By
-----------------------------
Name
--------------------------
Title
-------------------------
Schedule 2.2(c)
FORM OF COMPETITIVE BID
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th floor
Concord, CA 94520-3281
Attention: Mark Garcia
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Credit Agreement dated
as of July 10, 2002 (as amended and modified from time to time, the "Credit
Agreement"), among SONOCO PRODUCTS COMPANY (the "Borrower"), the Lenders and
Bank of America, N.A., as Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The undersigned hereby makes a Competitive Bid pursuant to Section
2.2(c) of the Credit Agreement, in response to the Competitive Bid Request made
by the Borrower on ________________, 20__, and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Principal Amount(1) ____________________
(B) Competitive Bid Rate ____________________
(C) Interest Period and last
day thereof ____________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.2(e) of
the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By
----------------------------
Name
--------------------------
Title
-------------------------
- --------
1 Acceptance in a minimum principal amount of $1,000,000 and
$1,000,000 increments in excess thereof.
Schedule 2.2(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th floor
Concord, CA 94520-3281
Attention: Mark Garcia
Ladies and Gentlemen:
The undersigned, SONOCO PRODUCTS COMPANY (the "Borrower"), refers to
the Credit Agreement dated as of July 10, 2002 (as amended and modified from
time to time, the "Credit Agreement"), among the Borrower, the Lenders and Bank
of America, N.A., as Agent.
In accordance with Section 2.2(d) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
______________, 20__ and in accordance with Section 2.2(e) of the Credit
Agreement, we hereby accept the following bids for maturity on [date](1):
Interest
Principal Amount Competitive Bid Rate Paid Lender
- ---------------- -------------------- ---- ------
$ [%]
$ [%]
We hereby reject the following bids:
Interest
Principal Amount Competitive Bid Rate Paid Lender
- ---------------- -------------------- ---- ------
$ [%]
$ [%]
The Competitive Loans accepted as provided above should be deposited in
the general deposit account maintained by the Borrower with Bank of America,
N.A. on [date].
Very truly yours,
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
- --------
1 Acceptance must be received by 10:00 A.M. (San Francisco,
California time) on the date on which notice of election to
make a Competitive Bid is to be given by the Lenders.
SCHEDULE 2.2(i)
FORM OF COMPETITIVE NOTE
July 10, 2002
FOR VALUE RECEIVED, SONOCO PRODUCTS COMPANY, a South Carolina
corporation (the "Borrower"), hereby promises to pay to the order of
__________________________, its successors and permitted assigns (the "Lender"),
at the office of Bank of America, N.A., as Agent (the "Agent"), at 1850 Gateway
Boulevard, Concord, California 94520-3281 (or at such other place or places as
the holder hereof may designate) at the times set forth in the Credit Agreement
dated as of July __, 2002 among the Borrower, the Lenders and the Agent (as it
may be amended and modified from time to time, the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement), or in the Competitive Bid provided by Lender to the
Borrower, but in no event later than the Termination Date, in Dollars and in
immediately available funds, the aggregate unpaid principal amount of all
Competitive Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
selected in accordance with Section 2.2(h) of the Credit Agreement and in the
respective Competitive Bid applicable to each Competitive Loan borrowing
evidenced hereby.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section 2.4
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note and
all other indebtedness owing to the Lender under the Credit Documents shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees;
provided that such attorneys' fees shall be based on the actual amount of time
expended in connection with such matters at the usual hourly rates of such
attorneys, notwithstanding the provisions of N.C. Gen. Stat. Section 6-21.2.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
SCHEDULE 2.3(d)
FORM OF SWINGLINE NOTE
July 10, 2002
FOR VALUE RECEIVED, SONOCO PRODUCTS COMPANY, a South Carolina
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A., its successors and registered assigns (the "Swingline Lender"),
at the office of Bank of America, N.A., as Agent (the "Agent"), at 1850 Gateway
Boulevard, Concord, California 94520-3281 (or at such other place or places as
the holder hereof may designate) at the times set forth in the Credit Agreement
dated as of the date hereof among the Borrower, the Swingline Lender and other
Lenders and the Agent (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"; all capitalized terms not otherwise
defined herein shall have the meanings set forth in the Credit Agreement), but
in no event later than the Termination Date, in Dollars and in immediately
available funds, the aggregate unpaid principal amount of all Swingline Loans
made by the Swingline Lender to the Borrower pursuant to the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates selected in
accordance with Section 2.3(c) of the Credit Agreement .
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section 2.4
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Swingline Lender shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
This Note and the Loans evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained by or
on behalf of the Borrower as provided in Section 8.2 of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
SONOCO PRODUCTS COMPANY
By
-------------------------
Name
-----------------------
Title
----------------------
Schedule 2.5
FORM OF NOTICE OF CONVERSION OR EXTENSION
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th floor
Concord, CA 94520-3281
Attention: Mark Garcia
Ladies and Gentlemen:
The undersigned, SONOCO PRODUCTS COMPANY (the "Borrower"), refers to the
Credit Agreement dated as of July 10, 2002 (as amended and modified from time to
time, the "Credit Agreement"), among the Borrower, the Lenders and Bank of
America, N.A., as Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives notice(1) pursuant to Section 2.5 of the Credit
Agreement that it requests an extension or conversion of a Committed Loan
outstanding under the Credit Agreement, and in connection herewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which, with regard to Eurodollar Rate
Loans, is the last day of the
the applicable Interest Period) _______________________
(B) Principal Amount of
Extension or Conversion(2) _______________________
(C) Interest rate basis(3) _______________________
(D) Interest Period and the
last day thereof(4) _______________________
- --------
1 This Notice of Extension/Conversion (or telephone notice
promptly confirmed in writing) must be delivered to the Agent
prior to 10:00 A.M. (San Francisco, California time) on the
Business Day of, in the case of the conversion of a Eurodollar
Rate Loan into a Base Rate Loan, and on the third Business Day
prior to, in the case of the extension of a Eurodollar Rate
Loan as, or conversion of a Base Rate Loan into, a Eurodollar
Rate Loan, the date of the proposed extension or conversion.
2 A minimum of $5,000,000 and increments of $2,000,000.
3 Eurodollar Rate and Base Rate Loans available.
4 Interest Periods of one, two, three and six months' duration
for Eurodollar Rate Loans.
In accordance with the requirements of Section 3.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c) and (d) of such Section, are true and correct.
Very truly yours,
SONOCO PRODUCTS COMPANY
By
--------------------------
Name
------------------------
Title
-----------------------
SCHEDULE 2.12
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of July 10,
2002, as amended and modified from time to time thereafter, among Sonoco
Products Company, the Lenders party thereto and Bank of America, N.A., as Agent
(the "Credit Agreement"). Pursuant to Section 2.12 of the Credit Agreement, the
undersigned hereby certifies that it is not a "bank" as such term is used in
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By
--------------------------
Name
------------------------
Title
-----------------------
SCHEDULE 3.1(c)
[Form of Legal Opinion]
July 10, 2002
To the Agent and Lenders party to the
Credit Agreement referred to below
Ladies and Gentlemen:
We are general counsel to Sonoco Products Company, a South Carolina
corporation ("Sonoco"). As such we have been asked to give certain legal
opinions set forth herein in connection with the Credit Agreement (the "Credit
Agreement"), dated as of July 10, 2002 among Sonoco, the several lenders
identified on the signature pages thereto and such other lenders as may from
time to time become a party thereto and Bank of America, N.A., as Agent. Terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement.
This opinion is given in accordance with the requirements of Section
3.1(c) of the Credit Agreement.
In rendering the opinions expressed below, we have examined an executed
copy of the Credit Documents and originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, agreements, documents
and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of Sonoco, and have made such
inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
Whenever any opinion herein with respect to the existence or absence of
facts is qualified by the phrase "to the best of our knowledge," such phrase
indicates only that during the course of our representation of Sonoco, no
information has come to our attention which would give us actual knowledge of
the existence or absence of such facts and we have inquired of Sonoco as to such
matters. Except to the extent expressly stated herein, we have not undertaken
any independent investigation to determine the existence or absence of any such
facts, and no inference as to our knowledge of the existence of such facts
should be drawn from the fact of our representation of Sonoco.
In such examination, we have assumed the genuineness of all signatures
(other than signatures of officers of Sonoco), the authenticity of all documents
(other than the Credit Documents) submitted to us as originals, the conformity
to original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
Based on the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Sonoco (a) is a corporation duly organized, validly existing and in
good standing under the laws of the State of South Carolina, (b) is duly
qualified and in good standing as a foreign corporation and authorized to do
business in all other jurisdictions wherein the nature of its business or
property makes such qualification necessary, except where its failure so to
qualify would not have a Material Adverse Effect, and (c) has the corporate
power and authority to own its real properties and its material personal
properties and to carry on its business as now conducted.
2. Sonoco has the corporate power and authority and the legal right to
make, execute, deliver and perform the terms and provisions of each of the
Credit Documents and to borrow and accept extensions of credit thereunder, and
has duly taken or caused to be taken all necessary corporate action to authorize
the execution, delivery and performance by it of each such Credit Document.
3. Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by Sonoco will (a) violate or
conflict with any provision of its articles of incorporation or bylaws; (b)
violate, contravene or materially conflict with any law, regulation (including,
without limitation, Regulation T, Regulation U or Regulation X); (c)
violate, contravene or materially conflict with contractual provisions of, or
cause an event of default under, the indentures and other agreements, entered
into by Sonoco in connection with the transactions shown on Schedule A, the
violation of which could have or might be reasonably expected to have a Material
Adverse Effect; or (d) result in or require the creation of any Lien upon or
with respect to its properties in connection with the transactions on Schedule
A.
4. No approval, consent or authorization of, or any other action by, or
filing or registration with, any governmental department, agency or
instrumentality or other third party, is necessary for the execution or delivery
by Sonoco of the Credit Documents or for the performance by it of any of the
terms or conditions thereof.
5. Each of the Credit Documents has been duly executed and delivered by
Sonoco.
6. Each of the Credit Documents constitutes a legal, valid and binding
obligation of Sonoco enforceable against it in accordance with its respective
terms.
7. To the best of our knowledge:
(a) there are no actions, suits or proceedings pending or
threatened against or affecting Sonoco or any Subsidiary in any court
or arbitration or before or by any governmental department, agency or
instrumentality, domestic or foreign, which reasonably could be
expected to have a Material Adverse Effect;
(b) neither Sonoco nor any Subsidiary is in violation of any
judgment, order, writ, injunction, decree or award or in violation of
any rule or regulation of any court or binding arbitration or
governmental department, agency or instrumentality, domestic or
foreign, the violation of which would have a Material Adverse Effect;
and
(c) neither the execution and delivery of the Credit
Documents, nor the consummation of the transactions contemplated
therein, nor performance of and compliance with the terms and
provisions thereof by Sonoco will (i) violate, contravene or materially
conflict with contractual provisions of, or cause an event of default
under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it
may be bound, the violation of which could have or might be reasonably
expected to have a Material Adverse Effect; (ii) violate, contravene or
materially conflict with any order, writ, judgment, injunction, decree
or permit applicable to it; or (iii) result in or require the creation
of any Lien upon or with respect to its properties.
The opinions expressed in paragraph 6 above are based upon the
assumption for purposes of such opinions and without independent analysis, that
notwithstanding the respective choice of law clauses in the Credit Documents,
the governing law with respect to each of the Credit Documents is identical in
all relevant respects to the law of the State of South Carolina. Insofar as such
opinion relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws affecting
the enforcement of creditors' rights generally (whether such enforceability is
considered in a proceeding in equity or at law). The enforceability of the
remedies provided under the Credit Agreement may also be limited by applicable
laws which may affect the remedies provided therein but which do not in our
opinion affect the validity of the Credit Agreement or make such remedies
inadequate for the practical realization of the benefits intended to be
provided.
We do not express any opinion as to matters governed by any law other
than the laws of the State of South Carolina. Further, we express no opinion as
to the enforceability of the choice of law provisions contained in any of the
Credit Documents.
This opinion is rendered solely for your benefit in connection with the
transactions described above. This opinion may not be used or relied upon by any
other person, and may not be disclosed, quoted, filed with a
governmental agency or otherwise referred to without our prior written consent
except to your bank examiners, auditors and counsel and to prospective
transferees of your interests under the Credit Documents and their professional
advisers, or as required by law or pursuant to legal process
Very truly yours,
BDW/ds
Enclosures
SCHEDULE 4.12
EXISTING LIENS
LIENS SECURING INDEBTEDNESS OF
MONEY BORROWED AND PRIORITY CLAIMS OF THE COMPANY
AND ITS SUBSIDIARIES
LEASE-PURCHASE AGREEMENTS
- ------------------------- Outstanding
Lessor Collateral 06/30/02
----------------- ----------------- -----------
John M. Miller and Buildings and land $ 359,655
Donald J. Miller North Vernon, Indiana
c/o First National Bank plant
P. O. Box 18
North Vernon, Indiana 47265
ENERGY LOAN
- -----------
Utility
- --------------------
Alliant Energy Recycling Equipment $ 203,560
222 W. Washington Ave.
Madison, WI 53703
INDUSTRIAL REVENUE BONDS
- ------------------------
Trustee
-------------------
Chase Manhattan Trust Co. Land and facilities - $l,900,000
One Oxford Center Oil City Pennsylvania
301 Grant Street, Ste. 1100
Pittsburgh, PA 15219
Pennsylvania Industrial 25 acres of land, Milesburg $ 541,666
Development Authority Centre County, Pennsylvania
P. O. Box 884 with all improvements
Harrisburg, PA 17108-0884
First Union National Bank Property, Plant and equip- $5,620,000
of Georgia ment - Fulton, New York plant
P. O. Box 1211 of Engraph, Inc.
Augusta, GA 30913
INDUSTRIAL REVENUE BONDS
- ------------------------ Outstanding
Trustee Collateral 06/30/02
----------------- ----------------- -----------
Bank of New York Property, Plant and equipment $35,130,000
Corporate Trust Div. Darlington County, SC
Towermarc Plaza
10161 Centurion Pkwy.
Jacksonville, FL 32256
Bank of New York Property, Plant and equipment $35,000,000
Corporate Trust Div. Darlington County, SC
Towermarc Plaza
10161 Centurion Pkwy.
Jacksonville, FL 32256
AmSouth Bank Property, Plant and Equipment $ 2,712,969
P. O. Box 11426 Colemon Industrial Park
Birmingham, AL 35202 Sumter County, AL
SCHEDULE 5.1(c)
Form of Officer's Compliance Certificate
For the fiscal quarter ended _________________________, 20__.
I, ______________________, [Title] of SONOCO PRODUCTS COMPANY (the
"Borrower") hereby certify that, to the best of my knowledge and belief, with
respect to that certain Credit Agreement dated as of July __, 2002 (as amended
and modified from time to time, the "Credit Facility"; all of the defined terms
in the Credit Agreement are incorporated herein by reference) among the
Borrower, the Lenders party thereto and Bank of America, N.A., as Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and
have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, subject to
changes resulting from audit and normal year-end audit
adjustments;
b. Since ___________ (the date of the last similar certification,
or, if none, the Closing Date) no Default or Event of Default has
occurred under the Credit Agreement; and
c. Attached hereto as Schedule I are calculations (calculated as of
the date of the financial statements which accompany this
certificate) demonstrating compliance by the Borrower with
Section 5.10 of the Credit Agreement.
This ______ day of _________________, 20__.
SONOCO PRODUCTS COMPANY
By
--------------------------
Name
------------------------
Title
-----------------------
Schedule I
to
Officer's Compliance Certificate
Fiscal Quarter Ending: __________, 20___.
A. Minimum Book Net Worth
(i) 85% of Book Net Worth as of March 31, 2002 $698,700,000
(ii) 25% of the Borrower's and its Subsidiaries' cumulative
net income for each fiscal quarter (commencing with the
fiscal quarter ending June 30, 2002), computed on
a consolidated basis in accordance with GAAP $___________
(iii) Aggregate cumulative amount of all payments made by the
Borrower on and after July 18, 2001 for the redemption,
retirement or other repurchase of any shares of the
capital stock of the Borrower so long as the Borrower's
Long-Term Debt is rated A- or higher by S&P and A3 or
higher by Moody's at the time of such payment and for
the period ending upon the earlier of forty-five (45)
days after such payment or the date of delivery of
this certificate $___________
(iv) Line A(i) plus Line A(ii) minus Line A(iii) $___________
B. Actual Book Net Worth
(i) Book Net Worth as of the last day of such fiscal
quarter $___________
Minimum Allowed:
As of the last day of the fiscal quarter indicated above, Line B(i) shall be
greater than or equal to Line A(iv). The Borrower is in compliance with the
foregoing minimum allowed Book Net Worth: yes ___ no___
SCHEDULE 5.12(b)
Existing Indebtedness
as of 06/30/02
SONOCO PRODUCTS COMPANY DEBT 06/30/02
ALL AMOUNTS IN 000'S OF USD
Commercial paper 111,500
7.0% debentures due November 2004 151,084
6.75% debentures due November 2010 99,855
5.875% debentures due November 2003 99,909
9.2% debentures due August 2021 41,305
6.5% debentures due November 2013 248,657
6.125% IRBs due June 2025 34,591
6.0% IRBs due April 2026 34,249
Foreign denominated debt 54,136
Other notes 10,284
- ------------------------------------------------------------------------------
TOTAL DEBT 885,570
Less current portion and short-term notes 42,400
- ------------------------------------------------------------------------------
Long-term debt 843,170
SCHEDULE 8.2(b)
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance Agreement (this "Assignment") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below, the interest in and to all of the Assignor's
rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage
interest identified below of all of the Assignor's outstanding rights and
obligations under the respective facilities identified below (including, to the
extent included in any such facilities, Letters of Credit and Swingline Loans)
(the "Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment, without
representation or warranty by the Assignor.
1. Assignor: _______________________
2. Assignee: _______________________ [, which is an Affiliate/
Approved Fund(1)]
3. Borrower(s): Sonoco Products Company
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: The Credit Agreement, dated as of July 10, 2002
among SONOCO PRODUCTS COMPANY, the Lenders from
time to time party thereto and Bank of America,
N.A., as Administrative Agent.
- --------
1 Select as applicable.
6. Assigned Interest:
- --------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Credit Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders Assigned Commitment/Loans(2)
----------------- --------------- -------- --------------------
- --------------------------------------------------------------------------------
_____________(3) $______________ $_______________ ______________%
- --------------------------------------------------------------------------------
_____________ $______________ $_______________ ______________%
- --------------------------------------------------------------------------------
_____________ $______________ $_______________ ______________%
- --------------------------------------------------------------------------------
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
- --------
2 Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
3 Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned
under this Assignment (e.g. "364 Day Facility Commitment",
"Multi-Year Facility Commitment", etc.).
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and](4) Accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: ___________________________
Title:
[Consented to:](5)
SONOCO PRODUCTS COMPANY
a South Carolina corporation
By: ___________________________
Title:
- --------
4 To be added only if the consent of the Agent is required by
the terms of the Credit Agreement.
5 To be added only if the consent of the Borrower and/or other
parties (e.g. Swingline Lender, Issuing Lender) is required by
the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
CREDIT AGREEMENT DATED AS OF JULY 10, 2002 IN FAVOR OF SONOCO PRODUCTS COMPANY.
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ACCEPTANCE AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Credit Documents"), or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Documents, and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Documents are required
to be performed by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as Schedule 1
is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, the Agent shall make
all payments in respect of the Assigned interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
3. General Provisions. This Assignment shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually
executed counterpart of this Assignment. This Assignment shall be governed by,
and construed in accordance with, the law of the State of New York.
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and
facsimile numbers, electronic mail addresses and account and payment
information)