EXHIBIT 10.1
AMENDED AND RESTATED
364-DAY CREDIT AGREEMENT
Dated as of December 13, 1996
THIS AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT (this
"Amendment and Restatement") among HERSHEY FOODS CORPORATION, a Delaware
corporation (the "Company"), the banks, financial institutions and other
institutional lenders parties to the Credit Agreement referred to below
(collectively, the "Lenders"), CITIBANK, N.A. ("Citibank"), as administrative
agent (the "Agent") for the Lenders, and BA SECURITIES, INC. and CITICORP
SECURITIES, INC., as co-syndication agents (the "Co-Syndication Agents"),
evidences the agreement of the parties as follows:
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders, the Agent and the Co-Syndication
Agents have entered into a 364-Day Credit Agreement dated as of December 15,
1995 (the "Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment and Restatement have the same meanings as specified in the Credit
Agreement.
(2) The Company and the Lenders have agreed to amend the Credit
Agreement as hereinafter set forth and to restate the Credit Agreement in its
entirety to read as set forth in the Credit Agreement with the amendments
specified below.
(3) The Lenders are, on the terms and conditions stated below,
willing to grant the request of the Company and the Company and the Lenders have
agreed to amend and restate the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) The definition of the term "Termination Date"
appearing in Section 1.01 is amended in full to read
as follows:
"'Termination Date' means the earlier of (a) December
12, 1997 or, if the Termination Date is extended pursuant to
Section 2.18(a), the date to which the Termination Date is
extended pursuant to Section 2.18(a), and (b) the date of
termination in whole of the Commitments pursuant to Section
2.05 (a), 2.05 (b) or 6.01."
(b) Section 2.04 is amended by deleting the percentage ".05 %
" in the ninth line therein and substituting for such
percentage the percentage ".035 % ".
(c) Section 2.07(a)(ii) is amended by deleting the percentage
".15 % " in the fifth line therein and substituting for such
percentage the percentage ".14 % ".
(d) Section 4.01 (e) is amended by deleting the reference to "
December 31, 1994" in each place in which it appears and
substituting "December 31, 1995" therefor, and deleting the
reference to "October 1, 1995" in each place in which it
appears and substituting "September 29, 1996" therefor.
SECTION 2. Conditions of Effectiveness. This Amendment and
Restatement shall become effective as of the date first above written when, and
only when, the Agent shall have received counterparts of this Amendment and
Restatement executed by the Company and all of the Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has executed this
Amendment and Restatement and when the Agent shall have additionally received
all of the following documents, each such document (unless otherwise specified)
dated the date of receipt thereof by the Agent (unless otherwise specified) and
in sufficient copies for each Lender, in form and substance satisfactory to the
Agent (unless otherwise specified):
(a) Certified copies of (i) the resolutions of the Board
of Directors of the Company approving this Amendment and
Restatement and (ii) all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Amendment and Restatement.
(b) 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 Amendment and Restatement and the other documents to be
delivered hereunder.
(c) A favorable opinion of Xxxxxx X. Xxxxx, Vice
President and General Counsel of the Company, in substantially
the form of Exhibit A hereto and as to such other matters as
any Lender through the Agent may reasonably request.
(d) A favorable opinion of Shearman & Sterling, counsel
for the Agent, in form and substance satisfactory to the
Agent.
(e) A certificate signed by a duly authorized officer of
the Company stating that:
(i) 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 (i)(B) thereof) and in Section 3 hereof are
correct on and as of the date of such certificate as though made on and
as of such date; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 3. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The execution, delivery and performance by the Company of
this Amendment and Restatement are within the Company's corporate powers, have
been duly authorized by all necessary corporate action and do not contravene (i)
the Company's charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting the Company, except where such contravention would not
be reasonably likely to have a Material Adverse Effect.
(b) 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 or performance by
the Company of this Amendment and Restatement, except where the Company's
failure to receive, take or make such authorization, approval, action, notice or
filing would not have a Material Adverse Effect.
(c) This Amendment and Restatement has been duly executed and
delivered by the Company. This Amendment and Restatement is a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity.
SECTION 4. Reference to and Effect on the Credit Agreement.
(a) On and after the effectiveness of this Amendment and Restatement, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended and restated by this Amendment and
Restatement.
(b) The Credit Agreement, as specifically amended and
restated by this Amendment and Restatement, is and shall continue to be in full
force and effect and is hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment and Restatement shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or the Agent
under the Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.
SECTION 5. Costs, Expenses. The Company agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and Restatement and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Agent) in accordance with the terms of Section 9.04
of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment and
Restatement 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 but
one and the same agreement. Delivery of an executed counterpart of a signature
page to this Amendment and Restatement by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment and Restatement.
SECTION 7. Governing Law. This Amendment and Restatement shall
be governed by, and construed in accordance with, the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Restatement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
HERSHEY FOODS CORPORATION
By _____________________________
Title:
CITIBANK, N.A.,
as Administrative Agent
By _____________________________
Title:
BA SECURITIES, INC.,
as Co-Syndication Agent
By ______________________________
Title:
CITICORP SECURITIES, INC.,
as Co-Syndication Agent
By _______________________________
Title:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By _______________________________
Title:
CIBC INC.
By _______________________________
Title:
CITIBANK, N.A.
By _______________________________
Title:
CREDIT SUISSE
By _______________________________
Title:
By _______________________________
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By _______________________________
Title:
By _______________________________
Title:
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By _______________________________
Title:
By _______________________________
Title:
NATIONSBANK, N.A.
By _______________________________
Title:
PNC BANK,
NATIONAL ASSOCIATION
By _______________________________
Title:
THE FIRST NATIONAL BANK
OF CHICAGO
By _______________________________
Title:
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By _______________________________
Title:
EXHIBIT A - FORM OF
OPINION OF XXXXXX X. XXXXX,
VICE PRESIDENT AND GENERAL COUNSEL
OF THE COMPANY
[ ], 1996
To each of the Lenders party
to the Amended and Restated
Credit Agreement referred
to below and to Citibank, N.A., as
Agent for such Lenders
Hershey Foods Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 2(c) of the
Amended and Restated 364-Day Credit Agreement, dated as of [ ], 1996 (the
"Amended and Restated Credit Agreement"), among Hershey Foods Corporation (the
"Company"), the Lenders party thereto, Citibank, N.A., as administrative agent
(the "Agent") for said Lenders, and BA Securities, Inc. and Citicorp Securities,
Inc., as co-syndication agents (the "Co-Syndication Agents"), which amends and
restates in its entirety the 364-Day Credit Agreement, dated as of December 15,
1995 among the Company, the Lenders party thereto, the Agent and the Co-
Syndication Agents. Terms defined in the Amended and Restated Credit Agreement
and used herein as therein defined.
I am the Vice President and General Counsel of the Company, and I have
acted as counsel for the Company in connection with the preparation, execution
and delivery of the Amended and Restated Credit Agreement.
In that connection, I have examined:
(1) the Amended and Restated Credit Agreement;
(2) the documents furnished by the Company pursuant to
Section 2 of the Amended and Restated Credit Agreement;
(3) the Amended and Restated Certificate of Incorporation
of the Company and all amendments thereto (the "Charter"); and
(4) the by-laws of the Company and all amendments thereto
(the "By-laws").
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments and
other documents, as I have deemed necessary as a basis for the opinions
expressed below. In making such examinations, I have assumed the genuineness of
all signatures (other than those on behalf of the Company), the authenticity of
all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photographic copies. As to questions of fact material to such opinions, I have,
when relevant facts were not independently established by me, relied upon
certificates of the Company or its officers or of public officials and as to
questions of fact and law, on opinions or statements by other lawyers reporting
to me. I have assumed the due execution and delivery, pursuant to due
authorization, of the Amended and Restated Credit Agreement by the Lenders, the
Agent and the Co-Syndication Agents.
My opinions expressed below are limited to the law of the Commonwealth
of Pennsylvania, and, where applicable, the General Corporation Law of the State
of Delaware and the Federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Amended and Restated Credit Agreement are within the Company's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charter or the Bylaws or (ii) any law, rule or regulation
applicable to the Company (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (iii) any contractual or
legal restriction binding on or affecting the Company or, to the best of my
knowledge, contained in any other similar document, except where such
contravention would not be reasonably likely to have a Material Adverse Effect.
The Amended and Restated Credit Agreement has been duly executed and delivered
on behalf of the Company.
3. No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
party is required for the due execution, delivery and performance by the
Company of the Amended and Restated Credit
Agreement.
4. There are no pending or, to the best of my knowledge, threatened
actions, investigations, litigations or proceedings against the Company or any
of its Subsidiaries before any court, governmental agency or arbitrator that (a)
would be reasonably likely to have a Material Adverse Effect or (b) purport to
affect the legality, validity, binding effect or enforceability of the Amended
and Restated Credit Agreement.
This opinion letter may be relied upon by you only in connection with
the transaction being consummated pursuant to the Amended and Restated Credit
Agreement and may not be used or relied upon by any other person for any other
purpose.
