Exhibit 4.1
EXECUTION COUNTERPART
________________________________________________________________________________
U.S. $500,000,000
5-YEAR CREDIT AGREEMENT
Dated as of April 28, 2004
among
THE PEPSI BOTTLING GROUP, INC.
BOTTLING GROUP, LLC
THE LENDERS NAMED HEREIN
JPMORGAN CHASE BANK,
as Agent,
BANC OF AMERICA SECURITIES LLC and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and
Book Managers
and
BANK OF AMERICA, N.A.,
Citicorp USA, Inc.,
CREDIT SUISSE FIRST BOSTON and
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agents
________________________________________________________________________________
NY3:#7330584v6
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS AND ACCOUNTING..........................................1
SECTION 1.01. Certain Defined Terms........................................1
SECTION 1.02. Computation of Time Periods.................................12
SECTION 1.03. Accounting Terms............................................12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.................................13
SECTION 2.01. The Revolving Credit Advances...............................13
SECTION 2.02. Making the Revolving Credit Advances........................13
SECTION 2.03. The Competitive Bid Advances................................15
SECTION 2.04. Fees........................................................18
SECTION 2.05. Termination, Reduction or Increase of the
Commitments...............................................19
SECTION 2.06. Repayment of Revolving Credit Advances, Evidence
of Indebtedness and Extension of Termination Date.........21
SECTION 2.07. Interest on Revolving Credit Advances.......................23
SECTION 2.08. Interest Rate Determination.................................23
SECTION 2.09. Optional Conversion of Revolving Credit Advances............24
SECTION 2.10. Optional Prepayments of Revolving Credit Advances...........25
SECTION 2.11. Increased Costs.............................................25
SECTION 2.12. Illegality..................................................26
SECTION 2.13. Payments and Computations...................................26
SECTION 2.14. Taxes.......................................................27
SECTION 2.15. Sharing of Payments, Etc....................................30
SECTION 2.16. Use of Proceeds.............................................30
SECTION 2.17. Borrowings by Borrowing Subsidiaries;
Substitution of Borrower..................................30
SECTION 2.18. Mitigation Obligations......................................31
ARTICLE III CONDITIONS TO EFFECTIVENESS AND ARTICLE II.......................32
SECTION 3.01. Conditions Precedent to Effectiveness
of Sections 2.01 and 2.03.................................32
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing.....34
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing......34
SECTION 3.04. Determinations Under Section 3.01...........................35
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES................35
SECTION 4.01. Representations and Warranties of the Loan Parties..........35
ARTICLE V COVENANTS..........................................................36
SECTION 5.01. Affirmative Covenants.......................................36
SECTION 5.02. Negative Covenants..........................................38
SECTION 5.03. Financial Covenants.........................................39
ARTICLE VI EVENTS OF DEFAULT.................................................40
SECTION 6.01. Events of Default...........................................40
ARTICLE VII THE AGENT........................................................42
ARTICLE VIII MISCELLANEOUS...................................................44
SECTION 8.01. Amendments, Etc.............................................44
SECTION 8.02. Notices, Etc................................................44
SECTION 8.03. No Waiver; Remedies.........................................45
-i-
NY3:#7330584v6
Page
----
SECTION 8.04. Costs and Expenses..........................................45
SECTION 8.05. Right of Set-off............................................46
SECTION 8.06. Binding Effect..............................................46
SECTION 8.07. Assignments and Participations..............................47
SECTION 8.08. Confidentiality.............................................50
SECTION 8.09. Governing Law...............................................50
SECTION 8.10. Execution in Counterparts...................................50
SECTION 8.11. Jurisdiction, Etc...........................................50
SECTION 8.12. WAIVER OF JURY TRIAL........................................51
SECTION 8.13. USA PATRIOT Act.............................................51
ARTICLE IX COMPANY GUARANTEE.................................................51
SECTION 9.01. Company Guarantee...........................................51
ARTICLE X SUBSIDIARY GUARANTEE...............................................53
SECTION 10.01. Subsidiary Guarantee........................................53
SECTION 10.02. Limitation of Guarantor's Liability.........................54
SCHEDULE 1 - Lending Offices
SCHEDULE 2 - Pricing Schedule
EXHIBIT A-1 - Form of Notice of Revolving Credit Borrowing
EXHIBIT A-2 - Form of Notice of Competitive Bid Borrowing
EXHIBIT A-3 - Form of Extension Agreement
EXHIBIT B - Form of Assignment and Acceptance
EXHIBIT C-1 - Form of Opinion of General Counsel of the Company
and the Guarantor
EXHIBIT C-2 - Form of Opinion of Special New York Counsel for the Agent
EXHIBIT D - Form of Designation Letter
EXHIBIT E - Form of Substitution Letter
EXHIBIT F - Form of Termination Letter
-ii-
NY3:#7330584v6
CREDIT AGREEMENT
Dated as of April 28, 2004
THE PEPSI BOTTLING GROUP, INC., a Delaware corporation (the "Company"),
BOTTLING GROUP, LLC, a Delaware limited liability company (the "Guarantor"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and JPMORGAN CHASE BANK
("JPMorgan"), as administrative agent (in such capacity, the "Agent") for the
Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account " means the account of the Agent maintained by the Agent
at JPMorgan with its office at 270 Park Avenue, New York, New York 10017.
"Alternate Covenant Date" means any day on which the Index Debt of Pepsi
shall be rated less than A- by S&P or less than A3 by Moody's.
"Applicable Facility Fee Rate" means, for any Rating Level Period, the rate
per annum set forth in Schedule 2 opposite the reference to such Rating Level
Period under the heading "Applicable Facility Fee Rate". Each change in the
Applicable Facility Fee Rate resulting from a Rating Level Change shall be
effective on the date of such Rating Level Change.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of the Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a Competitive Bid
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
Advance, the office of such Lender notified by such Lender to the Agent as
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, with respect to any Eurodollar Rate Advance, for
any Rating Level Period, the rate per annum set forth in Schedule 2 opposite the
reference to such Rating Level Period under the heading "Applicable Margin".
Each change in the Applicable Margin resulting from a Rating Level Change shall
be effective on the date of such Rating Level Change.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Utilization Fee Rate" means, for any Rating Level Period, the
rate per annum set forth in Schedule 2 opposite the reference to such Rating
Level Period under the heading "Applicable Utilization Fee Rate". Each change in
the Applicable Utilization Fee Rate resulting from a Rating Level Change shall
be effective on the date of such Rating Level Change.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit B hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by JPMorgan in New York, New
York, from time to time, as JPMorgan's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears interest as
provided in Section 2.07(a).
"Borrowers" means, at any time, collectively, the Company unless the
Substitution Date has occurred pursuant to Section 2.17, each Borrowing
Subsidiary and, on and after the Substitution Date has occurred pursuant to
Section 2.17, the Guarantor.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Borrowing Subsidiary" means any Subsidiary of the Company, as to which a
Designation Letter has been delivered to the Agent and as to which a Termination
Letter has not been delivered to the Agent in accordance with Section 2.17.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-2-
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Change of Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than Pepsi, of shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Company; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Company by Persons who were neither (i) nominated
by the board of directors of the Company nor (ii) appointed by directors so
nominated; or (c) the loss of power to direct or cause the direction of the
management or policies of such Borrower by any Person or group other than [Ambac
Financial].
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to a Borrower as
part of a Competitive Bid Borrowing resulting from the auction bidding procedure
described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO Rate
Advance.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such borrowing has been accepted under
the auction bidding procedure described in Section 2.03.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Company furnishes to
the Agent or any Lender in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public or that is or becomes rightfully available to the Agent or such Lender
from a source other than the Company.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP. The Company shall cause the Guarantor at all times to remain a
Consolidated Subsidiary.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount with respect to Debt (including the Advances), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), and (f) any other non-cash
charges, and minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) any extraordinary income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-3-
Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (b) any other non-cash income, all as determined on a
Consolidated basis; in each case exclusive of the cumulative effect of foreign
currency gains or losses. For the purposes of calculating Consolidated EBITDA
for any period pursuant to any determination of the Consolidated Leverage Ratio,
if during such period the Company or any Subsidiary, including the Guarantor,
shall have made an acquisition or incurred or assumed (without duplication of
any Debt incurred to refinance such assumed Debt) any Debt, Consolidated EBITDA
for such period shall be calculated after giving pro forma effect thereto as if
such acquisition occurred and such Debt had been incurred or assumed or
refinanced on the first day of such period.
"Consolidated Leverage Ratio" means, as at the last day of any Fiscal
Quarter, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for the four consecutive fiscal quarters then ended (taken
as one accounting period).
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company, its Restricted Subsidiaries and the Guarantor,
determined on a consolidated basis in accordance with GAAP, before deduction of
any minority interests in the Guarantor and excluding the cumulative effect of
any foreign currency gains or losses.
"Consolidated Net Tangible Assets" means the total assets of the Company,
its Restricted Subsidiaries and the Guarantor (less applicable depreciation,
amortization, and other valuation reserves), except to the extent resulting from
write-ups of capital assets (other than writeups in connection with accounting
for acquisitions, in accordance with GAAP), less all current liabilities
(excluding intercompany liabilities) and all intangible assets of the Company,
its Restricted Subsidiaries and the Guarantor, all as set forth on the then most
recent Consolidated balance sheet of the Company, its Restricted Subsidiaries
and the Guarantor, prepared in accordance with GAAP, but before deduction of any
minority interests in the Guarantor and exclusive of any foreign currency
translation adjustments.
"Consolidated Net Worth" means, as of any date of determination, all items
which in conformity with GAAP would be included under shareholders' equity on a
Consolidated balance sheet of the Company and its Subsidiaries, including the
Guarantor, at such date plus amounts representing mandatorily redeemable
preferred securities issued by Subsidiaries of the Company, including the
Guarantor, but before deduction of any minority interests in the Guarantor and
exclusive of any foreign currency translation adjustments.
"Consolidated Total Debt" means, at any date (i) the aggregate principal
amount of all Debt of the Company and its Subsidiaries, including the Guarantor
minus (ii) the aggregate amount (not in excess of $500,000,000) of all cash and
cash equivalents of the Company and its Subsidiaries, in each case at such date
and determined on a Consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-4-
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade accounts
payable arising in the ordinary course of business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations (other than trade accounts payable arising in the ordinary
course of business) of such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
Debt of others referred to in clauses (a) through (e) above or clause (g) below
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through (i) an agreement (1) to
pay or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, or (ii) a standby letter of credit and (g) all
Debt referred to in clauses (a) through (f) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
"Debt to Capitalization Ratio" means at any time the ratio of (x)
Consolidated Total Debt to (y) the sum of (i) Consolidated Total Debt plus (ii)
Consolidated Net Worth.
"Declining Lender" has the meaning assigned to that term in
Section 2.06(c).
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Designation Letter" has the meaning specified in Section 2.17(a).
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule 1 hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-5-
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$l5,000,000,000 and a combined capital and surplus of at least $1,000,000,000 so
long as such bank is acting through a branch or agency located in the United
States or in the country in which it is organized or another country that is
described in this clause (v); (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; provided,
however, that each Person described in clauses (ii) through (vi) shall have a
short term public debt rating of not less than A by S&P or Moody's or shall be
approved by the Company; and (vii) any other Person approved by the Company,
such approval not to be unreasonably withheld or delayed; provided, however,
that neither the Company nor an Affiliate of the Company shall qualify as an
Eligible Assignee.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to the environment, health,
safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurodollar Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule 1 hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Company and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing, an interest rate
per annum appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) as of 11:00 A.M. (London time) on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period, or in the
event such offered rate is not available from said Page 3750, the average
(rounded to the nearer whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding during such
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-6-
Interest Period and for a period equal to such Interest Period. If the
Eurodollar Rate does not appear on said Page 3750 (or any successor page), the
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(b).
"Events of Default" has the meaning specified in Section 6.01.
"Extension Agreement" means an Extension Agreement substantially in the
form contained in Exhibit A-3 hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Quarter" means a period of 13 or (or 14) weeks treated by the
Company as a fiscal quarter.
"Fiscal Year" means the period of 52 (or 53) weeks ending on the last
Saturday of any calendar year and treated by the Company as its fiscal year.
"Fixed Rate Advances" has the meaning specified in Section 2.03(b).
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
Consolidated financial statements of the Company and its Subsidiaries delivered
to the Lenders.
"Granting Lender" has the meaning specified in Section 8.07(e).
"Guaranteed Party" has the meaning specified in Section 9.01.
"Hazardous Materials" means petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, radon
gas and any other chemicals, materials or substances designated, classified or
regulated as being "hazardous" or "toxic", or words of similar import, under any
federal, state, local or foreign statute, law, ordi-
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-7-
nance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Index Debt" of any Person means senior, unsecured, long-term indebtedness
for borrowed money of such Person that is not guaranteed by any other Person
(other than, in the case of the Company, the Guarantor) or subject to any other
credit enhancement.
"Information Memorandum" means the information memorandum dated March 2004
used by the Agent in connection with the syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Revolving Credit Borrowing, the period commencing on the date of
such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Company pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Company
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three, six or, to the extent available from all the Lenders,
nine or twelve months, as the Company may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(1) the Company may not select any Interest Period that ends after the
Termination Date;
(2) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Revolving Credit Borrowing shall
be of the same duration;
(3) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day; and
(4) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by
the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Sections 2.05(c) or 8.07.
"LIBO Rate Advances" has the meaning specified in Section 2.03(b).
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-8-
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor.
"Loan Documents" means, collectively, this Agreement, each promissory note
issued thereunder, each Designation Letter and each Termination Letter.
"Loan Party" has the meaning specified in Section 4.01.
"Margin Stock" means margin stock within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System.
"Master Bottling Agreement" means the Master Bottling Agreement dated March
30, 1999, between the Company and Pepsi or any successor or replacement
agreement that confers substantially the same benefits on the Company as the
Master Bottling Agreement conferred on the date hereof.
"Material Adverse Change" means any material adverse change in the
financial condition, operations or properties of the Company or the Company and
its Subsidiaries (including the Guarantor) taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, operations or properties of the Company and its
Subsidiaries (including the Guarantor) taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any promissory note
or (c) the ability of the Company to perform its obligations under this
Agreement or any promissory note.
"Material Subsidiary" means each Subsidiary of the Company which is a
"significant subsidiary" as that term is defined in Rule 1-02(w) of the
Regulation S-X under the Securities Act of 1933, as amended, as such rule is in
effect as of the date hereof.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Moody's Rating" means, at any time, the rating of the Company's Index Debt
then most recently announced by Moody's.
"New Lender" means, for purposes of Section 2.05(c), an Eligible Assignee
(which may be a Lender) selected by the Company with (in the case of a New
Lender that is not already a Lender) prior consultation with the Agent.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(b).
"Notice of Revolving Credit Borrowing" has the meaning specified in Section
2.02(a).
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-9-
"Pepsi" means PepsiCo, Inc., a North Carolina corporation.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Principal Property" means any single manufacturing or processing plant,
office building, or warehouse owned or leased by the Company, a Restricted
Subsidiary or the Guarantor other than a plant, warehouse, office building, or
portion thereof which, in the opinion of the Company's Board of Directors, is
not of material importance to the business conducted by the Company, its
Restricted Subsidiaries and the Guarantor as an entirety.
"Rating" means the Moody's Rating or the S&P Rating, as the case may be.
"Rating Level Change" means a change in the Moody's Rating or the S&P
Rating that results in a change from one Rating Level Period to another, which
Rating Level Change shall be deemed to take effect on the date on which the
relevant change in rating is first announced by Moody's or S&P.
"Rating Level Period" means a Rating Level 1 Period, a Rating Level 2
Period, a Rating Level 3 Period, a Rating Level 4 Period or a Rating Level 5
Period; provided that:
(i) "Rating Level 1 Period" means a period during which the Moody's Rating
is at or above Aa3 or the S&P Rating is at or above AA-;
(ii) "Rating Level 2 Period" means a period that is not a Rating Level 1
Period, during which the Moody's Rating is at or above A1 or the S&P
Rating is at or above A+;
(iii) "Rating Level 3 Period" means a period that is not a Rating Level 1
Period or a Rating Level 2 Period, during which the Moody's Rating is
at or above A2 or the S&P Rating is at or above A;
(iv) "Rating Level 4 Period" means a period that is not a Rating Level 1
Period, a Rating Level 2 Period or a Rating Level 3 Period, during
which the Moody's Rating is at or above A3 or the S&P Rating is at or
above A-; and
(v) "Rating Level 5 Period" means a period that is not a Rating Level 1
Period, a Rating Level 2 Period, a Rating Level 3 Period or a Rating
Level 4 Period;
and provided, further, that if the Moody's rating and the S&P Rating differ by
more than one Rating Level, then the applicable Rating Level Period shall be one
Rating Level lower than the Rating Level resulting from the application of the
higher of such ratings (for which purpose
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-10-
Rating Level 1 is the highest and Rating Level 5 is the lowest); and provided,
further, that any period during which there is no Moody's Rating or there is no
S&P Rating shall be a Rating Level 5 Period.
"Reference Banks" means JPMorgan, Citibank, N.A. and Bank of America, N.A.
(and any successors thereof).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed more than 50% of the then
aggregate unpaid principal amount of the Revolving Credit Advances (excluding
Competitive Bid Advances) owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having more than 50% of the aggregate amount of the
Commitments.
"Restricted Subsidiary" means at any time any Subsidiary of the Company
except a Subsidiary which is at the time an Unrestricted Subsidiary.
"Revolving Credit Advance" means an advance by a Lender to a Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lenders pursuant
to Section 2.01.
"S&P" means Standard & Poors Rating Services or any successor thereto.
"S&P Rating" means, at any time, the rating of the Company's Index Debt
then most recently announced by S&P.
"SPC" has the meaning specified in Section 8.07(e).
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership or
joint venture or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-11-
"Substitution Date" has the meaning specified in Section 2.17(c).
"Substitution Letter" has the meaning specified in Section 2.17(c).
"Termination Date" means April 28, 2009 or, if earlier, the date of
termination in whole of the Commitments pursuant to Section 2.05(a) or 6.01 or,
in the case of any Lender whose Commitment is extended pursuant to Section
2.06(c), the date to which such Commitment is extended; provided in each case
that if any such date is not a Business Day, the relevant Termination Date of
such Lender shall be the immediately preceding Business Day.
"Termination Letter" has the meaning specified in Section 2.17(b).
"Type" has the meaning specified in the definition of "Revolving Credit
Advance."
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company (not at
the time designated a Restricted Subsidiary) (i) the major part of whose
business consists of finance, banking, credit, leasing, insurance, financial
services, or other similar operations, or any continuation thereof, (ii)
substantially all the assets of which consist of the capital stock of one or
more such Subsidiaries, or (iii) designated as such by the Company's Board of
Directors and (b) the Guarantor. Any Subsidiary designated as a Restricted
Subsidiary may be designated as an Unrestricted Subsidiary.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar actions) of such Person, even if the right so to vote
has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP; provided that, if the
Company notifies the Agent that the Company wishes to amend any provisions
hereof to eliminate the effect of any change in GAAP (or if the Agent notifies
the Company that the Required Lenders wish to amend any provision hereof for
such purpose), then such provision shall be applied on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such provision is amended in a manner
satisfactory to the Company and the Required Lenders.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-12-
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. (a) Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Company and any Borrowing Subsidiary from time to time on
any Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount set
forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(d), as such
amount may be reduced pursuant to Section 2.05(a) or increased pursuant to
Section 2.05(c) (such Lender's "Commitment"), provided that the aggregate amount
of the Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Bid Advances then outstanding
and such deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "Competitive
Bid Reduction").
(b) Each Revolving Credit Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less,
(i) an aggregate amount equal to the amount by which the aggregate amount of a
proposed Competitive Bid Borrowing requested by the Company exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by the Company in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing or (ii) the aggregate amount of the unused Commitments, after giving
effect to any Competitive Bid Reductions then in effect) and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments.
(c) Within the limits of each Lender's Commitment, each Borrower may borrow
under this Section 2.01, prepay pursuant to Section 2.10 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, or the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, by the Company (on its own behalf and on
behalf of any Borrowing Subsidiary) to the Agent, which shall give to each
Lender prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telecopier or telex, confirmed promptly in writing, in substantially the form
of Exhibit A-1 hereto, specifying therein the requested (i) date of such
Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving
Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing,
(iv) in the case of
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-13-
a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance and (v) name of the
relevant Borrower (which shall be the Company or a Borrowing Subsidiary). Each
Lender shall, before 11:00 A.M. (New York City time), in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances, or before 1:00 P.M.
(New York City time), in the case of a Revolving Credit Borrowing consisting of
Base Rate Advances, on the date of such Revolving Credit Borrowing, make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such same day funds available to the relevant Borrower at such
Borrower's account at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Company may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the relevant Borrower. In the case of any Revolving Credit Borrowing
that the related Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Company shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Revolving
Credit Borrowing for such Revolving Credit Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Revolving Credit Advance to be
made by such Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender's ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and such Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Agent, at
(i) in the case of a Borrower, the interest rate applicable at the time to
Revolving Credit Advances comprising such Revolving Credit Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement and shall
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-14-
be made available in same day funds to the relevant Borrower's account at the
Agent's address referred to in Section 8.02.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances.
(a) Each Lender severally agrees that each Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any Business Day
during the period from the date hereof until the date occurring 7 days prior to
the Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate amount of the Advances
then outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).
(b) The Company (on its own behalf and on behalf of any Borrowing
Subsidiary) may request a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier or telex, confirmed promptly in writing,
a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit A-2 hereto, specifying therein
(i) the date of such proposed Competitive Bid Borrowing, (ii) the aggregate
amount of such proposed Competitive Bid Borrowing, (iii) the maturity date for
repayment of each Competitive Bid Advance to be made as part of such Competitive
Bid Borrowing (which maturity date may not be earlier than the date occurring 7
days after the date of such Competitive Bid Borrowing or later than the
Termination Date), (iv) the interest payment date or dates relating thereto, (v)
the name of the Borrower, and (vi) any other terms to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York City time) (A) at
least one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Company shall specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the Lenders shall be fixed
rates per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least four
Business Days prior to the date of the proposed Competitive Bid Borrowing, if
the Company shall instead specify in the Notice of Competitive Bid Borrowing
another basis to be used by the Lenders in determining the rates of interest to
be offered by them (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing received by
it from the Company by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(c) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the relevant
Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates
of interest specified by such Lender in its sole discretion, by notifying the
Agent (which shall give prompt notice thereof to the Company),
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-15-
before 10:00 A.M. (New York City time) on the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed
Rate Advances, and three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, of the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to make as part of
such proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such Competitive Bid Advance; provided
that if the Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the Company of such offer before
9:00 A.M. (New York City time) on the date on which notice of such election is
to be given to the Agent by the other Lenders. If any Lender shall elect not to
make such an offer, such Lender shall so notify the Agent, before 10:00 A.M.
(New York City time) on the date on which notice of such election is to be given
to the Agent by the other Lenders, and such Lender shall not be obligated to,
and shall not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(d) The Company shall, in turn, before 11:00 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, and before 1:00
P.M. (New York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (c) above, by giving notice to the Agent
of the amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the Company by the Agent on behalf of
such Lender for such Competitive Bid Advance pursuant to paragraph (c)
above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders pursuant to
paragraph (c) above by giving the Agent notice to that effect. If the
Company accepts any offers made by Lenders pursuant to paragraph (c)
above, such offers shall be accepted in the order of the lowest to
highest interest rates or, if two or more Lenders offer to make
Competitive Bid Advances at the same interest rate, such offers, if
any, shall be accepted in proportion to the amount offered by each
such Lender at such interest rate notwithstanding any minimum
specified by such Lender in its notice given pursuant to paragraph (c)
above. The Company may not accept offers in excess of the amount
specified in accordance with paragraph (a) above.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-16-
(e) If the Company notifies the Agent that such Competitive Bid Borrowing
is cancelled pursuant to paragraph (d)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(f) If the Company accepts one or more of the offers made by any Lender or
Lenders pursuant to paragraph (d)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph (c)
above, of the date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender pursuant to paragraph (c)
above have been accepted by the Company, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent
has received forms of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such same day funds available to the
relevant Borrower at such Borrower's account at the Agent's address referred to
in Section 8.02. Promptly after each Competitive Bid Borrowing the Agent will
notify each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such Competitive
Bid Reduction commenced and will terminate.
(g) Each Competitive Bid Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Company shall be in
compliance with the limitation set forth in the proviso to the first sentence of
paragraph (a) above.
(h) Within the limits and on the conditions set forth in this Section 2.03,
each Borrower may from time to time borrow under this Section 2.03, repay or
prepay pursuant to subsection (j) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(i) Each Borrower shall repay to the Agent for the account of each Lender
that has made a Competitive Bid Advance to such Borrower, on the maturity date
of such Competitive Bid Advance (such maturity date being that specified by the
Company for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to paragraph (b) above and provided
in the promissory note, if any, evidencing such Competitive Bid Advance), the
then unpaid principal amount of such Competitive Bid Advance. No Borrower shall
have any right to prepay any principal amount of any Competitive Bid Advance
unless (x) such Borrower obtains the prior written consent of the
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-17-
Lender which made such Competitive Bid Advance, or (y), such prepayment is made
on the terms, specified by the Company for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to paragraph (b)
above and set forth in the promissory note, if any, evidencing such Competitive
Bid Advance.
(j) Each Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance to such Borrower from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to paragraph (c) above, payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to paragraph (b) above, as provided in the promissory note, if any,
evidencing such Competitive Bid Advance.
(k) At its option, the Company (on its own behalf and on behalf of any
Borrower) may request a Competitive Bid Borrowing directly from the Lenders;
provided that it follows the procedures set forth in this Section 2.03 and
promptly delivers, by telecopier or telex, a copy of the Notice of Competitive
Bid Borrowing and notice in writing of the results of such request to the Agent.
(l) The indebtedness of each Borrower resulting from each Competitive Bid
Advance made to such Borrower as part of a Competitive Bid Borrowing shall, if
requested by the applicable Lender, be evidenced by a separate promissory note
of such Borrower payable to the order of the Lender making such Competitive Bid
Advance.
SECTION 2.04. Fees.
(a) Facility Fee. The Company agrees to pay to the Agent for the account of
each Lender a facility fee on the amount of such Lender's Commitment,
irrespective of usage, from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date (on a daily basis), at the Applicable Facility Fee Rate,
payable in arrears quarterly on the last day of each March, June, September and
December and on the Termination Date, commencing June 30, 2004.
(b) Agent's Fees. The Company shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Company and the Agent.
(c) Utilization Fee. The Company shall pay to the Agent for the account of
each Lender a utilization fee on the aggregate outstanding principal amount of
such Lender's Advances for each day on which the aggregate outstanding amount of
the Advances exceeds 50% of the aggregate Commitments, from the Effective Date
in the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date (on a daily basis),
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-18-
at the Applicable Utilization Fee rate, payable on each day on which interest is
payable under Section 2.07, and on the Termination Date.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) The Company shall have the right, upon at least three Business Days'
notice to the Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that (x) the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Advances then
outstanding, and (y) once terminated, a portion of a Commitment shall not be
reinstated except pursuant to Section 2.05(c).
(b) If any Lender shall make a demand under Section 2.11 or 2.14 or if the
obligation of any Lender to make Eurodollar Rate Advances shall have been
suspended pursuant to Section 2.12, the Company shall have the right, upon at
least ten Business Days' notice, to terminate in full the Commitment of such
Lender or to demand that such Lender assign to one or more Eligible Assignees
all of its rights and obligations under this Agreement in accordance with
Section 8.07. If the Company shall elect to terminate in full the Commitment of
any Lender pursuant to this Section 2.05(b), the Company shall pay to such
Lender, on the effective date of such Commitment termination, an amount equal to
the aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement,
whereupon such Lender shall cease to be a party hereto.
(c) (i) Not more than once in any calendar year, the Company may propose to
increase the aggregate amount of the Commitments by an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof (a "Proposed
Aggregate Commitment Increase") in the manner set forth below, provided that:
(1) no Default shall have occurred and be continuing either as of the
date on which the Company shall notify the Agent of its request to increase
the aggregate amount of the Commitments or as of the related Increase Date
(as hereinafter defined); and
(2) after giving effect to any such increase, the aggregate amount of
the Commitments shall not exceed $800,000,000.
(ii) The Company may request an increase in the aggregate amount of
the Commitments by delivering to the Agent a notice (an "Increase Notice";
the date of delivery thereof to the Agent being the "Increase Notice Date")
specifying (1) the Proposed Aggregate Commitment Increase, (2) the proposed
date (the "Increase Date") on which the Commitments would be so increased
(which Increase Date may not be fewer than 30 nor more than 60 days after
the Increase Notice Date) and (3) the New Lenders, if any, to whom the
Company desires to offer the opportunity to commit to all or a portion of
the Proposed Aggregate Commitment Increase.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-19-
The Agent shall in turn promptly notify each Lender of the Company's
request by sending each Lender a copy of such notice.
(iii) Not later than the date five days after the Increase Notice
Date, the Agent shall notify each New Lender, if any, identified in the
related Increase Notice of the opportunity to commit to all or any portion
of the Proposed Aggregate Commitment Increase. Each such New Lender may
irrevocably commit to all or a portion of the Proposed Aggregate Commitment
Increase (such New Lender's "Proposed New Commitment") by notifying the
Agent (which shall give prompt notice thereof to the Company) before 11:00
A.M. (New York City time) on the date that is 10 days after the Increase
Notice Date; provided that:
(1) the Proposed New Commitment of each New Lender shall be in an
amount of $25,000,000 or an integral multiple of $1,000,000 in excess
thereof; and
(2) each New Lender that submits a Proposed New Commitment shall
enter into an agreement in form and substance satisfactory to the
Company and the Agent pursuant to which such New Lender shall
undertake a Commitment (and, if any such New Lender is already a
Lender, its Commitment shall be in addition to such Lender's
Commitment hereunder on such date), and shall pay to the Agent a
processing and recordation fee of $3,500.
(iv) If the aggregate Proposed New Commitments of all of the New
Lenders shall be less than the Proposed Aggregate Commitment Increase, then
(unless the Company otherwise requests) the Agent shall, on or prior to the
date that is 15 days after the Increase Notice Date, notify each Lender of
the opportunity to so commit to all or any portion of the Proposed
Aggregate Commitment Increase not committed to by New Lenders pursuant to
Section 2.05(c)(iii). Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to commit to all or a portion of such
remainder (such Lender's "Proposed Increased Commitment") by notifying the
Agent (which shall give prompt notice thereof to the Company) no later than
11:00 A.M. (New York City time) on the date five days before the Increase
Date.
(v) If the aggregate amount of Proposed New Commitments and Proposed
Increased Commitments (such aggregate amount, the "Total Committed
Increase") equals or exceeds $25,000,000, then, subject to the conditions
set forth in Section 2.05(c)(i):
(1) effective on and as of the Increase Date, the aggregate
amount of the Commitments shall be increased by the lesser of the
proposed aggregate Committed Increase and the Total Committed Increase
and shall be allocated among the New Lenders and the Lenders as
provided in Section 2.05(c)(vi); and
(2) on the Increase Date, if any Revolving Loans are then
outstanding, the Company shall borrow Revolving Loans from all or
certain of the Lenders and/or (subject to compliance by the Company
with Section 8.04(d)) prepay Revolving Loans of all or certain of the
Lenders such that, after giving effect thereto, the Revolving Loans
(including, without limitation, the Types and Interest Periods
thereof) shall be held by the Lend-
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-20-
ers (including for such purposes New Lenders) ratably in accordance
with their respective Commitments.
If the Total Committed Increase is less than $25,000,000, then the aggregate
amount of the Commitments shall not be changed pursuant to this Section 2.05(c).
(vi) The Total Committed Increase shall be allocated among New Lenders
having Proposed New Commitments and Lenders having Proposed Increased
Commitments as follows:
(1) If the Total Committed Increase shall be at least $25,000,000 and
less than or equal to the Proposed Aggregate Commitment Increase, then (x)
the initial Commitment of each New Lender shall be such New Lender's
Proposed New Commitment and (y) the Commitment of each Lender shall be
increased by such Lender's Proposed Increased Commitment.
(2) If the Total Committed Increase shall be greater than the Proposed
Aggregate Commitment Increase, then the Total Committed Increase shall be
allocated:
(x) first to New Lenders (to the extent of their respective
Proposed New Commitments) in such a manner as the Company shall agree;
and
(y) then to Lenders on a pro rata basis based on the ratio of
each Lender's Proposed Increased Commitment (if any) to the aggregate
amount of the Proposed Increased Commitments of all of the Lenders.
(vii) No increase in the Commitments contemplated hereby shall become
effective until the Agent shall have received (x) promissory notes in respect of
the Revolving Loans payable to each New Lender and each other Lender whose
Commitment is being increased that, in either case, shall have requested such
promissory notes at least two Business Days prior to the Increase Date, and (y)
evidence satisfactory to the Agent (including an update of the opinion of
counsel provided pursuant to Section 3.01(g)(v)) that such increases in the
Commitments, and borrowings thereunder, have been duly authorized.
SECTION 2.06. Repayment of Revolving Credit Advances, Evidence of
Indebtedness and Extension of Termination Date.
(a) The Company and each Borrower shall repay to the Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Advance made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The Agent shall maintain accounts in which it shall record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period,
if any, applicable thereto, (ii) the amount of any principal or interest due and
payable or to
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-21-
become due and payable from the Borrowers to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder for the account of the Lenders
and each Lender's share thereof. The entries made in the accounts maintained
pursuant to this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of any Borrower to repay the Advances in
accordance with the terms of this Agreement. Any Lender may request that
Advances made by it be evidenced by a promissory note. In such event, the
applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Agent. Thereafter, the Advances evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 8.07)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
(c) The Company may by written notice to the Agent, not more than 90 nor
less than 60 days prior to the Termination Date then in effect, request that the
Termination Date then in effect be extended for a further period of one year.
Such request shall be irrevocable and binding upon the Company. The Agent shall
promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it will notify the Agent, in writing, of its decision to do so not
more than 30 nor less than 20 days before said date. The Commitment of any
Lender that fails to accept (or fails to respond to) the Company's request for
extension of the Termination Date (a "Declining Lender") shall be terminated on
the Termination Date theretofore in effect (without regard to extension by other
Lenders). The Extending Lenders, or any of them, shall then have the right to
increase their respective Commitments by an aggregate amount up to the amount of
all Declining Lenders' Commitments, and, to the extent of any shortfall, the
Company shall have the right to require any Declining Lender to assign in full
its rights and obligations under this Agreement to an Eligible Assignee
designated by the Company that agrees to accept all of such rights and
obligations (a "Replacement Lender"), provided that (i) such increase and/or
such assignment is otherwise in compliance with Section 8.07, (ii) such
Declining Lender receives payment in full of an amount equal to the principal
amount of all Advances owing to such Declining Lender, together with accrued
interest thereon to the date of such assignment and all other amounts payable to
such Declining Lender under this Agreement and (iii) any such increase shall be
effective on the Termination Date theretofore in effect and any such assignment
shall be effective on the date specified by the Company and agreed to by the
Replacement Lender and the Agent. If (i) Extending Lenders and/or Replacement
Lenders provide Commitments in an aggregate amount equal to 51% of the aggregate
amount of the Commitments outstanding immediately prior to the Termination Date
in effect at the time the Company requests such extension, and (ii) no Default
shall have occurred and be continuing immediately prior to said Termination
Date, the Termination Date shall be extended by one year (except that, if the
date on which the Termination Date is to be extended is not a Business Day, such
Termination Date as so extended shall be the next preceding Business Day) from
the effective date set forth in an Extension Agreement, in substantially the
form in Exhibit A-3 hereto, which has been duly completed and signed by the
Company, the Agent and the Extending Lenders and Replacement Lenders party
thereto. Such Extension Agreement shall be executed and delivered no earlier
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-22-
than 30 days prior to the Termination Date then in effect and the effective date
shall be no earlier than 29 days prior to the Termination Date then in effect.
No extension of the Commitments pursuant to this Section 2.06(c) shall be
legally binding on any party hereto unless and until such party executes and
delivers a counterpart of such Extension Agreement.
SECTION 2.07. Interest on Revolving Credit Advances. Each Borrower shall
pay interest on the unpaid principal amount of each Revolving Credit Advance
made to such Borrower from the date of such Revolving Credit Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the last day
of each March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(b) Eurodollar Rate Advances. During such periods as such Revolving Credit
Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Revolving Credit Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Revolving Credit Advance plus
(y) the Applicable Margin, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
SECTION 2.08. Interest Rate Determination.
(a) If the Eurodollar Rate does not appear on Page 3750 of the Telerate
Service (or any successor page), each Reference Bank agrees to furnish to the
Agent timely information for the purpose of determining each Eurodollar Rate. If
the Eurodollar Rate does not appear on said Page 3750 (or any successor page),
and if any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate,
the Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Agent shall give prompt notice
to the Company and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07, and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.07(b).
(b) If, due to a major disruption in the interbank funding market with
respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii)
the obligation of the Lenders to
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-23-
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Company and the Lenders that
the circumstances causing such suspension no longer exist.
(c) If the Company shall fail to select the duration of any Interest Period
for any Eurodollar Rate Advances in accordance with the provisions contained in
the definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Company and the Lenders and the Company will be deemed to have
selected an Interest Period of one month.
(d) If the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall automatically Convert
into Base Rate Advances on the last day of the Interest Period applicable
thereto.
(e) Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
(f) If the Eurodollar Rate does not appear on Page 3750 of the Telerate
Service (or any successor page) and fewer than two Reference Banks furnish
timely information to the Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Company and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The Company
may on any Business Day, upon notice given to the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-24-
Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
Company.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances. The
Company may, upon notice not later than 11:00 A.M. (New York City time) on the
date of such payment, in the case of Base Rate Advances, and two Business Days'
notice, in the case of Eurodollar Rate Advances, to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Company shall, prepay the outstanding principal amount of
the Revolving Credit Advances comprising part of the same Revolving Credit
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Company shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(d).
SECTION 2.11. Increased Costs.
(a) If, due to either (i) the introduction of or any change in any law or
regulation or in the interpretation or administration of any law or regulation
by any governmental authority charged with the interpretation or administration
thereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority that would be complied with generally by
similarly situated banks acting reasonably (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
by an amount deemed by such Lender to be material, then the Company shall from
time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Company and the Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error. Notwithstanding the foregoing, no Lender shall be entitled to request
compensation under this paragraph with respect to any Competitive Bid Advance if
the change giving rise to such request was applicable to such Lender at the time
of submission of such Lender's offer to make such Competitive Bid Advance.
(b) If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other governmental or regulatory authority
which becomes effective after the date hereof, there shall be any increase in
the amount of capital required or expected to be maintained by any Lender or any
corporation controlling such Lender and the amount of such capital is increased
by or based upon the existence of such Lender's Advances or commitment to lend
hereunder and other commitments of this type by an amount deemed by such Lender
to be material, then, upon demand by such Lender (with a copy of such demand to
the Agent), the Company shall pay to
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-25-
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's Advances or commitment to lend hereunder. A certificate as to
such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes as to the calculations therein, absent
manifest error. Such certificate shall be in reasonable detail and shall certify
that the claim for additional amounts referred to therein is generally
consistent with such Lender's treatment of similarly situated customers of such
Lender whose transactions with such Lender are similarly affected by the change
in circumstances giving rise to such payment, but such Lender shall not be
required to disclose any confidential or proprietary information therein.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent (and provide to the Company an
opinion of counsel to the effect) that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar
Rate Advance or LIBO Rate Advance, as the case may be, of such Lender will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a), as the case may
be, and (ii) the obligation of such Lender to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Company and such Lender that the circumstances causing
such suspension no longer exist and such Lender shall make the Base Rate
Advances in the amount and on the dates that it would have been requested to
make Eurodollar Rate Advances had no such suspension been in effect.
SECTION 2.13. Payments and Computations.
(a) Each Borrower shall make each payment hereunder not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to the Agent at
the Agent's Account in same day funds. The Agent will promptly thereafter cause
to be distributed like funds relating to the payment of principal or interest or
facility fees or usage fees ratably (other than amounts payable pursuant to
Section 2.03, 2.04(b), 2.05(b), 2.11, 2.14 or 8.04(d)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-26-
(b) All computations of interest based on the Base Rate and of facility
fees and of usage fees shall be made by the Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees or usage fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest or facility fee or usage fee, as the case may
be; provided, however, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Agent shall have received notice from the Company prior to
the date on which any payment is due to the Lenders hereunder that a Borrower
will not make such payment in full, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes.
(a) Each Lender is exempt from any withholding imposed under the laws of
the United States in respect of any fees, interest or other payments to which it
is entitled pursuant to this Agreement or any promissory notes issued hereunder
(the "Income") because (i) the Lender is organized under the laws of the United
States; (ii) the Income is effectively connected with the conduct of a trade or
business within the United States within the meaning of Section 871 of the
Internal Revenue Code; or (iii) the Income is eligible for an exemption by
reason of a tax treaty. The Agent is exempt from any withholding tax imposed
under the laws of the United States in respect of the Income because the Agent
is organized under the laws of the United States.
(b) Each Lender organized under the laws of a jurisdiction outside the
United States (each, a "Foreign Lender") shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender, and
on the date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Foreign Lender and from time to time thereafter
if requested in writing by the Company or the Agent, provide the Agent and the
relevant Borrower with Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Foreign Lender is exempt or entitled to a reduced
rate of United States
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-27-
withholding tax on any Income that is the subject of such forms. If the form
provided by a Foreign Lender at the time such Foreign Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, or in excess of the rate applicable to the Foreign Lender
assignor on the date of the Assignment and Acceptance pursuant to which it
became a Foreign Lender, in the case of each other Foreign Lender, withholding
tax at such rate shall be considered excluded from Taxes as defined in Section
2.14(c).
(c) Based on Section 2.14(a) and (b), any and all payments by any Borrower
hereunder or under any promissory notes issued hereunder shall be made free and
clear of and without deduction for any present United States federal income
withholding taxes imposed on a Foreign Lender under the Internal Revenue Code
(such withholding taxes being hereinafter referred to as "Taxes").
(d) If, as a result of the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any United States law or any
tax treaty (or in the application or official interpretation of any law or any
tax treaty) that occurs on or after the date a Foreign Lender first becomes a
party to this Agreement (a "Change in Law"), a Foreign Lender cannot comply with
Section 2.14(b) or, if despite such compliance, any Borrower shall be required
to deduct any Taxes from or in respect of any Income, then: (i) the sum payable
to such Foreign Lender shall be increased as may be necessary so that after
making all required deductions for such Taxes (including deductions applicable
to additional sums payable under this Section 2.14) such Foreign Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. Notwithstanding the foregoing, each
Borrower shall be entitled to pay any Taxes in any lawful manner so as to reduce
any deductions and such Foreign Lender shall to the extent it is reasonably able
provide any documentation or file any forms as may be required by the Internal
Revenue Service or any other foreign governmental agency. In addition, if any
Foreign Lender or the Agent (in lieu of such Foreign Lender), as the case may
be, is required to pay directly any Taxes as a result of a Change in Law because
a Borrower cannot or does not legally or timely do so, the Company shall
indemnify such Foreign Lender or Agent for payment of such Taxes, without
duplication of, or increase in, the amount of Taxes otherwise due to the Foreign
Lender.
(e) In addition, the Company agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (excluding any income or franchise taxes, business taxes or capital taxes
of any nature) that arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement (hereinafter referred to as "Other
Taxes"). If a Lender is required to pay directly Other Taxes because a Borrower
cannot or does not legally or timely do so, the Company shall indemnify such
Lender for such payment of Other Taxes.
(f) Within 30 days after the date of any payment of Taxes or foreign
withholding taxes, the Company shall furnish to the Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof. Prior to making any
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-28-
payment hereunder by or on behalf of any Borrower through an account or branch
outside the United States or on behalf of any Borrower by a payor that is not a
United States person (a "Foreign Payment"), such Borrower shall determine that
no foreign withholding taxes are payable in respect thereof, and at its expense,
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion of
counsel acceptable to the Agent, in either case stating that such Foreign
Payment is exempt from or not subject to foreign withholding taxes. Each Lender
shall cooperate with each Borrower's efforts described in this subsection by
providing to the extent reasonably within its means any forms requested by such
Borrower substantiating an exemption from foreign withholding taxes required by
any governmental agency. For purposes of this subsection (f), the terms "United
States" and "United States person" shall have the meaning specified in Section
7701 of the Internal Revenue Code. If, as a result of the enactment,
promulgation, execution or ratification of, or any change in or amendment to,
any applicable foreign law or any tax treaty (or in the application or official
interpretation of any law or any tax treaty) that occurs on or after the date a
tax opinion is rendered pursuant to the terms of this subsection, and which
renders such tax opinion incorrect as to the absence of any foreign withholding
tax (a "Foreign Change in Law"), any Borrower shall be required to deduct any
foreign withholding taxes from or in respect of any Income, then: (i) the sum
payable to the applicable Lender shall be increased as may be necessary so that
after making all required deductions for foreign withholding taxes (including
deductions applicable to additional sums payable under this Section 2.14) such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Notwithstanding
the foregoing, each Borrower shall be entitled to pay any foreign withholding
taxes in any lawful manner so as to reduce any deductions and such Lender shall
to the extent it is reasonably able provide any documentation or file any forms
as may be required by the Internal Revenue Service or any other foreign
governmental agency. In addition, if any Lender is required to pay directly any
foreign withholding tax in respect of any Foreign Payments made pursuant to this
Agreement because a Borrower cannot or does not legally or timely do so, the
Company shall indemnify such Lender for payment of such tax.
(g) For any period with respect to which a Lender has failed to comply with
the requirements of subsection (b) or (f) relating to certain forms intended to
reduce withholding taxes (other than if such failure is due to a Change in Law
or a Foreign Change in Law), such Lender shall not be entitled to
indemnification under subsection (d) or (f).
(h) Upon a Change in Law or the imposition of any foreign withholding tax
in respect of Foreign Payments, a Lender shall, upon the written request of and
at the expense of the Company, use reasonable efforts to change the jurisdiction
of its Applicable Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such taxes that may thereafter accrue and
would not, in the reasonable judgment of such Lender, cause the imposition on
such Lender of any material legal or regulatory burdens.
(i) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of the Company contained in
this Section 2.14 shall
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-29-
survive the payment in full of principal and interest hereunder until the
applicable statute of limitations relating to the payment of any Taxes under
Section 2.14(d) has expired.
(j) Any request by any Lender for payment of any amount under this Section
2.14 shall be accompanied by a certification that such Lender's claim for said
amount is generally consistent with such Lender's treatment of similarly
situated customers of such Lender whose transactions with such Lender are
similarly affected by the change in circumstances giving rise to such payment,
but such Lender shall not be required to disclose any confidential or
proprietary information therein.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.05(b), 2.11, 2.14 or 8.04(d)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and the Company agrees that such proceeds shall be used) for general
corporate purposes of the Company and its Subsidiaries, including commercial
paper backstop.
SECTION 2.17. Borrowings by Borrowing Subsidiaries; Substitution of
Borrower.
(a) The Company may, at any time or from time to time, designate one
or more Subsidiaries (including the Guarantor) as Borrowers hereunder by
furnishing to the Agent a letter (a "Designation Letter") in duplicate, in
substantially the form of Exhibit D, duly completed and executed by the
Company and such Subsidiary. Upon any such designation of a Subsidiary,
such Subsidiary shall be a Borrowing Subsidiary and a Borrower entitled to
borrow Revolving Credit Advances and Competitive Bid Advances on and
subject to the terms and conditions of this Agreement.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-30-
(b) If all principal of and interest on all Advances made to any
Borrowing Subsidiary have been paid in full, the Company may terminate the
status of such Borrowing Subsidiary as a Borrower hereunder by furnishing
to the Agent a letter (a "Termination Letter") in substantially the form of
Exhibit F, duly completed and executed by the Company. Any Termination
Letter furnished hereunder shall be effective upon receipt by the Agent,
which shall promptly notify the Lenders, whereupon the Lenders shall, upon
payment in full of all amounts owing by such Borrower hereunder, promptly
deliver to the Company (through the Agent) the promissory notes, if any, of
such former Borrower. Notwithstanding the foregoing, the delivery of a
Termination Letter with respect to any Borrower shall not terminate (i) any
obligation of such Borrower that remains unpaid at the time of such
delivery (including without limitation any obligation arising thereafter in
respect of such Borrower under Section 2.11 or 2.14) or (ii) the
obligations of the Company under Article IX with respect to any such unpaid
obligations; provided, that if the status of such Borrowing Subsidiary has
been terminated as aforesaid because the Company has sold or transferred
its interest in such Subsidiary, and the Company so certifies to the Agent
at the time of delivery of such Termination Letter, and subject to payment
of said principal and interest, (i) such Subsidiary shall, automatically
upon the effectiveness of the delivery of such Termination Letter and
certification, cease to have any obligation under this Agreement and (ii)
the Company shall automatically be deemed to have unconditionally assumed,
as primary obligor, and hereby agrees to pay and perform, all of such
obligations.
(c) In addition to the foregoing, the Company may, at any time when
there are no Advances outstanding hereunder and upon not less than 10
Business Days' notice, irrevocably elect to terminate its right to be a
Borrower hereunder as of the date (which shall be a Business Day) specified
in such Substitution Letter (the "Substitution Date") and designate the
Guarantor as a Borrower hereunder by furnishing to the Agent (x) a letter
(a "Substitution Letter"), in substantially the form of Exhibit E duly
completed and executed by the Company and the Guarantor, (y) a certificate
signed by a duly authorized officer of the Company, and a certificate
signed by a duly authorized officer of the Guarantor, each dated the
Substitution Date, stating that:
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
clause (ii) thereof)) are correct in all material respects on and as
of the Substitution Date, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result
from such designation, that constitutes a Default;
and (z) the Agent shall have received such other corporate documents,
resolutions and legal opinions relating to the foregoing as it, or any Lender
through the Agent, may reasonably request.
SECTION 2.18. Mitigation Obligations. If any Lender requests compensation
under Section 2.11, or if the obligation of any Lender to make or continue
Advances as, or
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-31-
Convert Advances into, Eurodollar Rate Advances is suspended pursuant to Section
2.12, then, upon the written request of the Company, such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Advances hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designations or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.11 or would cause such Lender not to be subject to
such suspension, as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not, in the reasonable
judgment of such Lender, cause imposition on such Lender of any material legal
or regulatory burdens or otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ARTICLE II
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) As of the Effective Date, there shall have occurred no Material Adverse
Change since December 27, 2003 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit,
investigation, litigation or proceeding affecting the Company, or any of its
Subsidiaries (including the Guarantor) pending or, to the knowledge of the
Company's or the Guarantor's executive officers, threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) could reasonably be likely to affect the
legality, validity or enforceability of this Agreement or the consummation of
the transactions contemplated hereby.
(c) As of the Effective Date, nothing shall have come to the attention of
the Lenders during the course of their due diligence investigation to lead them
to believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect.
(d) As of the Effective Date, all governmental and third party consents and
approvals necessary in connection with the transactions contemplated hereby
shall have been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect.
(e) As of the Effective Date, the Company shall have paid all accrued fees
and expenses of the Agent and the Lenders (including the accrued fees and
expenses of counsel to the Agent, to the extent invoiced at least one Business
Day prior to the Effective Date).
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-32-
(f) On the Effective Date, the following statements shall be true and the
Agent shall have received for the account of each Lender a certificate signed by
a duly authorized officer of the Company dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are
correct in all material aspects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(g) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for any notes requested by the Lenders) in sufficient copies for
each Lender:
(i) To the extent any Lender shall have requested, at least one
Business day prior to the Effective Date that its Revolving Credit Advances
be evidenced by a promissory note, a note payable to the order of such
Lender.
(ii) Certified copies of the resolutions of the Board of Directors of
the Company and of the Guarantor approving this Agreement, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of the
Company certifying the names and true signatures of the officers of the
Company authorized to sign this Agreement and the other documents to be
delivered hereunder.
(iv) A certificate of the Secretary or an Assistant Secretary of the
Guarantor certifying the names and true signatures of the officers of the
Guarantor authorized to sign this Agreement and the other documents to be
delivered hereunder.
(v) An opinion of Pamela C. McGuire, Esq., General Counsel of each of
the Company and the Guarantor, substantially in the form of Exhibit C-1
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(vi) A favorable opinion of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel for the Agent, substantially in the form of
Exhibit C-2 hereto.
(vii) Evidence of the termination of the Commitments as defined in the
$250,000,000 5-Year Credit Agreement dated as of April 30, 2003 and the
$250,000,000 364-Day Credit Agreement dated as of April 30, 2003, each
among the Company, the Guarantor, certain lenders and JPMorgan, as Agent,
and of the payment in full of any and all amounts payable thereunder.
(viii) The Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-33-
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and the acceptance
by any Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Company and such Borrower that
on the date of such Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof))
are correct in all material respects on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) in the case of the first Borrowing by a Borrowing Subsidiary, the
Agent shall have received such corporate documents, resolutions and legal
opinions relating to such Borrowing Subsidiary as the Agent may reasonably
require.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The
obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, and (ii) on the date of such
Competitive Bid Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by any Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Company and such Borrower
that on the date of such Competitive Bid Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01 (except
the representations set forth in the last sentence of subsection (e) thereof and
in subsection (f) thereof (other than clause (ii) thereof)) are correct in all
material respects on and as of the date of such Competitive Bid Borrowing,
before and after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
and
(b) No event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-34-
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the proposed Effective
Date, as notified by the Company to the Lenders, specifying its objection
thereto. The Agent shall promptly notify the Lenders of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each of
the Company and the Guarantor (each, a "Loan Party") represents and warrants as
follows:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and the Guarantor is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) The execution, delivery and performance by each Loan Party of this
Agreement and the consummation of the transactions contemplated hereby are
within such Loan Party's powers, have been duly authorized by all necessary
corporate or other action, and do not contravene (i) its charter, by-laws or
other organizational documents or (ii) any law or contractual restriction
binding on or materially affecting such Loan Party.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery and performance by either Loan
Party of this Agreement.
(d) This Agreement has been duly executed and delivered by each Loan Party.
This Agreement is the legal, valid and binding obligation of each Loan Party
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as
at December 27, 2003, and the related Consolidated statements of operations and
cash flows of the Company and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of KPMG Peat Marwick, independent public accountants,
fairly present the Consolidated financial condition of the Company and its
Subsidiaries as at such date and the Consolidated results of the operations of
the Company and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
Since December 27, 2003, there has been no Material Adverse Change that has not
been publicly disclosed.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-35-
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting either Loan Party before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) would reasonably be likely to affect the
legality, validity or enforceability of this Agreement or any promissory note
issued under this Agreement, if any, or the consummation of the transactions
contemplated hereby.
(g) It is not engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock and no proceeds of any Advance will be
used for the purpose (whether immediate, incidental or ultimate) of buying or
carrying any Margin Stock or to extend credit to others for the purpose (whether
immediate, individual or ultimate) of buying or carrying any Margin Stock, in
either case in a manner that would cause the Advances or any Lender to be in
violation of Regulation U.
(h) Following application of the proceeds of each Advance, not more than 25
percent of the value of the assets (either of any Borrower only or of the
Company and its Subsidiaries or the Guarantor and its Subsidiaries, in each case
on a Consolidated basis) subject to the provisions of Section 5.02(a) or (b)(ii)
or subject to any restriction contained in any agreement or instrument between
it and any Lender or any Affiliate of any Lender relating to Debt and within the
scope of Section 6.01(d) will be Margin Stock.
(i) Neither Loan Party is an "investment company", a company "controlled
by", or "promoter" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
Neither the making of any Advances nor the application of the proceeds or
repayment thereof by any Borrower will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws, except where failure to so comply
would not, and would not be reasonably likely to, have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-36-
Loan Party nor any of its Subsidiaries shall be required to pay or discharge any
such tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and such Lien would be
reasonably likely to have a Material Adverse Effect.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Material Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that each Loan Party and its Material Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided further that neither
Loan Party nor any of its Material Subsidiaries shall be required to preserve
any right or franchise if the Board of Directors of such Loan Party or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of such Loan Party or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any material
respect to such Loan Party, such Subsidiary or the Lenders.
(d) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the
Company, the Consolidated balance sheet of the Company and its Subsidiaries
as of the end of such quarter and Consolidated statements of operations and
cash flows of the Company and its Subsidiaries for the period commencing at
the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Company as having been prepared in
accordance with GAAP, it being agreed that delivery of the Company's
Quarterly Report on Form 10-Q will satisfy this requirement;
(ii) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Company, a copy of the annual audit report
for such year for the Company and its Subsidiaries, containing the
Consolidated balance sheet of the Company and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of operations and cash
flows of the Company and its Subsidiaries for such Fiscal Year, in each
case accompanied by an opinion by KPMG Peat Marwick or other independent
public accountants of nationally recognized standing, it being agreed that
delivery of the Company's Annual Report on Form 10-K will satisfy this
requirement;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Company setting forth
details of such Default and the action that the Company has taken and
proposes to take with respect thereto; and
(iv) promptly after the sending or filing thereof, copies of all
annual reports and proxy solicitations that the Company sends to any of its
securityholders, and copies of all reports on Form 8-K that the Company or
any Subsidiary files with the Securities and Exchange Commission.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-37-
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, neither Loan Party
will:
(a) Secured Debt. Create or suffer to exist, or permit any of its
Restricted Subsidiaries or the Guarantor to create or suffer to exist, any Debt
secured by a Lien on any Principal Property or on any shares of stock of or Debt
of any Restricted Subsidiary or the Guarantor unless such Loan Party or such
Restricted Subsidiary secures or causes such Restricted Subsidiary or the
Guarantor to secure the Advances and all other amounts payable under this
Agreement equally and ratably with such secured Debt, so long as such secured
Debt shall be so secured, unless after giving effect thereto the aggregate
amount of all such Debt so secured does not exceed 15% of Consolidated Net
Tangible Assets; provided that the foregoing restriction does not apply to Debt
secured by:
(i) Liens existing prior to the date hereof;
(ii) Liens on property of, or on shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary and not created with a view to circumventing the restrictions of
this Section 5.02(a);
(iii) Liens in favor of a Loan Party or any Restricted Subsidiary;
(iv) Liens in favor of any governmental bodies to secure progress or
advance payments;
(v) Liens on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or liens securing Debt incurred to finance all or any part of the purchase
price or cost of construction of property (or additions, substantial
repairs, alterations or substantial improvements thereto), provided that
such Lien and the Debt secured thereby are incurred within 365 days of the
later of acquisition or completion of construction (or addition, repair,
alteration or improvement) and full operation thereof; and
(vi) any extension, renewal or refunding of Debt referred to in the
foregoing clauses (i) to (v), inclusive.
(b) Mergers, Etc. (i) Merge or consolidate with or into any corporation or
(ii) sell, lease, transfer or otherwise dispose of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, unless the
Company or the Guarantor would be the acquiring or surviving party in such
transaction and no Event of Default shall have occurred and be continuing at the
time of such proposed transaction or would result therefrom.
(c) Subsidiary Debt. Permit any Restricted Subsidiary to create, incur,
assume or permit to exist any Debt, except:
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-38-
(i) Debt of the Borrowing Subsidiaries, if any, created hereunder;
(ii) Debt existing on the Effective Date;
(iii) Debt of any Subsidiary to any Loan Party or any other
Subsidiary;
(iv) Debt of any Person that becomes a Subsidiary after the date
hereof; provided that such Debt exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary;
(v) any refinancing, refunding or replacement of any Debt permitted
under clause (ii) through (iv) above; and
(vi) other Debt in an aggregate principal amount not exceeding 15% of
Consolidated Net Tangible Assets, computed as of the last day of the then
most recently concluded fiscal quarter of the Company, at any time
outstanding.
(d) Restrictive Agreements. Neither Loan Party will enter into, incur or
permit to exist any agreement or other arrangement that prohibits or restricts
the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to, or otherwise transfer assets to the Company; provided that the foregoing
shall not apply to (i) restrictions and conditions imposed by law or by this
Agreement, (ii) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iii) restrictions or conditions imposed by
any agreement relating to secured Debt permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Debt, (iv) customary provisions in leases and other contracts restricting the
assignment thereof, (v) any agreement in effect on the Effective Date, as any
such agreement is in effect on such date, (vi) any agreement binding upon such
Subsidiary prior to the date on which such Subsidiary was acquired by the
Company and outstanding on such date, (vii) customary net worth and other
financial maintenance covenants in an agreement relating to Debt or other
obligations incurred in compliance with this Agreement, and (viii) any agreement
refinancing, renewing or replacing any agreement or Debt referred to in (i)
through (vii) above, provided that the relevant provisions are no more
restrictive than those in the agreement or Debt being refinanced, renewed or
replaced.
(e) Ownership. In the case of the Company, cease to own, legally and
beneficially, 75% or more of the membership interests in the Guarantor.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Debt to Capitalization Ratio. Permit the Debt to Capitalization Ratio
as at the last day of any Fiscal Quarter that is not an Alternate Covenant Date
to exceed 0.75 to 1.0.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-39-
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as
at the last day of any Fiscal Quarter that is an Alternate Covenant Date to
exceed 5.0 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance within five
days after the same becomes due and payable; or any Borrower shall fail to pay
any interest, fees or any other amount under this Agreement within five Business
Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party herein or by any
Borrower (or any of its officers) in connection with this Agreement (including
without limitation by any Borrowing Subsidiary pursuant to any Designation
Letter) shall prove to have been incorrect in any material respect when made; or
(c) Any Loan Party shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d), 5.02 or 5.03, or (ii) any Loan Party
shall fail to perform or observe any other term, covenant or agreement contained
in this Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been given
to either Loan Party by the Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $75,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt or permit (with or without
the giving of notice, the lapse of time or both) the holder or holders of such
Debt or any trustee or agent on its or their behalf to cause any such Debt to
become due prior to its scheduled maturity; or any such Debt shall be declared
to be due and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-40-
(e) Any Loan Party or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against such Loan Party
or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or such Loan Party of any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of $75,000,000
shall be rendered against any Loan Party or any of its Material Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; provided, however, that
any such judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the defendant and the
insurer covering payment thereof and (ii) such insurer, which shall be rated at
least "A" by A.M. Best Company, has been notified of, and has not disputed the
claim made for payment of, the amount of such judgment or order; or
(g) Any event, action or condition with respect to an employee benefit plan
of the Company subject to Title IV of ERISA results in any penalty or action
pursuant to ERISA that has a material adverse effect on the business or
financial condition of either Loan Party and its Subsidiaries, taken as a whole;
or
(h) The Master Bottling Agreement ceases to be valid and binding and in
full force and effect; or Pepsi denies that it has any liability or obligation
under the Master Bottling Agreement and Pepsi ceases performance thereunder; or
(i) A Change of Control shall occur;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-41-
notice of any kind, all of which are hereby expressly waived by the Company;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Loan Party or any Borrowing Subsidiary under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, protest or any notice of any kind, all of which are hereby
expressly waived by each Loan Party.
ARTICLE VII
THE AGENT
Each of the Lenders hereby irrevocably appoints the Agent as its agent and
authorizes the Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Loan Parties or any Subsidiary or other Affiliate thereof as if it were not
the Agent hereunder.
The Agent shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Agent is required to exercise in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 8.01), and (c) except as expressly set
forth herein, the Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Loan Parties
or any if their Subsidiaries that is communicated to or obtained by the bank
serving as Agent or any of its Affiliates in any capacity. The Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
8.01) or in the absence of its own gross negligence or wilful misconduct. The
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Agent by a Loan Party or a Lender, and
the Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with
this Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Agent.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-42-
The Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. The Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The Agent
may consult with legal counsel (who may be counsel for any Loan Party),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Agent may perform any and all of its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
in this paragraph, the Agent may resign at any time by notifying the Lenders and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor agent approved by the Company, which approval will
not be unreasonably withheld or delayed; provided that such approval shall not
be required if an Event of Default has occurred and is continuing. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a commercial bank organized under the
laws of the United States or any State thereof, having a combined capital and
surplus of at least $50,000,000 with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointments as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Company to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Company and such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 8.04 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-43-
None of the Persons identified on the cover page hereof as Joint Lead
Arrangers and Book Managers or Syndication Agents shall, in their roles as such,
have any responsibilities or liabilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) except pursuant to
Section 2.05(b), 2.05(c), 2.15 or 2.17, increase the Commitments of the Lenders
or subject the Lenders to any additional obligations, (b) reduce the principal
of, or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (c) postpone any date fixed for any payment of principal of,
or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (e) release the guarantee as set forth in Section 9.01 or
10.01, or (f) amend this Section 8.01; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Company, any Borrower or the Guarantor, to the Company at its address at One
Pepsi Way, Somers, New York 10589, Attention: General Counsel, Telecopier No.
(914) 767-1161, with a copy to Secretary, Telecopier No. (914) 767-1161; if to
any Initial Lender, at its Domestic Lending Office specified opposite its name
on Schedule 1 hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at JPMorgan Chase Bank, Loan & Agency
Services, 1111 Fannin, Floor 10, Houston, Texas 77002, Attention: Cherry Arnaez,
Telecopier No. (713) 750-2782, with a copy to JPMorgan Chase Bank, 270 Park
Avenue, New York, New York 10017, Attention: Buddy Wuthrich, Telecopier No.
(212) 270-5100; or, as to the Company, any Borrower, the Guarantor or the Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Company and the Agent.
All such notices and communications shall, when mailed, telecopied, telegraphed
or telexed, be effective when deposited in the mails, telecopied, delivered to
the telegraph company or confirmed by telex answer back, respectively,
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-44-
except that notices and communications to the Agent pursuant to Article II, III
or VII shall not be effective until received by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Company agrees to pay on demand all costs and expenses of the Agent
as set forth in the fee letter between the Company and the Agent. The Company
further agrees to pay on demand all reasonable costs and expenses of the Agent
and the Lenders, if any (including, without limitation, reasonable counsel fees
and expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with this Agreement, any promissory note issued
hereunder, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by any Borrower, the Guarantor, their
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In no event shall
any party hereto be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including, without limitation, any loss of
profits, business or anticipated savings).
(c) To the extent that the Company fails to pay any amount required to be
paid by it to the Agent under paragraph (a) or (b) of this Section 8.04, each
Lender severally agrees to pay to the Agent such Lenders' Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-45-
expense, as the case may be, was incurred by or asserted against the Agent in
its capacity as such.
(d) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance or LIBO Rate Advance is made by any Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, the Company shall, upon demand by such Lender (with a copy
of such demand to the Agent), pay to the Agent for the account of such Lender
any amounts required to compensate such Lender for any additional losses, costs
or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of the Company contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party or any Borrower
against any and all of the obligations of such Loan Party or such Borrower now
or hereafter existing under this Agreement, whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Company after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Sections 2.01 and 2.03, which shall only become effective upon satisfaction
of the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Loan Parties and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Loan Parties,
each Subsidiary Borrower (if any), the Agent and each Lender and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-46-
SECTION 8.07. Assignments and Participations.
(a) Each Lender may, upon ten days' notice to the Agent and with the
consent of the Company (which shall not be unreasonably withheld) and, if
demanded by the Company (following a demand by such Lender pursuant to Section
2.11 or Section 2.14 or a suspension of such Lender's obligation to make or
continue Advances as, or convert Advances into, Eurodollar Rate Advances
pursuant to Section 2.12) upon at least ten days' notice to such Lender and the
Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Revolving Credit Advances owing to it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances or Competitive Bid Advances
owing to it), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than the lesser of (x)
$25,000,000 (and, if greater, shall be in an integral multiple of $1,000,000 in
excess thereof) and (y) the smallest initial Commitment of any Initial Lender,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Company pursuant to this Section
8.07(a) shall be arranged by the Company after consultation with the Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Company or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment (other
than any Borrower) shall execute and deliver to the Agent, for its acceptance
and recording in the Register (as defined in clause (d) below), an Assignment
and Acceptance, together with a processing and recordation fee of $3,500. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance,
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-47-
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and, with
respect to Lenders, the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and each Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Loan Parties or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (a "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Agent and the Company, the option to provide to the Company all or any part of
any Advance that such Granting Lender would otherwise be obligated to make to
the Company pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-48-
Lender to the same extent, and as if, such Advance were made by such Granting
Lender. Each party hereto agrees that no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement (all liability for which
shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 8.07(e), any SPC may (i) with notice to, but without the prior
written consent of, the Company and the Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Advances to the
Granting Lender or to any financial institutions (consented to by the Company
and the Agent) providing liquidity and/or credit support to or for the account
of any SPC to support the funding or maintenance of Advances and (ii) disclose
on a confidential basis any non-public information relating to its Advances to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC.
(f) Each Lender may, upon notice to the Agent and the Company, sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Advances owing to it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any promissory note issued or assigned to it hereunder, (iv) the
Borrowers, the Guarantor, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant any information
relating to any Loan Party or any Borrower furnished to such Lender by or on
behalf of any Loan Party or any Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
relating to the Loan Parties or the Borrowers received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement or any promissory note issued to such Lender
hereunder (including, without limitation, the
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-49-
Advances owing to it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Company, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
Notwithstanding the foregoing and any other provision herein, the Loan Parties
and any Lender (and each employee, representative or other agent of the Loan
Parties and any Lender) may disclose to any and all Persons, without limitation
of any kind, the U.S. federal income tax treatment and tax structure, if any, of
the transactions contemplated by this Agreement (the "Transactions"), other than
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws. For the purposes of this Section 8.08, "tax
structure" is limited to any fact relevant to understanding the U.S. federal
income tax treatment of the Transactions and does not include information
relating to the identity of the Loan Parties.
SECTION 8.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement in the courts of any jurisdiction.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-50-
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or
federal court sitting in New York City. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. WAIVER OF JURY TRIAL. EACH BORROWER, THE GUARANTOR, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
SECTION 8.13. USA PATRIOT Act. Each Lender hereby notifies each Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of the Borrowers and other information
that will allow such Lender to identify the Borrowers in accordance with the
Act.
ARTICLE IX
COMPANY GUARANTEE
SECTION 9.01. Company Guarantee. Subject to the provisions of this Article
IX, the Company unconditionally and irrevocably guarantees to each Lender and
the Agent and their respective successors and assigns, that: (i) the principal
of, premium, if any, and interest on the Advances to each Borrowing Subsidiary
and, following the Substitution Date, the Guarantor (each a "Guaranteed Party")
and any promissory notes issued by any Guaranteed Party hereunder will be duly
and punctually paid in full when due, whether at maturity, by acceleration, by
redemption or otherwise, and interest on overdue principal, and premium, if any,
and (to the extent permitted by law) interest on any interest, if any, on the
Advances and all other obligations of the Guaranteed Parties to the Lenders or
the Agent hereunder (including fees and expenses) will be promptly paid in full,
all in accordance with the terms hereof; and (ii) in case of any extension of
time of payment or renewal of any of the Advances to any Guaranteed Party or any
of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed, or failing performance of any other obligation of the
Guaranteed Parties to the Lenders or the Agent, for whatever reason, the Company
will be obligated to pay, or to perform or to cause the performance of, the same
immediately. An Event of Default under this Agreement shall constitute an event
of default under this Guarantee, and shall entitle the Lenders to accelerate the
obligations of the
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-51-
Company under this Guarantee in the same manner and to the same extent as the
obligations of the Guaranteed Parties.
The Company hereby agrees that its obligations under this Guarantee shall
be unconditional, irrespective of the validity, regularity or enforceability of
this Agreement, any Designation Letter or the Substitution Letter, the absence
of any action to enforce the same, any waiver or consent by any Lender or the
Agent of this Agreement any Designation Letter or the Substitution Letter, with
respect to any thereof, the entry of any judgment against any Guaranteed Party,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Company. The Company
hereby waives and relinquishes: (a) any right to require the Agent, the Lenders
or any Guaranteed Party (each, a "Benefitted Party") to proceed against any
Guaranteed Party or any other Person or to proceed against or exhaust any
security held by a Benefitted Party at any time or to pursue any other remedy in
any secured party's power before proceeding against the Company; (b) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefitted Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest and
notice of any kind (except as expressly required by this Agreement), including
but not limited to notice of the existence, creation or incurring of any new or
additional Debt or obligation or of any action or non-action on the part of the
Company, any Benefitted Party, any creditor of the Company or any Guaranteed
Party or on the part of any other Person whomsoever in connection with any
obligations the performance of which are guaranteed under this Guarantee; (d)
any defense based upon an election of remedies by a Benefitted Party, including
but not limited to an election to proceed against the Company or any other
Guaranteed Party for reimbursement; (e) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of the
principal; (f) any defense arising because of a Benefitted Party's election, in
any proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code. The Company hereby covenants that this Guarantee will not be discharged
except by payment in full of all principal, premium, if any, and interest on the
Advances made to each Guaranteed Party and all other costs provided for under
this Agreement in respect thereof. This is a Guarantee of payment and not of
collectibility.
If any Lender or the Agent is required by any court or otherwise to return
to either the Company or any Guaranteed Party, or any trustee or similar
official acting in relation to either the Company or any Guaranteed Party, any
amount paid by the Company or any Guaranteed Party to the Agent or such Lender,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Company agrees that it will not be entitled to any
right of subrogation in relation to the Lenders or the Agent in respect of any
obligations guaranteed under this Guarantee until payment in full of all
obligations guaranteed hereby. The Company agrees that, as between it, on the
one hand, and the Lenders and the Agent, on the other hand, (x) the maturity of
the obligations guaranteed under this Guarantee may be accelerated as provided
in Article VI hereof for the purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-52-
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article VI hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by such Company for the purpose
of this Guarantee.
ARTICLE X
SUBSIDIARY GUARANTEE
SECTION 10.01. Subsidiary Guarantee. Subject to the provisions of this
Article X, the Guarantor unconditionally and irrevocably guarantees to each
Lender and the Agent and their respective successors and assigns, that: (i) the
principal of, premium, if any, and interest on the Advances and any promissory
note issued hereunder will be duly and punctually paid in full when due, whether
at maturity, by acceleration, by redemption or otherwise, and interest on
overdue principal, and premium, if any, and (to the extent permitted by law)
interest on any interest, if any, on the Advances, any promissory note issued
hereunder and all other obligations of the Company to the Lenders or the Agent
hereunder (including fees and expenses) will be promptly paid in full, all in
accordance with the terms hereof; and (ii) in case of any extension of time of
payment or renewal of any of the Advances or any of such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Lenders or the Agent,
for whatever reason, the Guarantor will be obligated to pay, or to perform or to
cause the performance of, the same immediately. An Event of Default under this
Agreement shall constitute an event of default under this Guarantee, and shall
entitle the Lenders to accelerate the obligations of the Guarantor under this
Guarantee in the same manner and to the same extent as the obligations of the
Company.
The Guarantor hereby agrees that its obligations under this Guarantee shall
be unconditional, irrespective of the validity, regularity or enforceability of
this Agreement, the absence of any action to enforce the same, any waiver or
consent by any Lender or the Agent of this Agreement with respect to any
thereof, the entry of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of the Guarantor. The Guarantor hereby waives and
relinquishes: (a) any right to require the Agent, the Lenders or the Company
(each, a "Benefitted Person") to proceed against the Company or any other Person
or to proceed against or exhaust any security held by a Benefitted Person at any
time or to pursue any other remedy in any secured party's power before
proceeding against the Guarantor; (b) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of any other Person or
Persons or the failure of a Benefitted Person to file or enforce a claim against
the estate (in administration, bankruptcy or any other proceeding) of any other
Person or Persons; (c) demand, protest and notice of any kind (except as
expressly required by this Agreement), including but not limited to notice of
the existence, creation or incurring of any new or additional Debt or obligation
or of any action or non-action on the part of the Guarantor, the Company, any
Benefitted Person, any creditor of the Guarantor, the Company or on the part of
any other Person whomsoever in connection with any obligations the performance
of which are guaranteed under this Guarantee; (d) any defense based
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-53-
upon an election of remedies by a Benefitted Person, including but not limited
to an election to proceed against the Guarantor for reimbursement; (e) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (f) any defense arising because of a
Benefitted Person's election, in any proceeding instituted under the Bankruptcy
Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g)
any defense based on any borrowing or grant of a security interest under Section
364 of the Bankruptcy Code. The Guarantor hereby covenants that this Guarantee
will not be discharged except by payment in full of all principal, premium, if
any, and interest on the Advances and all other costs provided for under this
Agreement. This is a Guarantee of payment and not of collectibility.
If any Lender or the Agent is required by any court or otherwise to return
to either the Company or the Guarantor, or any trustee or similar official
acting in relation to either the Company or the Guarantor, any amount paid by
the Company or the Guarantor to the Agent or such Lender, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Lenders or the Agent in respect of any obligations guaranteed
under this Guarantee until payment in full of all obligations guaranteed hereby.
The Guarantor agrees that, as between it, on the one hand, and the Lenders and
the Agent, on the other hand, (x) the maturity of the obligations guaranteed
under this Guarantee may be accelerated as provided in Article VI hereof for the
purposes hereof, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article VI hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purpose of this
Guarantee.
SECTION 10.02. Limitation of Guarantor's Liability. The Guarantor, and by
its acceptance hereof, each Lender, hereby confirms that it is the intention of
the parties hereto that this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
State law. To effectuate the foregoing intention, the Lenders and the Guarantor
hereby irrevocably agree that the obligations of the Guarantor under this
Article X shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of the Guarantor, result in the
obligations of the Guarantor under the Guarantee not constituting a fraudulent
transfer or conveyance under federal or state law.
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
-54-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
THE PEPSI BOTTLING GROUP, INC.,
as Borrower
By: /s/ Nicholas J. D'Alessandro
----------------------------
Name: Nicholas J. D'Alessandro
Title: Vice President and Treasurer
BOTTLING GROUP, LLC,
as Guarantor
By: /s/ Nicholas J. D'Alessandro
----------------------------
Name: Nicholas J. D'Alessandro
Title: Managing Director-Delegatee
JPMORGAN CHASE BANK,
as Agent
By: /s/ Laura J. Cumming
--------------------
Name: Laura J. Cumming
Title: Vice President
5-Year Credit Agreement
-----------------------
NY3:#7330584v6
COMMITMENT INITIAL LENDERS
- ---------- ---------------
$50,000,000 BANK OF AMERICA, N.A.
By: /s/David L. Catherall
---------------------
Name: David L. Catherall
Title: Vice President
$50,000,000 CITICORP USA, INC.
By: /s/ Judith Green
----------------
Name: Judith Green
Title: Vice President
$50,000,000 CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ Karl Studer
---------------
Name: Karl Studer
Title: Director
By: /s/ Daniel Ludwig
-----------------
Name: Daniel Ludwig
Title: Assistant Vice President
$50,000,000 DEUTSCHE BANK AG
NEW YORK BRANCH
By: /s/ Thomas A. Foley
-------------------
Name: Thomas A. Foley
Title: Director
By: /s/ Sonja K. Satl
-----------------
Name: Sonia K. Satl
Title: Vice President
Initial Lenders
---------------
NY3:#7330584v6
$50,000,000 JPMORGAN CHASE BANK
By: /s/ Laura J. Cumming
--------------------
Name: Laura J. Cumming
Title: Vice President
$40,000,000 LEHMAN BROTHERS BANK, FSB
By: /s/ Gary T. Taylor
------------------
Name: Gary T. Taylor
Title: Vice President
$40,000,000 THE NORTHERN TRUST COMPANY
By: /s/ John A. Konstantos
----------------------
Name: John A. Konstantos
Title: Vice President
$35,000,000 BANCO BILBAO VIZCAYA ARGENTARIA
By: /s/ Anne-Maureen Sarfati
------------------------
Name: Anne-Maureen Sarfati
Title: Vice President
Global Corporate Banking
By: /s/ John Martini
----------------
Name: John Martini
Title: Vice President
Corporate Banking
Initial Lenders
---------------
NY3:#7330584v6
-2-
$35,000,000 HSBC BANK USA
By: /s/ William B. Murray
---------------------
Name: William B. Murray
Title: Senior Vice President
$25,000,000 THE BANK OF NEW YORK
By: /s/ Joanna S. Bellocq
---------------------
Name: Joanna S. Bellocq
Title: Vice President
$25,000,000 ROYAL BANK OF CANADA
By:
---------------------
Name:
Title:
By: /s/ Suzanne Kaicher
---------------------
Name: Suzanne Kaicher
Title: Attorney-in-Fact
$20,000,000 STATE STREET BANK AND
TRUST COMPANY
By: /s/ Juan G. Sierra
------------------
Name: Juan G. Sierra
Title: Assistant Vice President
$15,000,000 COMERICA BANK
By: /s/ Stacey V. Judd
------------------
Name: Stacey V. Judd
Title: Assistant Vice President
$15,000,000 WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Caroline Gates
------------------
Name: Caroline Gates
Title: Vice President
$500,000,000 TOTAL OF THE COMMITMENTS
Initial Lenders
---------------
NY3:#7330584v6
-3-
SCHEDULE 1
LENDING OFFICES
---------------
==================== ============================= =============================
Lender Domestic Lending Office Eurodollar Lending Office
- -------------------- ----------------------------- -----------------------------
BANK OF AMERICA, N.A 901 Main Street, 14th Floor 901 Main Street, 14th Floor
Dallas, Texas 75202 Dallas, Texas 75202
- -------------------- ----------------------------- -----------------------------
Citicorp USA, Inc. 399 Park Avenue 399 Park Avenue
New York New York 10043 New York New York 10043
- -------------------- ----------------------------- -----------------------------
CREDIT SUISSE 11 Madison Avenue Credit Suisse First
FIRST BOSTON, New York, New York, 10010 Boston Cayman Islands Branch
CAYMAN ISLANDS c/-11 Madison Avenue
BRANCH New York, New York 10010
- -------------------- ----------------------------- -----------------------------
DEUTSCHE BANK AG 90 Hudson Street 90 Hudson Street
NEW YORK BRANCH Mailstop JCY05-0511 Mailstop JCY05-0511
Jersey City, NJ 07302 Jersey City, NJ 07302
- -------------------- ----------------------------- -----------------------------
JPMORGAN CHASE BANK 270 Park Avenue 270 Park Avenue
New York, New York 10017 New York, New York 10017
- -------------------- ----------------------------- -----------------------------
THE NORTHERN 50 South La Salle Street 50 South La Salle Street
TRUST COMPANY Chicago, Illinois 60675 Chicago, Illinois 60675
- -------------------- ----------------------------- -----------------------------
LEHMAN BROTHERS 745 7th Avenue, 16th Floor 745 7th Avenue, 16th Floor
BANK, FSB New York, NY 10019 New York, NY 10019
- -------------------- ----------------------------- -----------------------------
BANCO BILBAO 1345 Avenue of the Americas 1345 Avenue of the Americas
VIZCAYA ARGENTARIA New York, New York 10105 New York, New York 10105
- -------------------- ----------------------------- -----------------------------
HSBC BANK USA 452 Fifth Avenue 452 Fifth Avenue
New York, New York 10018 New York, New York 10018
- -------------------- ----------------------------- -----------------------------
THE BANK OF NEW YORK One Wall Street One Wall Street
New York, New York 10286 New York, New York 10286
- -------------------- ----------------------------- -----------------------------
ROYAL BANK OF CANADA One Liberty Plaza One Liberty Plaza
New York, NY 10006-1404 New York, NY 10006-1404
- -------------------- ----------------------------- -----------------------------
STATE STREET BANK 225 Franklin Street 225 Franklin Street
AND TRUST COMPANY Boston, MA 02110 Boston, MA 02110
- -------------------- ----------------------------- -----------------------------
COMERICA BANK 500 Woodward Avenue, 500 Woodward Avenue,
9th Floor 9th Floor
MC 3279 MC 3279
Detroit, Michigan 48275-3279 Detroit, Michigan 48275-3279
- -------------------- ----------------------------- -----------------------------
WELLS FARGO BANK, 70 E. 55th Street 70 E. 55th Street
NATIONAL ASSOCIATION New York, New York 10022 New York, New York 10022
==================== ============================= =============================
Schedule I
----------
NY3:#7330584v6
SCHEDULE 2
PRICING SCHEDULE
- --------------------------------------------------------------------------------
Applicable
Applicable Facility Utilization Fee
Rating Level Period Fee Rate Applicable Margin Rate 1
- --------------------------------------------------------------------------------
1 6.0 bps 14.0 bps 5.0 bps
- --------------------------------------------------------------------------------
2 7.0 bps 18.0 bps 5.0 bps
- --------------------------------------------------------------------------------
3 8.0 bps 22.0 bps 5.0 bps
- --------------------------------------------------------------------------------
4 9.0 bps 26.0 bps 10.0 bps
- --------------------------------------------------------------------------------
5 12.5 bps 37.5 bps 10.0 bps
- --------------------------------------------------------------------------------
__________________________________
1 Applicable if utilization exceeds 50% of Commitment amount.
Schedule 2
----------
NY3:#7330584v6
EXHIBIT A-1
[FORM OF NOTICE OF REVOLVING CREDIT BORROWING]
JPMorgan Chase Bank, as Agent
for the Lenders parties to the
5-Year Credit Agreement
referred to below
Loan & Agency Services
1111 Fannin, Floor 10
Houston, TX 77002
Attention: Cherry Arnaez
With a copy to:
270 Park Avenue
New York, NY 10017
Attention: Buddy Wuthrich
[Date]
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Company"), refers to
the 5-Year Credit Agreement, dated as of April 28, 2004 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, Bottling Group, LLC (the
"Guarantor"), certain Lenders parties thereto and JPMorgan Chase Bank, as
administrative agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Revolving Credit Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Revolving Credit
Borrowing (the "Proposed Revolving Credit Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
__________, ____.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing
is $______.
(iv) The identity of the Borrower is __________, a ____________
corporation.
[(v)] [The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is ___
month[s].]
Form of Notice of Revolving Credit Borrowing
--------------------------------------------
NY3:#7330584v6
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Revolving Credit
Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are correct in all material respects, on and as of the date of the
Proposed Revolving Credit Borrowing, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By: _______________________________
Name:
Title:
Form of Notice of Revolving Credit Borrowing
--------------------------------------------
NY3:#7330584v6
-2-
EXHIBIT A-2
[FORM OF NOTICE OF COMPETITIVE BID BORROWING]
JPMorgan Chase Bank, as Agent
for the Lenders parties
to the 5-Year Credit Agreement
referred to below
Loan & Agency Services
1111 Fannin, Floor 10
Houston, TX 77002
Attention: Cherry Arnaez
With a copy to:
270 Park Avenue
New York, NY 10017
Attention: Buddy Wuthrich
[Date]
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Company"), refers to
the 5-Year Credit Agreement, dated as of April 28, 2004 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, Bottling Group, LLC (the
"Guarantor"), certain Lenders parties thereto and JPMorgan Chase Bank, as
administrative agent for said Lenders, and hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Proposed
Competitive Bid Borrowing ___________________
(B) Aggregate Amount of Proposed
Competitive Bid Borrowing ___________________
(C) Maturity Date ___________________
(D) Interest Rate Basis ___________________
(E) Interest Payment Date(s) ___________________
(F) Identity of Borrower ___________________
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing:
Form of Notice of Competitive Bid Borrowing
-------------------------------------------
NY3:#7330584v6
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof))
are correct in all material respects, on and as of the date of the Proposed
Competitive Bid Borrowing, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from the
Proposed Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.03(b) of the Credit
Agreement.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By:___________________________
Name:
Title:
Form of Notice of Competitive Bid Borrowing
-------------------------------------------
NY3:#7330584v6
-2-
EXHIBIT A-3
[FORM OF EXTENSION AGREEMENT]
The Pepsi Bottling Group, Inc.
One Pepsi Way
Somers, New York 10589
Attention: Treasurer
JPMorgan Chase Bank, as Agent
under the 5-Year Credit Agreement referred to below
Loan & Agency Services
1111 Fannin, Floor 10
Houston, TX 77002
Attention: Cherry Arnaez
With a copy to:
270 Park Avenue
New York, NY 10017
Attention: Buddy Wuthrich
[DATE]
Ladies and Gentlemen:
Each undersigned Lender hereby agrees to extend, effective on [insert
effective date, which shall be no more than 29 days prior to the existing
Termination Date] (the "Extension Date"), the Termination Date under the 5-Year
Credit Agreement dated as of April 28, 2004 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
among The Pepsi Bottling Group, Inc., Bottling Group, LLC, the Lenders and
agents party thereto and JPMorgan Chase Bank, as administrative agent for the
Lenders, to [one year from the effective date of this Extension Agreement].
Terms defined in the Credit Agreement are used herein as therein defined.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
[Remainder of this page intentionally left blank]
Form of Extension Agreement
---------------------------
NY3:#7330584v6
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 5-Year Credit Agreement dated as of April 28, 2004
(as amended or modified from time to time, the "Credit Agreement"), among THE
PEPSI BOTTLING GROUP, INC., a Delaware corporation (the "Company"), Bottling
Group, LLC (the "Guarantor"), the Lenders (as defined in the Credit Agreement)
and JPMorgan Chase Bank, as administrative agent for the Lenders (the "Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
(1) The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances) equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
(2) The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations or the
obligations of any Borrower under the Credit Agreement or any other instrument
or document furnished pursuant thereto.
(3) The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi)
Form of Assignment and Acceptance
---------------------------------
NY3:#7330584v6
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
(4) Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1
hereto.
(5) Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
(6) Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Effective Date
directly between themselves.
(7) This Assignment and Acceptance shall be governed by, and construed in
accordance with, the law of the State of New York.
(8) This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Form of Assignment and Acceptance
---------------------------------
NY3:#7330584v6
-2-
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ___%
Assignee's Commitment: $__________
Aggregate outstanding principal
amount of Revolving Credit Advances assigned: $__________
Effective Date 2: _______________, ____
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: ,
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: ,
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
__________________________________
2 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
Schedule 1 to Assignment and Acceptance
---------------------------------------
NY3:#7330584v6
Accepted and Approved this
____ day of ________, ____
JPMORGAN CHASE BANK, as Agent
By: ___________________________________
Name:
Title:
Approved this ____ day
of ________, ____
THE PEPSI BOTTLING GROUP, INC.
By: ___________________________________
Name:
Title:
Schedule 1 to Assignment and Acceptance
---------------------------------------
NY3:#7330584v6
-2-
EXHIBIT C-1
[FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY AND THE GUARANTOR]
[Effective Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of April 28, 2004
among The Pepsi Bottling Group, Inc.,
said Lenders and JPMorgan Chase Bank,
as Agent for said Lenders, and
to JPMorgan Chase Bank, as Agent
The Pepsi Bottling Group, Inc.
------------------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(v) of the
5-Year Credit Agreement, dated as of April 28, 2004 (the "Credit Agreement"),
among The Pepsi Bottling Group, Inc. (the "Company"), Bottling Group, LLC, (the
"Guarantor"), the Lenders parties thereto and JPMorgan Chase Bank, as Agent for
said Lenders, providing for extensions of credit to be made by said Lenders to
the Company in an aggregate principal amount at any one time outstanding of up
to $500,000,000. Terms defined in the Credit Agreement are used herein as
therein defined.
I am the General Counsel of the Company and have acted as counsel to the
Company and the Guarantor in connection with the Credit Agreement. In connection
with this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company and the Guarantor pursuant to
subsections 3.01(g)(i)-(iv) of the Credit Agreement.
(3) The Articles of Incorporation of the Company and all amendments thereto
(the "Charter").
Form of Opinion of General Counsel for the Company and the Guarantor
--------------------------------------------------------------------
NY3:#7330584v6
(4) The by-laws of the Company and all amendments thereto (the "By-laws").
(5) A certificate of the Secretary of State of Delaware, dated
_______________, 2004, attesting to the continued corporate existence and good
standing of the Company in that State.
(6) The Amended and Restated Limited Liability Company Agreement of the
Guarantor, dated as of March 30, 1999, and all amendments thereto (the "LLC
Agreement").
(7) The Certificate of Formation of the Guarantor and all amendments
thereto (the "Certificate of Formation").
(8) A certificate of the Secretary of State of Delaware dated _________,
2004, attesting to the continued existence and good standing of the Guarantor in
that State.
(9) Resolutions of the Board of Directors of the Company adopted on April
26, 1999 and September 5, 2002.
(10) Resolutions of the Managing Directors of the Guarantor adopted on June
4, 1999.
In addition, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other corporate records of the
Company and the Guarantor, certificates of public officials and of officers of
the Company and the Guarantor, and agreements, instruments and other documents,
as I have deemed necessary as a basis for the opinions expressed below. I have
assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Initial Lenders and the Agent.
The opinions expressed below are limited to the law of the State of New
York, the Delaware corporate law, the Federal law of the United States and, with
respect to paragraphs 1 and 2 and clauses (i), (ii) and (iii)(a) of paragraph 3
only, the Delaware General Corporation Law and the Delaware Limited Liability
Company Act.
Based upon the foregoing and upon such investigation as I have deemed
necessary and subject to the qualifications set forth herein, I am of the
following opinion:
(1) The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware.
(2) The Guarantor is a limited liability company validly existing and in
good standing under the laws of the state of Delaware.
(3) The execution, delivery and performance by the Company and the
Guarantor of the Credit Agreement (i) are within the Company's corporate, and
the Guarantor's limited liability company, powers, (ii) have been duly
authorized by all necessary corporate, or limited liability company, action, and
(iii) do not contravene (a) the Charter or the Bylaws of the
Form of Opinion of General Counsel for the Company and the Guarantor
--------------------------------------------------------------------
NY3:#7330584v6
-2-
Company or the LLC Agreement or Certificate of Formation of the Guarantor or (b)
to the best of my knowledge (1) any United States Federal or New York State law,
rule or regulation applicable to the Company or the Guarantor (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (2) any contractual or legal restriction contained in any
material judgment, decree, mortgage, agreement, indenture or other instrument to
which the Company or the Guarantor is a party. The Credit Agreement has been
duly executed and delivered on behalf of the Company and the Guarantor.
(4) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body of the State of New
York or the Federal government of the United States is required for the due
execution, delivery and performance by the Company or the Guarantor of the
Credit Agreement.
(5) The Credit Agreement is a valid and binding obligation of the Company
and the Guarantor enforceable against the Company and the Guarantor in
accordance with its terms.
(6) To the best of my knowledge and except as disclosed in the Company's
consolidated financial statements, there are no pending or overtly threatened
actions or proceedings against the Company or any of its Subsidiaries, before
any court, governmental agency or arbitrator that purport to affect the
legality, validity, binding effect or enforceability of the Credit Agreement or
that are likely to have a materially adverse effect upon the financial condition
or operations of the Company or any of its Subsidiaries.
The opinions set forth above are subject to the following qualifications:
(1) My opinion in paragraph 5 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
(2) My opinion in paragraph 5 above is subject to the effect of general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(3) I express no opinion as to the effect (if any) of the law of any
jurisdiction (other than the State of New York) wherein any Lender may be
located or wherein enforcement of the Credit Agreement may be sought that limits
the rates of interest that such Lender may charge or collect.
(4) I express no opinion as to the effect of Section 548 of the United
States Bankruptcy Code or any similar provision of State law.
In all respects and for all purposes, this opinion is given solely for the
benefit of the Agent and the Lenders and may not be relied upon by any other
person or entity without my prior written consent.
Very truly yours,
Form of Opinion of General Counsel for the Company and the Guarantor
--------------------------------------------------------------------
NY3:#7330584v6
-3-
EXHIBIT C-2
[Form of Opinion of Special New York Counsel for the Agent]
April 28, 2004
To each of the Banks
and the Agent party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase Bank, as
administrative agent (in such capacity, the "Agent") in connection with the
5-Year Credit Agreement dated as of April 28, 2004 (the "Credit Agreement"),
among The Pepsi Bottling Group, Inc. (the "Borrower"), Bottling Group, LLC (the
"Guarantor" and, together with the Borrower, the "Credit Parties"), the banks
and other financial institutions from time to time parties thereto (the "Banks")
and the Agent.
This opinion is furnished to you pursuant to Section 3.01(g)(vi) of the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In arriving at the opinions expressed below, we have examined and relied on
the Credit Agreement and we have made such investigations of law as we have
deemed appropriate for purposes of this opinion.
In our examination, we have assumed the authenticity of all documents
submitted to us as originals and the conformity with authentic original
documents of all documents submitted to us as copies. When relevant facts were
not independently established, we have relied upon representations made in or
pursuant to the Credit Agreement.
In rendering the opinions expressed below, we have assumed, with respect to
the Credit Agreement, that:
(i) the Credit Agreement has been duly authorized by, has been duly
executed and delivered by, and (except to the extent set forth in the opinions
below as to the Credit
Form of Opinion of Special New York Counsel for the Agent
---------------------------------------------------------
NY3:#7330584v6
Parties) constitutes the legal, valid, binding and enforceable obligation of,
all of the parties thereto;
(ii) all signatories to the Credit Agreement have been duly authorized;
(iii) all of the parties to the Credit Agreement are duly organized and
validly existing under the laws of their respective jurisdictions of
incorporation and have the power and authority (corporate or other) to execute,
deliver and perform the Credit Agreement.
Based upon and subject to the foregoing and subject also to the comments
and qualifications set forth below, and having considered such questions of law
as we have deemed necessary as a basis for the opinions expressed below, we are
of the opinion that the Credit Agreement constitutes the legal, valid and
binding obligation of each of the Credit Parties party thereto, enforceable
against such Credit Party in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability thereof is subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any other
equitable remedy and (b) concepts of materiality, reasonableness, good faith and
fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 8.04(b) of the Credit Agreement may be
limited by (i) laws rendering unenforceable indemnification contrary to Federal
or state securities laws and the public policy underlying such laws and (ii)
laws limiting the enforceability of provisions releasing, exculpating or
exempting a party, or requiring indemnification of a party for, liability for
its own action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, wilful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement to the effect
that terms may not be waived or modified except in writing may be limited under
certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of New York)
that limit the interest, fees or other charges such Bank may impose, (ii)
Section 8.05 of the Credit Agreement to the extent it purports to grant a right
of set-off, (iii) Section 8.11(a) of the Credit Agreement, insofar as it relates
to the subject matter jurisdiction of any court of the United States of America
sitting in New York City to adjudicate any controversy related to the Credit
Agreement, (iv) Section 8.11(b) of the Credit Agreement insofar as it relates to
inconvenient forum with respect to any Federal court and (v) Section 10.02 of
the Credit Agreement.
(D) We express no opinion as to the applicability to the obligations of the
Guarantor under Article X of the Credit Agreement (or the enforceability of such
obligations under) Section 548 of the Bankruptcy Code, Article 10 of the New
York Debtor and Creditor
Form of Opinion of Special New York Counsel for the Agent
---------------------------------------------------------
NY3:#7330584v6
-2-
Law or any other provision of law relating to fraudulent conveyances, transfers
or obligations, or the provisions of the law of the jurisdiction of
incorporation of the Guarantor restricting dividends, loans or other
distributions by a corporation for the benefit of its stockholders.
The foregoing opinions are limited to matters involving the Federal laws of
the United States of America and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 3.01(g)(vi) of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
the Agent and may not be relied upon by any Person for any purpose other than in
connection with the transactions contemplated by the Credit Agreement without,
in each instance, our prior written consent.
Very truly yours,
WFC/RJW
Form of Opinion of Special New York Counsel for the Agent
---------------------------------------------------------
NY3:#7330584v6
-3-
EXHIBIT D
[FORM OF DESIGNATION LETTER]
____________, ____
To JPMorgan Chase Bank
as Agent
Attention: Cherry Arnaez
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended, supplemented
and otherwise modified and in effect from time to time, the "Credit Agreement")
dated as of April 28, 2004 among The Pepsi Bottling Group, Inc. (the "Company"),
Bottling Group, LLC (the "Guarantor"), JPMorgan Chase Bank, as administrative
agent (the "Agent"), and the banks party thereto (the "Initial Lenders"). Terms
defined in the Credit Agreement are used herein as defined therein.
The Company hereby designates [______________] (the "Borrowing
Subsidiary"), a Subsidiary of the Company and a corporation duly incorporated
under the laws of [_______________] as a Borrower in accordance with Section
2.17 of the Credit Agreement until such designation is terminated in accordance
with said Section 2.17.
The Borrowing Subsidiary hereby accepts the above designation and hereby
expressly and unconditionally accepts the obligations of a Borrower under the
Credit Agreement, adheres to the Credit Agreement and agrees and confirms that,
upon your execution and return to the Company of the enclosed copy of this
letter, such Borrowing Subsidiary shall be a Borrower for purposes of the Credit
Agreement and agrees to be bound by and perform and comply with the terms and
provisions of the Credit Agreement applicable to it as if it had originally
executed the Credit Agreement as a Borrower. The Borrowing Subsidiary hereby
authorizes and empowers the Company to act as its representative and
attorney-in-fact for the purposes of signing documents and giving and receiving
notices (including notices of Borrowing under the Credit Agreement) and other
communications in connection with the Credit Agreement and the transactions
contemplated thereby and for the purposes of modifying or amending any provision
of the Credit Agreement and further agrees that the Agent and each Lender may
conclusively rely on the foregoing authorization.
The Borrowing Subsidiary represents and warrants that each of the
representations and warranties set forth in Section 4.01(a) (as if the reference
therein to Delaware were a reference to its jurisdiction of organization), (b),
(c) and (d) of the Credit Agreement are true as if each reference therein to the
Company were a reference to the Borrowing Subsidiary
Form of Designation Letter
--------------------------
NY3:#7330584v6
and as if each reference therein to the Loan Documents were a reference to this
Designation Letter.
The Borrowing Subsidiary hereby agrees that this Designation Letter and the
Credit Agreement shall be governed by, and construed in accordance with, the law
of the State of New York. The Borrowing Subsidiary hereby submits to the
nonexclusive jurisdiction of any New York state court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Designation Letter, the Credit Agreement or for recognition or enforcement of
any judgment. The Borrowing Subsidiary irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. The Borrowing Subsidiary further agrees that service of process in any
such action or proceeding brought in New York may be made upon it by service
upon the Borrower at the "Address for Notices" specified below its name on the
signature pages to the Credit Agreement.
Without limiting the foregoing, the Borrowing Subsidiary joins in the
submission, agreements, waivers and consents in Section 8.11 and 8.12 of the
Credit Agreement.
THE PEPSI BOTTLING GROUP, INC.
By: _____________________________
Name:
Title:
[NAME OF BORROWING SUBSIDIARY]
By: ______________________________
Name:
Title:
Form of Designation Letter
--------------------------
NY3:#7330584v6
-2-
ACCEPTED:
JPMORGAN CHASE BANK,
as Agent
By: ___________________________________
Name:
Title:
Form of Designation Letter
--------------------------
NY3:#7330584v6
-3-
EXHIBIT E
[FORM OF SUBSTITUTION LETTER]
____________, ____
To JPMorgan Chase Bank
as Agent
Attention: Cherry Arnaez
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended, supplemented
and otherwise modified and in effect from time to time, the "Credit Agreement")
dated as of April 28, 2004 among The Pepsi Bottling Group, Inc. (the "Company"),
Bottling Group, LLC (the "Guarantor"), JPMorgan Chase Bank, as administrative
agent (the "Agent"), and the banks party thereto (the "Initial Lenders"). Terms
defined in the Credit Agreement are used herein as defined therein.
The Company hereby elects to terminate its rights as a Borrower under the
Credit Agreement and designates the Guarantor as the exclusive Borrower
thereunder, in accordance with Section 2.17 of the Credit Agreement.
The Guarantor hereby accepts the above substitution and hereby expressly
and unconditionally accepts the obligations of the Company under the Credit
Agreement, adheres to the Credit Agreement and agrees and confirms that, as of
the date hereof, the Guarantor shall become a Borrower for purposes of the
Credit Agreement and agrees to be bound by and perform and comply with the terms
and provisions of the Credit Agreement applicable to it as if it had originally
executed the Credit Agreement as the Company.
The Company and the Guarantor hereby represent and warrant to the Agent and
each Lender that, before and after giving effect to this Substitution Letter,
(i) the representations and warranties set forth in Section 4.01 of the Credit
Agreement (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are true and correct in all material respects on the date hereof and
after giving effect to the substitution contemplated hereby as if made on and as
of the date hereof and (ii) no Default has occurred and is continuing.
The Company and the Guarantor hereby agree that this Substitution Letter
shall be governed by, and construed in accordance with, the law of the State of
New York. The Company and the Guarantor hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New
Form of Substitution Letter
---------------------------
NY3:#7330584v6
York City for the purposes of all legal proceedings arising out of or relating
to this Substitution Letter or the transactions contemplated hereby.
THE PEPSI BOTTLING GROUP, INC.
By:___________________________
Name:
Title:
BOTTLING GROUP, LLC
By:____________________________
Name:
Title:
Form of Substitution Letter
---------------------------
NY3:#7330584v6
-2-
EXHIBIT F
[FORM OF TERMINATION LETTER]
____________, ____
To JPMorgan Chase Bank,
as Agent
Attention: Cherry Arnaez
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended, supplemented
and otherwise modified and in effect from time to time, the "Credit Agreement")
dated as of April 28, 2004 by and among The Pepsi Bottling Group, Inc. (the
"Company"), Bottling Group, LLC (the "Guarantor"), JPMorgan Chase Bank, as
administrative agent, and the banks party thereto. Terms defined in the Credit
Agreement are used herein as defined therein.
The Company hereby terminates the status as a Borrowing Subsidiary of
[_______________], a corporation incorporated under the laws of
[_______________], in accordance with Section 2.17 of the Credit Agreement,
effective as of the date of receipt of this notice by the Agent. The undersigned
hereby represents and warrants that all principal of and interest on any Advance
of the above-referenced Borrowing Subsidiary and all other amounts payable by
such Borrowing Subsidiary pursuant to the Credit Agreement have been paid in
full on or prior to the date hereof. Notwithstanding the foregoing, this
Termination Letter shall not affect any obligation which by the terms of the
Credit Agreement survives termination thereof
THE PEPSI BOTTLING GROUP, INC.
By: _________________________
Name:
Title:
Form of Termination Letter
--------------------------
NY3:#7330584v6