EXHIBIT 10.6
EXECUTION COPY
U.S. $1,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 7, 2001
Among
MONSANTO COMPANY
as Borrower,
-- --------
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders,
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CITIBANK, N.A.
as Administrative Agent,
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THE CHASE MANHATTAN BANK
as Syndication Agent,
-- ----------- -----
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES
THE BANK OF TOKYO-MITSUBISHI, LTD.
and
BANK ONE, NA
as Co-Documentation Agents
-- ---------------- ------
and
XXXXXXX XXXXX XXXXXX INC. and X.X. XXXXXX SECURITIES INC.
as Co-Lead Arrangers and Joint Bookrunners
-- ------- --------- --- ----- -----------
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................................1
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SECTION 1.02. Computation of Time Periods........................................................................11
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SECTION 1.03. Accounting Terms...................................................................................11
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances......................................................................11
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SECTION 2.02. Making the Revolving Credit Advances...............................................................12
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SECTION 2.03. The Competitive Bid Advances.......................................................................12
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SECTION 2.04. Fees...............................................................................................15
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SECTION 2.05. Termination or Reduction of the Commitments........................................................15
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SECTION 2.06. Repayment of Revolving Credit Advances.............................................................15
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SECTION 2.07. Interest on Revolving Credit Advances; Regulation D Compensation...................................15
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SECTION 2.08. Interest Rate Determination........................................................................16
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SECTION 2.09. Optional Conversion of Revolving Credit Advances...................................................17
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SECTION 2.10. Optional Prepayments of Revolving Credit Advances..................................................17
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SECTION 2.11. Increased Costs....................................................................................18
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SECTION 2.12. Illegality.........................................................................................19
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SECTION 2.13. Payments and Computations..........................................................................20
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SECTION 2.14. Taxes..............................................................................................21
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SECTION 2.15. Sharing of Payments, Etc...........................................................................22
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SECTION 2.16. Use of Proceeds....................................................................................22
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SECTION 2.17. Extension of Termination Date......................................................................22
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SECTION 2.18. Evidence of Debt...................................................................................24
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03....................................25
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SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing and Extension Date.........................26
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SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.............................................26
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SECTION 3.05. Determinations Under Sections 3.01 and 3.02........................................................27
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................................27
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SECTION 4.02. Representation and Warranty of the Lenders.........................................................28
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants..............................................................................28
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SECTION 5.02. Negative Covenants.................................................................................29
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SECTION 5.03. Financial Covenant.................................................................................30
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................31
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ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action...........................................................................32
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SECTION 7.02. Agent's Reliance, Etc..............................................................................33
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SECTION 7.03. Citibank and Affiliates............................................................................33
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SECTION 7.04. Lender Credit Decision.............................................................................33
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SECTION 7.05. Indemnification....................................................................................33
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SECTION 7.06. Successor Agent....................................................................................33
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SECTION 7.07. Other Agents.......................................................................................34
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................................................................34
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SECTION 8.02. Notices, Etc.......................................................................................34
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SECTION 8.03. No Waiver; Remedies................................................................................34
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SECTION 8.04. Costs and Expenses.................................................................................34
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SECTION 8.05. Right of Set-off...................................................................................35
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SECTION 8.06. Binding Effect.....................................................................................35
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SECTION 8.07. Assignments and Participations.....................................................................36
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SECTION 8.08. Confidentiality....................................................................................38
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SECTION 8.09. Governing Law......................................................................................38
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SECTION 8.10. Execution in Counterparts..........................................................................38
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SECTION 8.11. Jurisdiction, Etc..................................................................................38
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SECTION 8.13. Waiver of Jury Trial...............................................................................39
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Schedules
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Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Exhibits
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Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Notice of Extension of Termination Date
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364-DAY CREDIT AGREEMENT
Dated as of August 7, 2001
MONSANTO COMPANY, a Delaware corporation (the "Borrower"),
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the banks, financial institutions and other institutional lenders (the
"Initial Lenders") listed on the signature pages hereof, CITIBANK, N.A.
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("Citibank"), as administrative agent (the "Agent") for the Lenders (as
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hereinafter defined), XXXXXXX XXXXX XXXXXX INC. and X.X. XXXXXX SECURITIES
INC., as co-lead arrangers and joint bookrunners (the "Co-Lead Arrangers"),
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THE CHASE MANHATTAN BANK, as syndication agent, and COMMERZBANK AG NEW YORK
AND GRAND CAYMAN BRANCHES ("Commerzbank"), THE BANK OF TOKYO-MITSUBISHI, LTD.
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and BANK ONE, NA, as co-documentation agent, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
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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
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Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
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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
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maintained by the Agent at Citibank with its office at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 00000000, Attention:
Xxxxxxx Xxxxx.
"Aggregate Amount of Financing Outstanding" at any time
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means the aggregate amount of proceeds received in connection with
a Permitted Receivables Financing, less (a) any amounts collected
in connection with the accounts receivable sold, conveyed or
otherwise transferred pursuant to such financing and (b) the amount
of any defaulted accounts receivable the uncollectibility of which
is a risk assumed by the transferee of such accounts receivable.
"Applicable Lending Office" means, with respect to each
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Lender, such Lender's Domestic Lending Office in the case of a 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 Advance, the office of such Lender notified by such Lender to
the Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, for Base Rate Advances, 0.0%
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per annum and, for Eurodollar Rate Advances as of any date, a
percentage per annum determined by reference to the Public Debt
Rating in effect on such date as set forth below:
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Public Debt Rating Public Debt Rating Applicable Margin for
(Short Term Rating) (Long Term Rating) Eurodollar Rate Advances
S&P/Xxxxx'x S&P/Xxxxx'x
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Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.195%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but at Lower than Level 1 but at
least A-1 and P-1 least A or A2 0.235%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but at Lower than Level 2 but at
least A-1 or P-1 least A- or A3 0.320%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but at Lower than Level 3 but at
least A-2 and P-2 least BBB+ or Baa1 0.525%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.850%
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"Applicable Percentage" means, a percentage per annum
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determined by reference to the Public Debt Rating in effect on such
date as set forth below:
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Public Debt Rating Public Debt Rating Applicable
(Short Term Rating) (Long Term Rating) Percentage
S&P/Xxxxx'x S&P/Xxxxx'x
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Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.055%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but at Lower than Level 1 but at
least A-1 and P-1 least A or A2 0.065%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but at Lower than Level 2 but at
least A-1 or P-1 least A- or A3 0.080%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but at Lower than Level 3 but at
least A-2 and P-2 least BBB+ or Baa1 0.100%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.150%
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"Applicable Utilization Fee" means, for each date on which
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the aggregate principal amount of the Advances exceeds 25% of the
aggregate Commitments, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set
forth below:
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Public Debt Rating Public Debt Rating Applicable
(Short Term Rating) (Long Term Rating) Utilization Fee
S&P/Xxxxx'x S&P/Xxxxx'x
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Xxxxx 0 Xxxxx 0
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A-1+ and P-1 A+ or A1 0.050%
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Xxxxx 0 Xxxxx 0
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Lower than Level 1 but at Lower than Level 1 but at
least A-1 and P-1 least A or A2 0.050%
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Xxxxx 0 Xxxxx 0
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Lower than Level 2 but at Lower than Level 2 but at
least A-1 or P-1 least A- or A3 0.100%
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Xxxxx 0 Xxxxx 0
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Lower than Level 3 but at Lower than Level 3 but at
least A-2 and P-2 least BBB+ or Baa1 0.125%
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Xxxxx 0 Xxxxx 0
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Lower than Xxxxx 0 Xxxxx xxxx Xxxxx 0 0.250%
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"Assignment and Acceptance" means an assignment and
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acceptance entered into by a Lender and an Eligible Assignee, and
accepted by the Agent, in substantially the form of Exhibit C
hereto.
"Assuming Lender" has the meaning specified in
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Section 2.17(c).
"Assumption Agreement" has the meaning specified in
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Section 2.17(c).
"Base Rate" means a fluctuating interest rate per annum in
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effect from time to time, which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or,
if there is no nearest 1/4 of 1%, to the next higher 1/4
of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate
----
obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the
United States for three-month certificates of deposit of
major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360
days) being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three
New York certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages
specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement
(including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S.
dollar non-personal time deposits in the United States,
plus (iii) the average during such three-week period of
----
the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or
any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
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(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
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provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
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Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are
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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.
"Commitment" means as to any Lender (a) the amount set
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forth opposite such Lender's name on the signature pages hereof,
(b) if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount set forth in such Assumption
Agreement or (c) if such Lender has entered into any Assignment and
Acceptance, the amount 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.
"Competitive Bid Advance" means an advance by a Lender to
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the Borrower as part of a Competitive Bid Borrowing resulting from
the competitive 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
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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 by the Borrower under the competitive
bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the
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Borrower of a Competitive Bid Advance payable to the order of any
Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from such
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
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Section 2.01.
"Confidential Information" means information that the
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Borrower furnishes to the Agent or any Lender which information is
non-public, confidential or proprietary in nature, but does not
include any such information (a) that is or becomes generally
available to the public other than as the result of an unauthorized
disclosure by the Agent or any Lender or (b) that is or becomes
available to the Agent or such Lender from a source other than the
Borrower and the Agent or such Lender had no reason to believe that
such source did not have legitimate possession of such information
or such source was under any obligation to keep such information
confidential.
"Consenting Lender" has the meaning specified in
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Section 2.17(b).
"Consolidated" refers to the consolidation of accounts in
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accordance with GAAP.
"Consolidated Net Worth" at any time, means the sum of the
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capital stock (excluding treasury stock and capital stock subscribed
for and unissued) and surplus (including earned surplus, capital
surplus and the balance of the current profit and loss account not
transferred to surplus) accounts of the Borrower and its
Subsidiaries appearing on the most recent consolidated balance sheet
of the Borrower and its Subsidiaries delivered pursuant to Section
5.01(f)(i) or (ii), as applicable, prepared in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to
in Section 4.01(e).
"Convert", "Conversion" and "Converted" each refers to a
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conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
4
"Debt" of any Person means, without duplication, (a) all
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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 payables not overdue by more than 60 days
incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations 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 obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of
credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others
referred to in clauses (a) through (g) above or clause (i) below
guaranteed directly or indirectly in any manner by such Person, or
in effect guaranteed directly or indirectly by such Person through
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, and (i) all Debt referred to in clauses (a) through (h) 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 for Borrowed Money" of any Person means, without
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duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (c) all obligations of such
Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (d) during the
term of a Permitted Receivables Financing, the Aggregate Amount of
Financing Outstanding in connection with domestic accounts
receivable pursuant to such financing and (e) all Debt of others
referred to in clauses (a) through (d) above guaranteed directly or
indirectly in any manner by such Person.
"Default" means any Event of Default or any event that
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would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
"Disclosed Litigation" has the meaning specified in
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Section 3.01(b).
"Domestic Lending Office" means, with respect to any
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Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Agent.
"XXXXX" means the electronic disclosure system for the
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receipt, storage, retrieval and dissemination of public documents
filed with the Securities and Exchange Commission.
"Effective Date" has the meaning specified in Section 3.01.
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"Eligible Assignee" means (i) a Lender; (ii) an Affiliate
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of a Lender; and (iii) any other Person approved by the Agent and,
unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 8.07,
the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither the Borrower nor an
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Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
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demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating to any
Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to health, safety
or the environment, including, without
5
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
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foreign statute, law, ordinance, rule, regulation, code, order,
judgment, decree or written judicial policy or guidance that is
publicly available, in each case relating to pollution or protection
of the environment, health and safety as they relate to Hazardous
Materials or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
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identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act
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of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
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Title IV of ERISA is a member of the Borrower's controlled group, or
under common control with the Borrower, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable
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event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such
Plan pursuant to Section 4041(c) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
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that term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
-------------------------
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assumption Agreement or the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the
Agent.
"Eurodollar Rate" means, for any Interest Period for each
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Eurodollar Rate Advance comprising part of the same Revolving
Credit Borrowing, an interest rate per annum equal to the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such
Reference Bank's ratable share of an amount equal to such Revolving
Credit Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period. If the Telerate
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Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for any Interest Period for each 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,
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to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears
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interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
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Period for all Eurodollar Rate Advances or LIBO Rate Advances
comprising part of the same Borrowing means the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New
York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances or LIBO Rate Advances
is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
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Section 6.01.
"Extension Date" has the meaning specified in
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Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating
------------------
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day 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.
"Fixed Rate Advances" has the meaning specified in
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Section 2.03(a)(i).
"Funded Debt" at any time, means Debt for Borrowed Money
-----------
in respect of the Advances made to the Borrower at such time and
all other Debt for Borrowed Money that by its terms matures more
than one year after the date of its creation or matures within one
year from such date but is renewable or extendible, at the option
of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than
one year after such date as set forth in the then most recent
financial statements of the Borrower and its Subsidiaries delivered
pursuant to Section 5.01(f)(i) or (ii), as applicable, prepared in
accordance with generally accepted accounting principles consistent
with those applied in preparation of the financial statements
referred to in Section 4.01(e).
"GAAP" has the meaning specified in Section 1.03.
----
"Hazardous Materials" means (a) petroleum and petroleum
-------------------
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon
gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
----------------
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
7
"Information Memorandum" means the information memorandum
----------------------
dated __________, 2001 (including all exhibits and attachments
thereto) used by the Agent in connection with the syndication of the
Commitments, as up-dated from time to time by any subsequent filings
by the Borrower with the Securities and Exchange Commission.
"Interest Period" means, for each Eurodollar Rate Advance
---------------
comprising part of the same Revolving Credit Borrowing and each
LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or LIBO 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 Borrower pursuant to
the provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall
be one, two, three or six months or, if available to all Lenders,
nine months, as the Borrower 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:
-------- -------
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing
shall be of the same duration;
(iii) 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
(iv) whenever the first day of any Interest Period
occurs on the last day of a calendar month or 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, each Assuming Lender
-------
that shall become a party hereto pursuant to Section 2.17 and each
Person that shall become a party hereto pursuant to Section 2.11,
Section 2.12 or Section 8.07.
"Leverage Ratio" of the Borrower means the ratio of
--------------
Consolidated Funded Debt of the Borrower and its Subsidiaries to the
sum of Consolidated Funded Debt of the Borrower and its Subsidiaries
plus Consolidated Net Worth.
----
"LIBO Rate" means, for any Interest Period for all LIBO
---------
Rate Advances comprising part of the same Competitive Bid Borrowing,
an interest rate per annum equal to the rate per annum (rounded
upward to the nearest 1/100 of 1%) appearing on Telerate Markets
Page 3750 (or any successor page) as the London interbank offered
rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if
for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime
8
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 the amount that would be the
Reference Banks' respective ratable shares of such Borrowing if
such Borrowing were to be a Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to
such Interest Period. If the Telerate Markets Page 3750 (or any
successor page) is unavailable, the LIBO Rate for any Interest
Period for each LIBO Rate Advance comprising part of the same
Competitive Bid 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.
"LIBO Rate Advance" has the meaning specified in
-----------------
Section 2.03(a)(i).
"Lien" means any lien, security interest or other charge
----
or encumbrance of any kind, or any other type of preferential
arrangement having the effect of security, including, without
limitation, the lien or retained security title of a conditional
vendor.
"Long Term Rating" has the meaning assigned in the
----------------
definition of "Public Debt Rating".
"Material Adverse Change" means any material adverse change
-----------------------
in the financial condition or results of operations of the Borrower
or the Borrower and its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect
-----------------------
on (a) the financial condition or results of operations of the
Borrower or the Borrower and its Consolidated Subsidiaries taken as
a whole or (b) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Material Subsidiary" means, at any time, a domestic
-------------------
Consolidated Subsidiary of the Borrower having (i) at least 10% of
the total Consolidated assets of the Borrower and its Subsidiaries
(determined as of the last day of the most recent fiscal quarter of
the Borrower) or (ii) at least 10% of the Consolidated net sales of
the Borrower and its Subsidiaries for the twelve month period ending
on the last day of the most recent fiscal quarter of the Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan, as defined
------------------
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued
an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
----------------------
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was
so maintained and in respect of which the Borrower or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in
---------------------
Section 2.17(b).
"Note" means a Revolving Credit Note or a Competitive
----
Bid Note.
"Notice of Revolving Credit Borrowing" has the meaning
------------------------------------
specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
-----------------------------------
specified in Section 2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or
----
any successor).
"Permitted Receivables Financing" means any financing
-------------------------------
pursuant to which the Borrower or any Subsidiary of the Borrower may
sell, convey, or otherwise transfer to a Receivables Subsidiary or
any other
9
Person, or grant a security interest in, any accounts receivable
(and related assets) of the Borrower or such Subsidiary, provided
that such financing shall be on customary market terms and shall be
with limited or no recourse to the Borrower and its Subsidiaries
(other than the Receivables Subsidiary) except to the extent
customary for such transactions.
"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.
"Plan" means a Single Employer Plan or a Multiple
----
Employer Plan.
"Public Debt Rating" means, as of any date, the lowest
------------------
rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit enhanced
long-term senior unsecured debt issued by the Borrower (its "Long
----
Term Rating"), or, if the Borrower does not have in effect a rating
-----------
for non-credit enhanced long-term senior unsecured debt, the lowest
rating that has been most recently announced by either S&P or
Moody's, as the case may, be for the Borrower's commercial paper
(its "Short Term Rating"). For purposes of the foregoing, (a) if
-----------------
only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in
effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in
accordance with Level 5 under the definition of "Applicable Margin",
-----------------
"Applicable Percentage" or "Applicable Utilization Fee", as the case
--------------------- --------------------------
may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon
the higher rating; (d) if any rating established by S&P or Moody's
shall be changed, such change shall be effective as of the date on
which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis
on which ratings are established, each reference to the Public Debt
Rating announced by S&P or Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or Moody's, as the case may be.
"Receivables Subsidiary" means a bankruptcy-remote,
----------------------
special-purpose wholly owned Subsidiary formed in connection with a
Permitted Receivables Financing.
"Reference Banks" means Citibank, The Chase Manhattan Bank
---------------
and Commerzbank; provided that the Borrower may at any time
--------
substitute another Lender as one of the Reference Banks, but such
substitution shall terminate after 30 days if within such period the
Required Lenders shall have notified the Agent of their objection to
such substitution.
"Register" has the meaning specified in Section 8.07(c).
--------
"Required Lenders" means at any time Lenders owed more
----------------
than 50% of the then aggregate unpaid principal amount of the
Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having more than
50% of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to
------------------------
the 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.
"Revolving Credit Note" means a promissory note of the
---------------------
Borrower payable to the order of any Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of
the Borrower to such Lender resulting from the Revolving Credit
Advances made by such Lender.
10
"S&P" means Standard & Poor's, a division of The
---
XxXxxx-Xxxx Companies, Inc.
"Short Term Rating" has the meaning assigned in the
-----------------
definition of "Public Debt Rating".
"Single Employer Plan" means a single employer plan, as
--------------------
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"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 limited liability company, 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.
"Termination Date" means the earlier of (a) August 6, 2002,
----------------
subject to the extension thereof pursuant to Section 2.17 and (b)
the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01; provided, however, that the Termination Date
-------- -------
of any Lender that is a Non-Consenting Lender to any requested
extension pursuant to Section 2.17 shall be the Termination Date in
effect immediately prior to the applicable Extension Date for all
purposes of this Agreement.
"Voting Stock" means capital stock issued by a corporation,
------------
or equivalent interests in any other Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar
functions) of such Person, even 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. All accounting terms not
----------------
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
----
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
-----------------------------
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower 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 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"). Each Revolving Credit Borrowing shall be in an aggregate
-------------
amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof 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. Within the limits of each Lender's Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow
under this Section 2.01.
11
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 not later than
11:00 A.M. (New York City time) on the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower 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 telephone, confirmed immediately in writing, or telecopier or telex,
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising such
Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting
of Eurodollar Rate Advances, initial Interest Period for each such Advance.
Each Lender shall, before 1:00 P.M. (New York City time) 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 funds
available to the Borrower that requested such Revolving Credit Borrowing at
the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances
for any Revolving Credit Borrowing if the aggregate amount of such Revolving
Credit Borrowing is less than $15,000,000 or if the obligation of the
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 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 Borrower providing such notice. 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 Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before
the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
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 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 the Borrower that requested such Borrowing 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 the Borrower until the date such amount is repaid to the Agent,
at (i) in the case of the 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
Borrowing for purposes of this Agreement.
(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 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 the 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 30 days
prior to the Termination Date in the manner
12
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).
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a
"Notice of Competitive Bid Borrowing"), in substantially the form
-----------------------------------
of Exhibit B-2 hereto, specifying therein the requested (v) date of
such proposed Competitive Bid Borrowing, (w) aggregate amount of
such proposed Competitive Bid Borrowing, (x) in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period, or in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances, maturity date for repayment of
each Fixed Rate Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date
occurring 30 days after the date of such Competitive Bid Borrowing
or later than the Termination Date), (y) interest payment date or
dates relating thereto, and (z) other terms (if any) 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 Borrower
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 five Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall instead specify in
the Notice of Competitive Bid Borrowing that the rates of interest
be offered by the Lenders are to be based on the LIBO Rate (the
Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
------------------
Borrowing shall be irrevocable and binding on the Borrower giving
such Notice of Competitive Bid Borrowing. The Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) 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 Borrower requesting such proposed Competitive
Bid Borrowing 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 Borrower), before 9:30 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 10:00 A.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, 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 this 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 Borrower of such offer at least
30 minutes before the time and 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.
(iii) The Borrower requesting such proposed Competitive
Bid Borrowing shall, in turn, before 10:30 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 11:00 A.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
13
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the 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
Borrower by the Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) 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 (ii) above by giving the Agent notice
to that effect. The Borrower shall accept the offers made
by any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed
at such interest rate will be allocated among such Lenders
in proportion to the amount that each such Lender offered
at such interest rate.
(iv) If the Borrower notifies the Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Agent shall in turn promptly notify (A) each Lender that has
made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or
not any offer or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by the Borrower, (B) each Lender that
is to make a 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 funds available to the
Borrower 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.
(vi) If the Borrower notifies the Agent that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing
for such Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Competitive Bid Advance
to be made by such Lender as part of such Competitive Bid Borrowing
when such Competitive Bid Advance, as a result of such failure, is
not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrower shall be in compliance with the limitation set forth in the
proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow
14
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.
(d) The Borrower shall repay to the Agent for the
account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in
the related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note 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, and then only on the
terms, specified by the Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance 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 subsection (a)(ii)
above, payable on the interest payment date or dates specified by the
Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as
provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of
Default, the Borrower shall pay interest on the amount of unpaid principal
of and interest on each Competitive Bid Advance owing to a Lender, payable
in arrears on the date or dates interest is payable thereon, at a rate per
annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from
each Competitive Bid Advance made as part of a Competitive Bid Borrowing
shall be evidenced by a separate Competitive Bid Note payable to the order
of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees
---- ------------
to pay to the Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the Effective Date in the
case of each Initial Lender and from the later of the Effective Date and the
effective date specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
commencing September 30, 2001, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent
------------
for its own account such fees as may from time to time be agreed between the
Borrower and the Agent, and shall pay to each Co-Lead Arranger for its own
account such fees and as may from time to time be agreed between the
Borrower and such Co-Lead Arranger.
SECTION 2.05. Termination or Reduction of the Commitments.
-------------------------------------------
The Borrower 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 $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and provided further that
----------------
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
Competitive Bid Advances then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The
--------------------------------------
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.
SECTION 2.07. Interest on Revolving Credit Advances;
-------------------------------------
Regulation D Compensation. (a) Scheduled Interest. The Borrower shall pay
------------------------- ------------------
interest on the unpaid principal amount of each Revolving Credit
15
Advance owing to each Lender from the date of such Revolving Credit
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such
------------------
Revolving Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to
----
time plus (2) the Applicable Utilization Fee, if any, 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.
(ii) 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 in effect from time to time plus (z) the
----
Applicable Utilization Fee, if any, in effect from time to time,
payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during
----------------
the continuance of an Event of Default under Section 6.01(a), the Borrower
shall pay interest on (i) the unpaid principal amount of each Revolving
Credit Advance made to it owing to each Lender, payable in arrears on the
dates referred to in clause (a) above, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Revolving Credit Advance pursuant to clause (a) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in
arrears on the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
(c) Regulation D Compensation. Each Lender that is
-------------------------
subject to reserve requirements of the Board of Governors of the Federal
Reserve System (or any successor) may require the Borrower to pay,
contemporaneously with each payment of interest on Eurodollar Rate Advances
or LIBO Rate Advances, additional interest on the related Eurodollar Rate
Advances or LIBO Rate Advances, as applicable, of such Lender at the rate
per annum equal to the excess of (i)(A) the applicable Eurodollar Rate or
LIBO Rate, divided by (B) one minus the Eurodollar Rate Reserve Percentage
over (ii) the rate specified in clause (i)(A). Any Lender wishing to require
payment of such additional interest shall so notify the Agent and the
Borrower, in which case such additional interest on the Eurodollar Rate
Advances or LIBO Rate Advances, as applicable, of such Lender shall be
payable to such Lender at the place indicated in such notice with respect to
each Interest Period commencing after the giving of such notice.
SECTION 2.08. Interest Rate Determination. (a) Each
---------------------------
Reference Bank agrees to furnish to the Agent timely information for the
purpose of determining each Eurodollar Rate and each LIBO Rate. 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 Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.07(a)(ii).
(b) If, 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 make, or to Convert Revolving Credit Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
16
(c) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Agent will forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which 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.
(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 Telerate Markets Page 3750 (or any successor
page) is unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate or LIBO Rate
for any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, 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 Eurodollar
Rate Advances or LIBO Rate Advances, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
---------------------------------------
Advances. The Borrower 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 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 Borrower giving such
notice.
SECTION 2.10. Optional Prepayments of Revolving Credit
----------------------------------------
Advances. The Borrower may, in the case of Eurodollar Rate Advances, upon at
--------
least two Business Days' notice to the Agent and, in the case of Base Rate
Advances, upon notice to the Agent not later than 10:00 A.M. (New York City
time) on the date of the proposed prepayment, stating in each case the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower 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 $10,000,000 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 Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
17
SECTION 2.11. Increased Costs. (a) If, due to either (i)
---------------
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances
or LIBO Rate Advances (excluding for purposes of this Section 2.11 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.14 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or
has its Applicable Lending Office or any political subdivision thereof),
then such Lender may from time to time give notice of such circumstances to
the Borrower (with a copy of such notice to the Agent); provided, however,
-------- -------
that each Lender agrees, before giving any such notice, to use its
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office
if the making of such designation would avoid the need for, or reduce the
amount of, such increased costs and would not be disadvantageous to such
Lender. The amount sufficient to compensate such Lender in light of such
increase in costs to such Lender or any corporation controlling such Lender
shall be determined by such Lender in good faith on a basis that allocates
the amounts sufficient to compensate such Lender in light of such increase
ratably among all applicable Advances. A certificate specifying the event
referred to in this Section 2.11(a), the amount sufficient to compensate
such Lender and the basis of its calculations (which shall be reasonable),
submitted in good faith to the Borrower and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error. Each
Lender agrees to provide reasonably prompt notice to the Borrower of the
occurrence of any event referred to in the first sentence of this Section
2.11(a).
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the
date hereof affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, such Lender may from time to time give
notice of such circumstances to the Borrower (with a copy of such notice to
the Agent); provided, however, that each Lender agrees, before giving any
-------- -------
such notice, to use its reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid the
need for, or reduce the amount of, the cost to such Lender of such increase
in the amount of capital maintained by such Lender and would not be
disadvantageous to such Lender. The amount sufficient to compensate such
Lender in light of such increase in capital maintained by such Lender or any
corporation controlling such Lender shall be determined by such Lender in
good faith to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate specifying the event referred to
in this Section 2.11(b), the amount sufficient to compensate such Lender and
the basis of its calculations (which shall be reasonable), submitted in good
faith to the Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error. Each Lender agrees to
provide reasonably prompt notice to the Borrower of the occurrence of any
event referred to in the first sentence of this Section 2.11(b).
(c) The Borrower shall, within five days of receiving a
notice from any Lender pursuant to clause (a) or (b) of this Section 2.11,
elect (and shall notify such Lender and the Agent of such election) to:
(i) pay to the Agent for the account of such Lender,
from time to time commencing on the date of notice by such Lender
and as specified by such Lender, (A) the amount such Lender has set
forth in the certificate which such Lender has delivered to the
Borrower pursuant to clause (a) of this Section 2.11 or (B) the
amount such Lender has set forth in the certificate which such
Lender has delivered to the Borrower pursuant to clause (b) of this
Section 2.11, as the case may be; or
(ii) terminate such Lender's Commitment on a date which
shall be specified in the notice sent by the Borrower, and such
Lender's Commitment shall terminate on such date; provided,
--------
however, that the aggregate amount of the Commitments of the
-------
Lenders shall not be reduced, as a result of any such termination,
to an amount that is less than the sum of the aggregate principal
amount of the Advances then outstanding; provided, further, that
-------- -------
such termination shall not be effective if, after giving effect to
such termination, the aggregate amount of the Commitments so
terminated or assigned under this Section 2.11 and Section 2.12(b)
during the term of this Agreement would exceed 25% of the aggregate
amount of the
18
Commitments as of the Effective Date; and provided further, that
-------- -------
upon termination of a Lender's Commitment under this Section
2.11(c)(ii), the Borrower shall on the date such termination
becomes effective pay, prepay or cause to be prepaid the aggregate
principal amount of all Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such
principal amount, all facility fees and other fees payable to such
Lender and all other amounts payable to such Lender under this
Agreement (including, but not limited to, any increased costs or
other additional amounts (computed in accordance with this Section
2.11), and any Taxes, incurred by such Lender prior to the
effective date of such termination and amounts payable under
Section 8.04(a)). Upon such payments and prepayments, the
obligations of such Lender hereunder, by the provisions hereof,
shall be released and discharged. Such Lender's rights under
Sections 2.11, 2.14 and 8.04(b), and its obligations under Section
7.05, shall survive such release and discharge as to matters
occurring prior to date of such termination; or
(iii) require that such Lender assign to the Borrower's
designated assignee or assignees, in accordance with the terms of
Section 8.07, all Advances then owing to such Lender and all rights
and obligations of such Lender hereunder; provided that (A) each
--------
such assignment shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or assignments which
together cover all of the rights and obligations of the assigning
Lender under this Agreement, (B) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower
pursuant to this Section 2.11(c) unless and until such Lender shall
have received one or more payments from either the Borrower or one
or more assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of all Advances owing to
such Lender, together with accrued interest thereon to the date of
payment of such principal amount, all facility fees and other fees
payable to such Lender and all other amounts payable to such Lender
under this Agreement (including, but not limited to, any increased
costs or other additional amounts (computed in accordance with this
Section 2.11), and any Taxes, incurred by such Lender prior to the
effective date of such assignment and amounts payable under Section
8.04(a)) and (C) each such assignment shall be made pursuant to an
Assignment and Acceptance; provided, however, that such assignment
-------- -------
shall not be effective if, after giving effect to such assignment,
the aggregate amount of the Commitments so assigned or terminated
under this Section 2.11 and Section 2.12(b) during the term of this
Agreement would exceed 25% of the aggregate amount of the
Commitments as of the Effective Date. Upon such payments and
prepayments, the obligations of such Lender hereunder, by the
provisions hereof, shall be released and discharged; provided,
--------
however, that such Lender's rights under Sections 2.11, 2.14 and
-------
8.04(b), and its obligations under Section 7.05, shall survive such
release and discharge as to matters occurring prior to the date of
termination of such Lender's Commitment.
SECTION 2.12. Illegality. (a) Notwithstanding any other
----------
provision of this Agreement, if any Lender (any such Lender being referred
to herein as an "Affected Lender") shall notify the Agent that the
---------------
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar Rate
Advances or LIBO Rate Advances hereunder, 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 Borrower and the Lenders
that the circumstances causing such suspension no longer exist. The
Borrower's right to require an assignment in accordance with clause (b)(ii)
below shall not be effective to the extent that Lenders representing a
majority of the Commitments then outstanding shall be "Affected Lenders".
(b) The Borrower shall, within five days of receiving
a notice from any Affected Lender pursuant to clause (a) of this Section 2.12,
elect (and shall notify such Affected Lender and the Agent of such election)
to:
(i) prepay in full all Eurodollar Rate Advances or LIBO
Rate Advances then outstanding, together with interest thereon,
unless in the case of Eurodollar Rate Advances the Borrower, within
five Business Days of written notice from the Agent, converts all
Eurodollar Rate Advances of all Lenders then outstanding into Base
Rate Advances in accordance with Section 2.09; or
19
(ii) require that such Affected Lender assign to the
Borrower's designated assignee or assignees, in accordance with the
terms of Section 8.07, all Advances then owing to such Affected
Lender and all rights and obligations of such Affected Lender
hereunder; provided that (A) each such assignment shall be either
--------
an assignment of all of the rights and obligations of the assigning
Affected Lender under this Agreement or an assignment of a portion
of such rights and obligations made concurrently with another such
assignment or assignments which together cover all of the rights
and obligations of the assigning Affected Lender under this
Agreement, (B) no Affected Lender shall be obligated to make any
such assignment as a result of a demand by the Borrower pursuant to
this Section 2.12(b) unless and until such Affected Lender shall
have received one or more payments from either the Borrower or one
or more assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of all Advances owing to
such Affected Lender, together with accrued interest thereon to the
date of payment of such principal amount, all facility fees and
other fees payable to such Affected Lender and all other amounts
payable to such Affected Lender under this Agreement (including,
but not limited to, any increased costs or other additional amounts
(computed in accordance with Section 2.11), and any Taxes, incurred
by such Affected Lender prior to the effective date of such
assignment and amounts payable under Section 8.04(a)) and (C) each
such assignment shall be made pursuant to an Assignment and
Acceptance; provided, however, that such assignment shall not be
-------- -------
effective if, after giving effect to such assignment, the aggregate
amount of the Commitments so assigned or terminated under this
Section 2.12(b) and Section 2.11 during the term of this Agreement
would exceed 25% of the aggregate amount of the Commitments as of
the Effective Date. Upon such payments and prepayments, the
obligations of such Affected Lender hereunder, by the provisions
hereof, shall be released and discharged; provided, however, that
-------- -------
such Affected Lender's rights under Sections 2.11, 2.14 and
8.04(b), and its obligations under Section 7.05, shall survive such
release and discharge as to matters occurring prior to the date of
termination of such Affected Lender's Commitment.
SECTION 2.13. Payments and Computations. (a) The Borrower
-------------------------
shall make each payment hereunder and under the Notes 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 ratably (other than amounts payable pursuant to
Section 2.03, 2.11, 2.14 or 8.04(c)) 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 any Assuming Lender
becoming a Lender hereunder as a result of an extension of the Termination
Date pursuant to Section 2.17, and upon the Agent's receipt of such Lender's
Assumption Agreement and recording of the information contained therein in
the Register, from and after the applicable Extension Date, the Agent shall
make all payments hereunder and under any Notes issued in connection
therewith in respect of the interest assumed thereby to the Assuming Lender.
Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and
Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) All computations of interest based on the Base Rate
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 LIBO Rate or the Federal Funds Rate or in respect of Fixed Rate
Advances and of facility fees 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 are payable. Each determination by the Agent of an
interest rate and of facility fees hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes
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, as the case may be; provided, however, that, if
-------- -------
such extension would cause payment of interest on or principal of Eurodollar
Rate
20
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 Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the Agent
may assume that the 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 the 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) Any and all payments by the
-----
Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.13, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
---------
case of each Lender and the Agent, taxes imposed on its overall net income,
and franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender or the Agent (as the case
may be) is organized or any political subdivision thereof and, in the case
of each Lender, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by
-----
law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.14) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower shall indemnify each Lender and the
Agent for and hold it harmless against the full amount of Taxes or Other
Taxes (including, without limitation, taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.14) imposed on or paid
by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower making such payment shall furnish to the Agent, at its
address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing such payment. In the case of any payment hereunder or
under the Notes by or on behalf of the Borrower through an account or branch
outside the United States or by or on behalf of the Borrower by a payor that
is not a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, the Borrower shall furnish, or shall cause such
payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United
------
States" and "United States person" shall have the meanings specified in
------ --------------------
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, 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 Assumption Agreement or the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Lender, and
from time to time thereafter as requested in writing by the Borrower (but only
so long as such Lender remains lawfully able to do so), shall provide each of
the Agent and the Borrower with two original
21
Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall
be considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the
-------- -------
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in
the future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender assignee on
such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by
Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably
considers to be confidential, the Lender shall give notice thereof to the
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in
Section 2.14(e) (other than if such failure is due to a change in law
----- ----
occurring subsequent to the date on which a form originally was required to
be provided, or if such form otherwise is not required under subsection (e)
above), such Lender shall not be entitled to indemnification under Section
2.14(a) or (c) with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a Lender become subject to
-------- -------
Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as the Lender shall reasonably request to
assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change
the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
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 2.11, 2.14 or
8.04(c)) 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. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the
---------------
Advances shall be available (and the Borrower agrees that it shall use such
proceeds) solely for general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 2.17. Extension of Termination Date. (a) At least
-----------------------------
30 days but not more than 45 days prior to the Termination Date, the
Borrower, by written notice to the Agent, may request an extension of the
Termination Date in effect at such time by 364 days from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not earlier than 30 days
but not later than 20 days prior to the Termination Date, notify the
Borrower and the Agent in writing as to whether such
22
Lender will consent to such extension, such notice to be in substantially
the form of Exhibit E hereto. If any Lender shall fail to notify the Agent
and the Borrower in writing of its consent to any such request for extension
of the Termination Date at least 20 days prior to the Termination Date, such
Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Agent shall notify the Borrower in writing not later than 15
days prior to the Termination Date of the decision of the Lenders regarding
the Borrower' request for an extension of the Termination Date.
(b) If all the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.17, the
Termination Date in effect at such time shall, effective as at the
Termination Date (the "Extension Date"), be extended for 364 days; provided
-------------- --------
that on each Extension Date, the applicable conditions set forth in Article
III shall be satisfied. If less than all of the Lenders consent in writing
to any such request in accordance with subsection (a) of this Section 2.17,
the Termination Date in effect at such time shall, subject to Section
2.17(d) and effective as at the applicable Extension Date, be extended as to
those Lenders that so consented (each a "Consenting Lender") but shall not
-----------------
be extended as to any other Lender (each a "Non-Consenting Lender"). To the
---------------------
extent that the Termination Date is not extended as to any Lender pursuant
to this Section 2.17 and the Commitment of such Lender is not assumed in
accordance with subsection (c) of this Section 2.17 on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender
shall automatically terminate in whole on such unextended Termination Date
without any further notice or other action by the Borrower, such Lender or
any other Person; provided that such Non-Consenting Lender's rights under
--------
Sections 2.11, 2.14 and 8.04, and its obligations under Section 7.05, shall
survive the Termination Date for such Lender as to matters occurring prior
to such date. It is understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the Borrower for any
requested extension of the Termination Date.
(c) If fewer than all of the Lenders consent to any
such request pursuant to subsection (a) of this Section 2.17, the Agent
shall promptly so notify the Consenting Lenders, and each Consenting Lender
may, in its sole discretion, give written notice to the Agent not later than
10 days prior to the Termination Date of the amount of the Non-Consenting
Lenders' Commitments for which it is willing to accept an assignment. If the
Consenting Lenders notify the Agent that they are willing to accept
assignments of Commitments in an aggregate amount that exceeds the amount of
the Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Borrower and the Agent. If after
giving effect to the assignments of Commitments described above there
remains any Commitments of Non-Consenting Lenders, the Borrower may arrange
for one or more Consenting Lenders or other Eligible Assignees that agrees
to an extension of the Termination Date (an "Assuming Lender") to assume,
---------------
effective as of the Extension Date, any Non-Consenting Lender's Commitment
and all of the obligations of such Non-Consenting Lender under this
Agreement thereafter arising, without recourse to or warranty by, or expense
to, such Non-Consenting Lender; provided, however, that the amount of the
-------- -------
Commitment of any such Assuming Lender as a result of such substitution
shall in no event be less than $10,000,000 unless the amount of the
Commitment of such Non-Consenting Lender is less than $10,000,000, in which
case such Assuming Lender shall assume all of such lesser amount; and
provided further that:
-------- -------
(i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender (A) the aggregate principal
amount of, and any interest accrued and unpaid to the effective
date of the assignment on, the outstanding Advances, if any, of
such Non-Consenting Lender plus (B) any accrued but unpaid facility
----
fees owing to such Non-Consenting Lender as of the effective date
of such assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting
Lender, and all other accrued and unpaid amounts owing to such
Non-Consenting Lender hereunder, as of the effective date of such
assignment shall have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the
applicable processing and recordation fee required under Section
8.07(a) for such assignment shall have been paid by the Assuming
Lender;
provided further that such Non-Consenting Lender's rights under Sections
-------- -------
2.11, 2.14 and 8.04, and its obligations under Section 7.05, shall survive
such substitution as to matters occurring prior to the date of substitution.
At least
23
three Business Days prior to any Extension Date, (A) each such Assuming
Lender, if any, shall have delivered to the Borrower and the Agent an
assumption agreement in substantially the form of Exhibit D (each an
"Assumption Agreement") or an Assignment and Acceptance, as appropriate,
--------------------
duly executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.17 shall have delivered to the
Agent any Note or Notes held by such Non-Consenting Lender. Upon the payment
or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of
the immediately preceding sentence, each such Consenting Lender or Assuming
Lender, as of the Extension Date, will be substituted for such Non-Consenting
Lender under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder
shall, by the provisions hereof, be released and discharged.
(d) If the Lenders having more than 50% of the
Commitments (after giving effect to any assignments pursuant to subsection
(c) of this Section 2.17) consent in writing to a requested extension
(whether by execution or delivery of an Assumption Agreement, an Assignment
and Acceptance or otherwise) not later than one Business Day prior to such
Extension Date, the Agent shall so notify the Borrower, and, upon
satisfaction of the applicable conditions set forth in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.17, and all
references in this Agreement, and in the Notes, if any, to the "Termination
-----------
Date" shall, with respect to each Consenting Lender and each Assuming Lender
----
for such Extension Date, refer to the Termination Date as so extended.
Promptly following each Extension Date, the Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of
the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Assuming Lender.
SECTION 2.18. Evidence of Debt. (a) Each Lender shall
----------------
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from
each Advance owing to such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder in respect of Advances. The Borrower agrees that upon notice by
any Lender (with a copy of such notice to the Agent) to the effect that a
Note is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances
owing to, or to be made by, such Lender, the Borrower shall promptly execute
and deliver to such Lender a Note payable to the order of such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to
Section 8.07(d) shall include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded (i)
the date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assumption Agreement and each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iv) the amount of any sum
received by the Agent from the Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence
----- -----
of the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and,
in the case of such account or accounts, such Lender, under this Agreement,
absent manifest error; provided, however, that the failure of the Agent or
-------- -------
such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect
the obligations of the Borrower under this Agreement.
24
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
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 31, 2000, other than any
changes reflected in subsequent filings by the Borrower with the
Securities and Exchange Commission prior to the date hereof.
(b) As of the Effective Date, there shall exist no
action, suit, investigation, litigation or proceeding affecting the
Borrower or any of its Consolidated Subsidiaries pending or, to its
knowledge, threatened before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect other than the matters disclosed by the Borrower in
filings with the United States Securities and Exchange Commission
prior to the date hereof or described on Schedule 3.01(b) hereto
(collectively, the "Disclosed Litigation") or (ii) purports and is
--------------------
reasonably likely to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(c) As of the Effective Date, the Borrower shall not
have been notified that anything has 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;
without limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records, books of
account, contracts and properties of the Borrower and its
Subsidiaries as they shall have reasonably requested.
(d) 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, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that
restrains, prevents or imposes materially adverse conditions upon
the transactions contemplated hereby.
(e) The Borrower shall have notified the Agent as to
the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and
invoiced expenses of the Agent and the Lenders (including the
accrued fees and invoiced expenses of counsel to the Agent).
(g) 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
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Effective
Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) 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 the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of
the Lenders to the extent requested by any Lender pursuant
to Section 2.18.
25
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement and the Revolving Credit Notes to be delivered
by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to
sign this Agreement and such Notes to be delivered by it
and the other documents to be delivered by it hereunder.
(iv) A favorable opinion of the General Counsel or
Associate General Counsel of the Borrower, in form and
substance satisfactory to the Agent.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory
to the Agent.
(i) The Borrower shall have terminated the commitments,
and paid in full all Debt, interest, fees and other amounts
outstanding, under the 364-Day Credit Agreement dated as of August
8, 2000 among the Borrower, the lenders and agents parties thereto
and Citibank, as administrative agent, and each of the Lenders that
is a party to each such credit agreement hereby waives, upon
execution of this Agreement the requirement of prior notice under
each such credit agreement relating to the termination of
commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Revolving
--------------------------------------
Credit Borrowing and Extension Date. The obligation of each Lender to make a
-----------------------------------
Revolving Credit Advance on the occasion of each Revolving Credit Borrowing
and each extension of Commitments pursuant to Section 2.17 shall be subject
to the conditions precedent that the Effective Date shall have occurred and
on the date of such Revolving Credit Borrowing or the applicable Extension
Date the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, request for Commitment
Extension and the acceptance by the Borrower of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Revolving Credit Borrowing or such
Extension Date such statements are true):
(a) the representations and warranties contained in
Section 4.01 (except in the case of each Revolving Credit
Borrowing, the representations set forth in subsection (e) thereof
and in subsection (f)(i) thereof) are correct on and as of the date
of such Revolving Credit Borrowing or such Extension Date, before
and after giving effect to such Revolving Credit Borrowing or such
Extension Date 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 Revolving Credit Borrowing or such Extension Date
or from the application of the proceeds therefrom, that constitutes
a Default.
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, (ii) on or before the date of such Competitive Bid Borrowing, but
prior to such Competitive Bid Borrowing, the Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one
or more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and otherwise
on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) 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 the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
26
(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)(i)
thereof) are correct 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.
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
date that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
-------------------------------------
Borrower. The Borrower represents and warrants as follows:
--------
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the Notes to be delivered by it, and
the consummation of the transactions contemplated hereby, are
within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due
execution, delivery and performance by the Borrower of this
Agreement or the Notes to be delivered by it, other than those
authorizations, approvals, notices, filings and actions that have
been obtained, filed or taken on or before the Effective Date.
(d) This Agreement has been, and each of the Notes to
be delivered by it when delivered hereunder will have been, duly
executed and delivered by the Borrower. This Agreement is, and each
of the Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Borrower enforceable against the Borrower
in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at December 31, 2000, and the related
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Deloitte & Touche LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower and
its Subsidiaries as at March 31, 2001, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer, Treasurer, Assistant Treasurer, Controller
or Assistant Controller of the Borrower, copies of which have been
furnished to each Lender, fairly present, subject, in the case of
said balance sheet as at March 31, 2001, and said statements of
income and cash flows for the three months then ended, to year-end
audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance with generally
accepted accounting principles consistently applied. Except as
disclosed in the Borrower's
27
Quarterly Report on Form 10-Q for the quarter ending March 31,
2001, since December 31, 2000, there has been no Material Adverse
Change.
(f) There is no pending or, to the knowledge of the
Borrower, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Consolidated
Subsidiaries before any court, governmental agency or arbitrator
that (i) is reasonably likely to have a Material Adverse Effect
(other than the Disclosed Litigation), and there has been no
material adverse change in the status, or financial effect on the
Borrower or any of its Consolidated Subsidiaries, of the Disclosed
Litigation or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or the consummation of
the transactions contemplated hereby.
(g) The Borrower is not an "investment company", or a
company "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940, as amended.
SECTION 4.02. Representation and Warranty of the Lenders.
------------------------------------------
Each Lender represents and warrants that in good faith it has not and will
not rely upon any margin stock (as such term is defined in Regulation U of
the Board of Governors of the Federal Reserve System) as collateral in the
making and maintaining of its Advances hereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
---------------------
Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
-------------------------
of its Material 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 such non-compliance as would not
have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
---------------------
each of its Material Subsidiaries to pay and discharge, before the
date on which penalties are attached thereto, all taxes,
assessments and governmental charges or levies imposed upon it or
upon its property; provided, however, that neither the Borrower nor
-------- -------
any of its Material 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 or are not of
material importance to the business, financial condition or results
of operations of the Borrower and its Consolidated Subsidiaries.
(c) Maintenance of Insurance. Maintain, and cause each
------------------------
of its Material Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or associations in
such amounts and covering such risks as is consistent with prudent
business practice. This section shall not prevent the use of
deductible or excess loss insurance and shall not prevent the
Borrower or a Consolidated Subsidiary from acting as a self-insurer
or maintaining insurance with a Subsidiary or Subsidiaries so long
as such action is consistent with sound business practice.
(d) Preservation of Corporate Existence, Etc. Preserve
----------------------------------------
and maintain its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Borrower may
-------- -------
consummate any merger or consolidation permitted under Section
5.02(b) and provided further that the Borrower shall not be
-------- -------
required to preserve any right or franchise if the Borrower shall
determine that the preservation thereof is no longer desirable in
the conduct of the business of the Borrower.
(e) Keeping of Books. Keep, and cause each of its
----------------
Material Subsidiaries to keep, proper books of record and account,
in which full and correct entries shall be made of all financial
transactions and the
28
assets and business of the Borrower and each such Material
Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(f) Reporting Requirements. Furnish to the Agent, and
----------------------
in sufficient copies for the Lenders (provided, however, that, in
-------- -------
the case of the Consolidated balance sheet and Consolidated
statements of income and cash flows referred to in clause (i)
below, the annual audit report and accompanying information
referred to in clause (ii) below and the reports and registration
statements referred to in clause (iv) below, such information will
be deemed to have been furnished to the Agent if it is readily
available through XXXXX):
(i) as soon as available and in any event within
60 days after the end of each of the first three quarters
of each fiscal year of the Borrower, the Consolidated
balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the
Chief Financial Officer, Treasurer, Assistant Treasurer,
Controller, Assistant Controller, or other authorized
financial officer of the Borrower as having been prepared
in accordance with generally accepted accounting
principles and certificates of the Chief Financial Officer
Treasurer, Assistant Treasurer, Controller or Assistant
Controller of the Borrower as to compliance with the terms
of this Agreement;
(ii) as soon as available and in any event within
120 days after the end of each fiscal year of the
Borrower, a copy of the annual audit report for such year
for the Borrower and its Subsidiaries, containing the
Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion acceptable to the
Required Lenders by Deloitte & Touche LLP or other
independent public accountants acceptable to the Required
Lenders;
(iii) as soon as possible and in any event within
five days after the determination by the Borrower of the
occurrence of a Default that is continuing on the date of
such statement, a statement of the Chief Financial
Officer, Treasurer, Assistant Treasurer, Controller,
Assistant Controller, or other authorized financial
officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all material reports that the Borrower sends to
its securityholders (or any class of them) or its
creditors (or any class of them), and copies of all
reports and registration statements that the Borrower or
any Subsidiary files with the Securities and Exchange
Commission;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Borrower
or any of its Subsidiaries of the type described in
Section 4.01(f); and
(vi) such other information (excluding trade
secrets) respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time
to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance
------------------
shall remain unpaid or any Lender shall have any Commitment hereunder, no
Borrower will:
(a) Liens, Etc. Create or suffer to exist, or permit
----------
any of its Material Subsidiaries to create or suffer to exist, any
Lien on or with respect to any of its properties, whether now owned
or hereafter acquired, or assign, or permit any of its Material
Subsidiaries to assign, any right to receive income, other than:
29
(i) (A) Liens for taxes, assessments, governmental
charges or levies or other amounts owed to governmental
entities other than for borrowed money; (B) Liens imposed
by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing
obligations that are not overdue for a period of more than
30 days or that are being contested in good faith; (C)
pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure
public or statutory obligations; (D) easements, rights of
way and other encumbrances on title to real property that
do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of
such property for its present purposes; and (E) Liens in
favor of a landlord arising in the ordinary course of
business,
(ii) purchase money Liens upon or in any property,
assets or stock acquired or held by the Borrower or any
Material Subsidiary in the ordinary course of business to
secure the purchase price or construction cost of such
property or to secure Debt incurred solely for the purpose
of financing the acquisition or construction of such
property whether incurred prior or subsequent to such
acquisition or construction, or Liens existing on such
property at the time of its acquisition (other than any
such Lien created in contemplation of such acquisition) or
extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided,
--------
however, that no such Lien shall extend to or cover any
-------
property other than the property being acquired, and no
such extension, renewal or replacement shall extend to or
cover any property not theretofore subject to the Lien
being extended, renewed or replaced,
(iii) Liens existing on the Effective Date,
(iv) (A) assignments of the right to receive income
in connection with any Permitted Receivables Financing and
(B) other Liens that would otherwise be prohibited;
provided that the Aggregate Amount of Financing
--------
Outstanding in connection with Permitted Receivables
Financings described in clause (A), plus the aggregate
principal amount of Debt secured by Liens described in
clause (B) at any time outstanding, shall not exceed 10%
of the Consolidated Net Worth of the Borrower at such
time,
(v) the replacement, extension or renewal of any
Lien permitted by clauses (ii) and (iii) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of
the amount secured thereby, and
(vi) intercompany Liens.
(b) Mergers, Etc. Merge or consolidate with or into,
------------
or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to, any
Person, or permit any of its Material Subsidiaries to do so, except
that (x) any Material Subsidiary of the Borrower may merge or
consolidate with or into, or dispose of assets to, any other
Material Subsidiary of the Borrower or any other Subsidiary of the
Borrower that shall become a Material Subsidiary as a result of
such transaction and (y) any Material Subsidiary of the Borrower
may merge into or dispose of assets to the Borrower, provided, in
--------
each case, that no Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom.
(c) Change in Nature of Business. Make, or permit any
----------------------------
of its Subsidiaries to make, any material change in the nature of
its business taken as a whole as carried on at the date hereof.
SECTION 5.03. Financial Covenant. So long as any Advance
------------------
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower shall maintain at the end of each fiscal quarter of the Borrower a
Leverage Ratio of not more than 0.45:1.00.
30
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) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the Borrower
shall fail to pay any interest on any Advance or make any other
payment of fees or other amounts payable under this Agreement or
any Note within five Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by the Borrower
herein or by the Borrower (or any of its officers) in connection
with this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.01(d) or
(f)(iii), 5.02(a), 5.02(b) or 5.03, or (ii) the Borrower shall fail
to perform or observe any term, covenant or agreement contained in
Section 5.01(f)(i) or (ii) if such failure shall remain unremedied
for 5 days after written notice thereof shall have been given to
the Borrower by the Agent or any Lender, or (iii) the Borrower
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 the Borrower
by the Agent or any Lender; or
(d) The Borrower or any of its Material 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 $50,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Material 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
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
(e) The Borrower or any of its Material 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 the Borrower or
any of its Material 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),
either 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 the Borrower or any of its Material
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 in the aggregate shall be rendered against
the Borrower or any of its Material Subsidiaries and either (i) a
lawsuit shall have been properly commenced by any creditor to
enforce such judgment or order or (ii) such judgment is not, within
30 days after entry thereof, paid, bonded, discharged or stayed
during appeal, or is not discharged
31
within 30 days after the expiration of such stay; provided,
--------
however, that the rendering of 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 properly disputed the claim made for payment of, the
amount of such judgment or order; or
(g) Any Person or two or more Persons acting in concert
(other than Pharmacia Corporation and its Subsidiaries) shall have,
on or after the date of this Agreement, acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 25% or
more of the combined voting power of all Voting Stock of the
Borrower; or (ii) during any period of up to 24 consecutive months,
commencing on or after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the
Borrower (together with any new directors who (A) were properly and
duly elected to the board of directors pursuant to the Borrower's
bylaws by the affirmative vote of a majority of the remaining
directors then in office or (B) were nominated by a majority of the
remaining members of the board of directors of the Borrower and
thereafter elected as directors by the shareholders of the
Borrower) shall cease for any reason to constitute a majority of
the board of directors of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall
incur, or, in the reasonable opinion of the Required Lenders, shall
be reasonably likely to incur liability in excess of $75,000,000 in
the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event, provided that the occurrence of the
--------
ERISA Event described in PBGC Regulation Sections 4040.23, 4043.29
or 4043.32 shall constitute an Event of Default under this Section
6.01(h) only if it is reasonably expected to result in a Material
Adverse Effect, (ii) the partial or complete withdrawal of the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan;
or (iii) the reorganization or termination of a Multiemployer Plan;
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 Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, 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 notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, that in
-------- -------
the event of an actual or deemed entry of an order for relief with respect to
the Borrower 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, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
------------------------
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. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and
such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Agent shall not be required to take any
-------- -------
action that exposes the Agent to personal liability or that is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender
prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
32
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
---------------------
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Agent: (i) may treat the Lender that made any Advance as the holder of the
Debt resulting therefrom until the Agent receives and accepts an Assumption
Agreement entered into by an Assuming Lender as provided in Section 2.17 or
an Assignment and Acceptance entered into by such Lender, as assignor, and
an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
-----------------------
Commitment, the Advances made by it and any Note issued to it, Citibank
shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any Person who
may do business with or own securities of the Borrower or any such
Subsidiary, all as if Citibank were not the Agent and without any duty to
account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
----------------------
acknowledges that it has, independently and without reliance upon the Agent
or any other Lender and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. The Lenders agree to
---------------
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit
Advances then owed to each of them (or if no Revolving Credit Advances are
at the time outstanding, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender
----------------- --------
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent
that the Agent is not reimbursed for such expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies whether any such investigation,
litigation or proceeding is brought by the Agent, any Lender or a third
party.
SECTION 7.06. Successor Agent. The Agent may resign at any
---------------
time by giving written notice thereof to the Lenders and the Borrower and
may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor
33
Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, 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 of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby
------------
acknowledges that neither the documentation agent nor any other Lender
designated as any "Agent" on the signature pages hereof has any liability
hereunder other than in its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
---------------
any provision of this Agreement or the Revolving Credit Notes, nor consent
to any departure by the 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) waive any of the conditions specified
in Section 3.01, (b) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (c) reduce the principal of, or
interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (d) 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, (e) 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 or (f) amend this Section 8.01; 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 or any
Note; and provided further that this Section 8.01 shall not apply to changes
-------- -------
in Commitments pursuant to Section 2.11, Section 2.12, Section 2.17 or any
other Section of 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 Borrower, at its address at 000
X. Xxxxxxxxx Xxxxxxxxx, Xx Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer, with an information copy to the Secretary at the same address, if
to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxx
Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to the Borrower 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 Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective upon receipt. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or
of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
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 or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
------------------
to pay on demand all reasonable costs and expenses of the Agent in
connection with the preparation, execution, delivery, administration,
34
modification and amendment of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, (A) all
due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrower 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, the Notes
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 Borrower 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 (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the actual or proposed use of the proceeds of the
Advances by the Borrower or any of its Subsidiaries or (ii) the actual or
alleged presence of Hazardous Materials on any property of the Borrower or
any of its Subsidiaries or any Environmental Action relating in any way to
the Borrower or any of its Subsidiaries, except to the extent such claim,
damage, loss, liability or expense resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower also
agrees not to assert any claim against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest
Period for such Advance, 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, or by an Eligible
Assignee to a Lender other than on the last day of the Interest Period for
such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 8.07 as a result of a demand by the Borrower
pursuant to Section 8.07(a), the Borrower 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 (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive the payment
in full of principal, interest and all other amounts payable hereunder and
under the Notes.
SECTION 8.05. Right of Set-off. Nothing herein shall
----------------
derogate any Lender's right, if any, if and to the extent payment owed to
such Lender is not made when due hereunder or under any Note held by such
Lender, to set off from time to time against any or all of the Borrower's
deposit (general or special, time or demand, provisional or final) accounts
with such Lender any amount so due. Each Lender agrees promptly to notify
the Borrower after any such set off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity
of such set off and application. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies which such Lender
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
35
Section 3.01) when it shall have been executed by the Borrower 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 Borrower, the Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
------------------------------
Lender may and, if demanded by the Borrower (following a demand by such
Lender pursuant to Section 2.11 or Section 2.12 if no Default has occurred
and is continuing) upon at least 5 Business Days' notice to such Lender and
the Agent or if required pursuant to Section 2.17, 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, the Revolving Credit Advances owing to it and any Revolving
Credit Note or Notes held by it, and any Competitive Bid Advances or
Competitive Bid Notes held by it required to be assigned pursuant to Section
2.11 or Section 2.12) with the consent of the Agent and, so long as no
Default has occurred and is continuing, the Borrower (which consent shall
not unreasonably be withheld); 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 Competitive Bid
Advances owing to it and any Competitive Bid Notes held by it, except any
such Competitive Bid Advances or Competitive Bid Notes required to be
assigned pursuant to Section 2.11 or Section 2.12), (ii) except in the case
of an assignment to an Affiliate of such Lender or 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 $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a)
shall be arranged by the Borrower 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
Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower 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 shall execute and deliver to
the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Revolving Credit Note subject to such
assignment and a processing and recordation fee of $3,500, and (vii) any
Lender may, without the approval of the Borrower and the Agent, assign all
or a portion of its rights to any of its Affiliates. 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 (other than its rights under Sections
2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an event
arising prior to such assignment) and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or
the performance or observance by the Borrower of any of its obligations
under this Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents
36
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) The Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assumption Agreement and 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 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 the 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 Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
Borrower.
(e) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates)
in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and any Note or Notes held by it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note or the Guaranty, or any consent to
any departure by the 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. Upon the sale of a participation pursuant to this Section
8.07(e), such Lender shall promptly provide notice to the Borrower of the
sale of a participation (other than a sale of a participation pursuant to
Section 2.15); provided, however, that the failure by such Lender to provide
-------- -------
such notice shall not invalidate the sale of such participation.
(f) 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 the Borrower furnished to such
Lender by or on behalf of the 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 Borrower received by it from such Lender; provided further
-------- -------
that, so long as no Default has occurred and is continuing, the Borrower
shall have consented in advance to the disclosure of any non-public
information, such consent not to be unreasonably withheld.
(g) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and any Note held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
37
(h) Each Lender agrees that it will not assign any
right, obligation or Note, or sell any participation, in any manner or under
any circumstances that would require registration, qualification or filings
under the securities laws of the United States of America, of any state or
any country.
SECTION 8.08. Confidentiality. Neither the Agent nor any
---------------
Lender shall disclose any Confidential Information to any other Person
without the consent of the Borrower, other than (a) to the Agent's or such
Lender's Affiliates and their officers, directors, employees, agents and
advisors and, to the extent contemplated by Section 8.07(f), 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,
provided that the Agent or such Lender, as the case may be, has notified the
--------
Borrower and has otherwise taken reasonable steps to protect such
information from any unnecessary disclosure, and (c) as requested or
required by any state, federal or foreign authority or examiner regulating
banks or banking, provided that, without prejudice to its right to disclose
--------
to such examiner or regulator, the Agent and the Lenders agree to use
reasonable efforts to limit the amount of Confidential Information which is
disclosed.
SECTION 8.09. Governing Law. This Agreement and the Notes
-------------
shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 8.10. 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 the Notes, 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 or the Notes in the
courts of any jurisdiction.
(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 or the Notes in any New York State or federal court. 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.
38
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower,
--------------------
the Agent and the Lenders hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement or the Notes
or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
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.
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
CITIBANK, N.A.,
as Agent
By____________________________
Title:
39
Initial Lenders
---------------
$124,000,000 CITIBANK, N.A.
By____________________________
Title:
$124,000,000 THE CHASE MANHATTAN BANK
By____________________________
Title:
$104,000,000 BANK ONE, NA (MAIN OFFICE CHICAGO)
By____________________________
Title:
$104,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By____________________________
Title:
$104,000,00 COMMERZBANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By____________________________
Title:
$71,500,000 FLEET NATIONAL BANK
By____________________________
Title:
$71,500,000 SOCIETE GENERALE
By____________________________
Title:
40
$45,000,000 INTESABCI
By____________________________
Title:
$31,500,000 THE BANK OF NEW YORK
By_____________________________
Title:
$31,500,000 BARCLAYS BANK PLC
By____________________________
Title:
$31,500,000 BBL INTERNATIONAL (U.K.) LIMITED
By____________________________
Title:
$31,500,000 CREDIT AGRICOLE INDOSUEZ
By____________________________
Title:
$31,500,000 KBC BANK N.V.
By____________________________
Title:
$31,500,000 THE NORTHERN TRUST COMPANY
By____________________________
Title:
41
$31,500,000 WACHOVIA BANK, N.A.
By____________________________
Title:
$31,500,000 WESTPAC BANKING CORPORATION
By____________________________
Title:
$1,000,000,000 Total of the Commitments
42
SCHEDULE I -
APPLICABLE LENDING OFFICES
-----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
-----------------------------------------------------------------------------------------------------------------------
THE BANK OF NEW YORK The Bank of New York The Bank of New York
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: 212-635-8216 T: 212-635-8216
F: 000-000-0000 F: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) Bank One, NA, (Main Office Chicago) Bank One, NA, (Main Office Chicago)
Chicago, Illinois Chicago, Illinois
ABA: 000000000 ABA: 000000000
LS2 Incoming LS2 Incoming
481152860000 481152860000
Ref: Monsanto Co Ref: Monsanto Co
Attn: Xxx Xxxxx Attn: Xxx Xxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000/3013 Fax: 000-000-0000/3013
-----------------------------------------------------------------------------------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., The Bank of Tokyo - Mitsubishi, The Bank of Tokyo - Mitsubishi,
CHICAGO BRANCH Ltd., Chicago Branch Ltd., Chicago Branch
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
BARCLAYS BANK PLC Barclays Bank PLC Barclays Bank PLC
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Global Services Unit Global Services Xxxx
0 Xxx Xxxxx Xxxxxxxxx 0 Xxx Xxxxx Xxxxxxxxx
Canary Wharf Canary Wharf
Xxxxxx Xx0 0XX Xxxxxx Xx0 0XX
Tel: 000-0000-0000 Tel: 000-0000-0000
Fax: 000-0000-0000 Fax: 000-0000-0000
-----------------------------------------------------------------------------------------------------------------------
BBL INTERNATIONAL (U.K.) LIMITED BBL International (U.K.) Limited BBL International (U.K.) Limited
6 Broadgate 0 Xxxxxxxxx
Xxxxxx, XX0X 0XX Xxxxxx, XX0X 0XX
Attn: Credit Department Attn: Credit Department
T: 00-000-000-0000 T: 00-000-000-0000
F: 00-000-000-0000 F: 00-000-000-0000
-----------------------------------------------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK The Chase Manhattan Bank The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx Attn: Xxxxxxx X. Xxxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
Two Penns Way Xxx Xxxxx Xxx
Xxxxx 000 Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxx Attn: Xxx Xxxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN Commerzbank AG, Grand Cayman Branch Commerzbank AG, Grand Cayman Branch
BRANCHES x/x Xxx Xxxx Xxxxxx x/x Xxx Xxxx Branch
Two World Financial Center Two World Financial Center
New York, NY 10281-1050 Xxx Xxxx, XX 00000-0000
Attn: Xx. Xx Xxxxxx Attn: Xx. Xx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
CREDIT AGRICOLE INDOSUEZ Credit Agricole Indosuez Credit Agricole Indosuez
00 X. Xxxxxx Xxxxxx 00 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx Attn: Xxxxxxxx Xxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK Fleet National Bank Fleet National Bank
000 Xxxxxxx Xxxxxx MADE 10010A 000 Xxxxxxx Xxxxxx MADE 10010A
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx - Xxxxxx Attn: Xxxx Xxxxxxx - Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
INTESABCI IntesaBCI IntesaBCI
000 X. Xxxxx XxXxxxx, Xxxxx 0000 000 X. Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Credit Administration Attn: Credit Administration
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
KBC BANK N.V. KBC Bank N.V. KBC Bank N.V.
New York Branch New York Branch
000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
THE NORTHERN TRUST COMPANY The Northern Trust Company The Northern Trust Company
50 X. XxXxxxx 00 X. XxXxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Ms. Xxxxx Honda Attn: Ms. Xxxxx Honda
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
SOCIETE GENERALE Societe Generale Societe Generale
0000 Xxxx Xxx. Xxxxx 0000 0000 Xxxx Xxx. Xxxxx 0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
2
-----------------------------------------------------------------------------------------------------------------------
WACHOVIA BANK, N.A. Wachovia Bank, N.A. Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
WESTPAC BANKING CORPORATION Westpac Banking Corporation Westpac Banking Corporation
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, XX Xxx Xxxx, XX
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxx Xxxxxxxxx
Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------------------------
3
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, Monsanto Company, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
____________________ (the "Lender") for the account of its Applicable Lending
------
Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
364-Day Credit Agreement dated as of August 7, 2001 among the Borrower, the
Lender and certain other lenders parties thereto, Citibank, N.A., as Agent
for the Lender and such other lenders, Xxxxxxx Xxxxx Xxxxxx Inc. and X.X.
Xxxxxx Securities Inc., as co-lead arrangers and co-bookrunners, The Chase
Manhattan Bank, as syndication agent, and Commerzbank AG New York and Grand
Cayman Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA, as
co-documentation agents (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
----------------
defined), outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Revolving Credit Advance from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, in same day funds. Each Revolving Credit Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of
Revolving Credit Advances by the Lender to the Borrower from time to time in
an aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
each such Revolving Credit Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
4
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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5
EXHIBIT A-2 - FORM OF
COMPETITIVE BID PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, MONSANTO COMPANY, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
_________________________ (the "Lender") for the account of its Applicable
------
Lending Office (as defined in the 364-Day Credit Agreement dated as of
August 7, 2001 among the Borrower, the Lender and certain other lenders
parties thereto, Citibank, N.A., as Agent for the Lender and such other
lenders, Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx Securities Inc., as co-lead
arrangers and co-bookrunners, The Chase Manhattan Bank, as syndication agent,
and Commerzbank AG New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents (as
amended or modified from time to time, the "Credit Agreement"; the terms
----------------
defined therein being used herein as therein defined)), on _______________,
200_, the principal amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal amount is
paid in full, at the interest rate and payable on the interest payment date
or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of
the United States of America to Citibank, N.A., as Agent, for the account of
the Lender at the office of Citibank, N.A., at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 in same day funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
EXHIBIT B-1 - FORM OF
NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loans Syndications Department
Ladies and Gentlemen:
The undersigned, Monsanto Company, refers to the 364-Day
Credit Agreement, dated as of August 7, 2001 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
----------------
herein as therein defined), among the undersigned, certain Lenders parties
thereto, Citibank, N.A., as Agent for said Lenders, Xxxxxxx Xxxxx Xxxxxx Inc.
and X.X. Xxxxxx Securities Inc., as co-lead arrangers and co-bookrunners, The
Chase Manhattan Bank, as syndication agent, and Commerzbank AG New York and
Grand Cayman Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA,
as co-documentation agents, 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 _______________, 200_.
(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 initial Interest Period for each Eurodollar
Rate Advance made as part of the Proposed Revolving Credit Borrowing
is __________ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed 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)(i) thereof) are correct, 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 Borrowing Revolving Credit or from the
application of the proceeds therefrom, that constitutes a Default.
Very truly yours,
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Monsanto Company, refers to the 364-Day
Credit Agreement, dated as of August 7, 2001 (as amended or modified from
time to time, the "Credit Agreement", the terms defined therein being used
----------------
herein as therein defined), among the undersigned, certain Lenders parties
thereto, Citibank, N.A., as Agent for the Lender and such other lenders,
Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx Securities Inc., as co-lead
arrangers and co-bookrunners, The Chase Manhattan Bank, as syndication agent,
and Commerzbank AG New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents, and
hereby gives you notice, irrevocably, 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 Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
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:
(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)(i) thereof) are correct, 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;
(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;
(c) no event has occurred and no circumstance exists
as a result of which the information concerning the undersigned
that has been provided to the Agent and each Lender by the
undersigned in connection with the Credit Agreement would include
an untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which
they were made, not misleading; and
(d) the aggregate amount of the Proposed Competitive
Bid Borrowing and all other Borrowings to be made on the same day
under the Credit Agreement is within the aggregate amount of the
unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed
Competitive Bid Borrowing is to be made available to it in accordance with
Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
2
EXHIBIT C - FORM OF ASSIGNMENT
AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as
of August 7, 2001 (as amended or modified from time to time, the "Credit
------
Agreement") among Monsanto Company, a Delaware corporation (the "Borrower"),
--------- --------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent
for the Lenders (the "Agent"), Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx
-----
Securities Inc., as co-lead arrangers and co-bookrunners, The Chase Manhattan
Bank, as syndication agent, and Commerzbank AG New York and Grand Cayman
Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA, as
co-documentation agents. Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse, 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 and
Competitive Bid Notes) 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 and Competitive Bid Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the amount
of the 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; (iii) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations
under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Revolving Credit
Note, if any, held by the Assignor [and requests that the Agent
exchange such Revolving Credit Note for a new Revolving Credit Note
payable to the order of the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement, as
specified on Schedule 1 hereto].
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; (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the
Credit Agreement; and (vii) makes the representation and warranty
set forth in Section 4.02 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 and the Revolving Credit Notes
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 and the Revolving Credit Notes 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 laws 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.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Amount of Commitment assigned: $_______________
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of
Revolving Credit Advances assigned: $_______________
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
---------------------------------
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By
---------------------------------
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
-------------------------------------
Title:
[Approved this __________ day
of _______________, 200_
--------------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
3
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated:
Monsanto Company
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Citibank, N.A.,
as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as
of August 7, 2001 (as amended or modified from time to time, the "Credit
------
Agreement") among Monsanto Company, a Delaware corporation (the "Borrower"),
--------- --------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent
for the Lenders (the "Agent"), Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx
-----
Securities Inc., as co-lead arrangers and co-bookrunners, The Chase Manhattan
Bank, as syndication agent, and Commerzbank AG New York and Grand Cayman
Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA, as
co-documentation agents. Terms defined in the Credit Agreement are used
herein with the same meaning.
The undersigned proposes to become an Assuming Bank
pursuant to Section 2.17 of the Credit Agreement and, in that connection,
hereby agrees that it shall become a Lender for purposes of the Credit
Agreement on [applicable Termination Date] and that its Commitment shall as
of such date be $_______.
The undersigned (the "Assuming Bank") (i) confirms that it
-------------
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 5.01(f) thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (iv) 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; (v) confirms that it is an Eligible Assignee;
[and] (vi) specifies as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof; [and (vii) attaches any U.S. Internal Revenue Service
forms required under Section 2.14] of the Credit Agreement]1 and [(vii)]
[(viii)] makes the representation and warranty set forth in Section 4.02 of
the Credit Agreement.
The effective date for this Assumption Agreement shall be
[applicable Termination Date]. Upon delivery of this Assumption Agreement to
the Borrower and the Agent and acceptance and recording of this Assumption
Agreement by the Agent, as of [date specified above], the Assuming Bank shall
be a party to the Credit Agreement and have the rights and obligations of a
Lender thereunder. As of [date specified above], the Agent shall make all
payments under the Credit Agreement in respect of the interest assumed hereby
(including, without limitation, all payments of principal, interest and
facility fees) to the Assuming Bank.
--------------------------
1 If the Assuming Bank is organized under the laws of a jurisdiction
outside the United States.
This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Assumption Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Assumption
Agreement.
This Assumption Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING BANK]
By
---------------------------------
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Above Acknowledged and Agreed to:
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
Accepted this day of
----
,
---------
CITIBANK, N.A.,
as Agent
By
-----------------------------
Name:
Title:
2
EXHIBIT E - FORM OF NOTICE OF
EXTENSION OF TERMINATION DATE
[Date]
Citibank, N.A.,
as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Monsanto Company
----------------
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as
of August 7, 2001 (as amended or modified from time to time, the "Credit
------
Agreement") among Monsanto Company, a Delaware corporation (the "Borrower"),
--------- --------
the Lenders (as defined in the Credit Agreement), Citibank, N.A., as agent
for the Lenders (the "Agent"), Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx
-----
Securities Inc., as co-lead arrangers and co-bookrunners, The Chase Manhattan
Bank, as syndication agent, and Commerzbank AG New York and Grand Cayman
Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA, as
co-documentation agents. Terms defined in the Credit Agreement are used
herein with the same meaning.
Pursuant to Section 2.17 of the Credit Agreement, the
Lender named below hereby notifies the Agent as follows:
[The Lender named below desires to extend the Termination
Date with respect to [all] [$______] of its Commitment for
a period of 364 days.]
[The Lender named below desires to extend the Termination
Date with respect to all of its Commitment for a period of
364 days and offers to increase its Commitment commencing
[______________] to $__________.]
[The Lender named below does NOT desire to extend the
Termination Date with respect to any of its Commitment for
a period of 364 days.]
This notice is subject in all respects to the terms of the
Credit Agreement, is irrevocable and shall be effective only if received by
the Agent no later than [______________].1
Very truly yours,
[NAME OF LENDER]
By:
--------------------------------
Name:
Title:
--------------------------
1 This date shall be no later than 20 days prior to the then
scheduled Termination Date in the case of an Extending Lender's
notice to extend its Commitment and no later than 15 days prior
to the then scheduled Termination Date in the case of an
Extending Lender's offer to increase its Commitment.
2
