Execution Copy
$950,000,000
NINE-MONTH CREDIT AGREEMENT
____________________________
IBP, inc.
and
BANK OF AMERICA, N.A.,
as Syndication Agent
and
U.S. BANK NATIONAL ASSOCIATION,
As Administrative Agent
Arranged By
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Book Manager
DATED AS OF December 20, 2000
TABLE OF CONTENTS
Page
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1. DEFINITIONS 1
1.1 Accounting Terms 1
1.2 Other Terms 1
2. THE COMMITTED LOAN FACILITY 17
2.1 The Committed Loans. 17
2.2 Borrowing Procedure. 17
2.3 The Committed Loan Notes 18
2.4 Payment of Principal of Committed Loans; PrePayments 19
2.5 Interest on Committed Loans 19
2.6 Conversions and Refunding of Committed Loans 19
2.7 Interest Payments on Committed Loans 20
2.8 Number of Base Rate Loans and LIBOR Loans Outstanding 20
2.9 Inability to Determine Rate 20
2.10 Illegality: Termination of Commitment 21
2.11 Application of Prepayments 21
3. THE ACCEPTANCE FACILITY 22
3.1 Acceptance Commitment. 22
3.2 Notice of Drawing 22
3.3 Preparation of Drafts and Creation of Acceptances 22
3.4 Acceptance Obligation of the Company 23
3.5 Prepayment 24
3.6 Participations in Acceptances. 24
4. THE BID LOAN FACILITY 25
4.1 The Bid Loan Facility 25
4.2 Bid Loan Tender Request Notice 25
4.3 Invitation to Tender for Bid Loans 26
4.4 Submission and Contents of Bid Loan Tenders. 26
4.5 Notice to the Company 27
4.6 Acceptance and Rejection of Bid Loan Tenders. 27
4.7 Making the Bid Loans 29
4.8 The Bid Loan Notes 29
4.9 Interest on Bid Loans 29
4.10 Payments and Prepayments of Bid Loans 29
4.11 Reborrowings 30
5. [RESERVED] 30
6. [RESERVED] 00
-x-
XXXXX XX XXXXXXXX
(xxxx.)
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7. THE FACILITIES IN GENERAL 30
7.1 Payments. 30
7.2 Interest on Overdue Payments 31
7.3 Indemnification 32
7.4 Adjustments of Revolving Commitments 32
7.5 Determinations of Rates 32
7.6 Mandatory Prepayments 33
7.7 Mandatory Prepayments With Respect to Outstanding
Acceptances 33
7.8 Capital Adequacy 33
7.9 Charges: Legal Restrictions 34
7.10 Replacement Banks 35
7.11 Funding 36
7.12 Fees. 36
8. REPRESENTATIONS AND WARRANTIES 36
8.1 Subsidiaries 36
8.2 Existence and Power 37
8.3 Authority 37
8.4 Binding Agreement 37
8.5 Litigation 37
8.6 No Conflicting Agreements 38
8.7 Taxes 38
8.8 Financial Statements 38
8.9 Compliance with Applicable Laws; Environmental Matters 39
8.10 Property 40
8.11 Federal Reserve Regulations 40
8.12 No Misrepresentation 40
8.13 Employee Benefit Plans. 40
8.14 Investment Company Act 41
8.15 Public Utility Holding Company Act 41
9. CONDITIONS OF LENDING -- INITIAL CREDIT EXTENSIONS 41
9.1 Evidence of Execution and Corporate Action. 41
9.2 Opinion of Company Counsel 42
9.3 Other Instruments and Documents 42
9.4 Other Agreements 42
9.5 Fees 42
10. CONDITIONS OF LENDING -- ALL CREDIT EXTENSIONS 42
10.1 All Credit Extensions 42
10.2 Committed Loans 43
10.3 Bid Loans 43
10.4 Acceptances 43
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TABLE OF CONTENTS
(cont.)
Page
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11. AFFIRMATIVE COVENANTS 43
11.1 Preservation of Corporate Existence, Etc 43
11.2 Taxes 43
11.3 Insurance 44
11.4 Maintenance of Properties 44
11.5 Compliance with Laws, Etc 44
11.6 Financial Statements and Other Information 44
11.7 Inspections: Discussions 46
11.8 Books and Records 46
11.9 Use of Proceeds of Loans 46
11.10 Environmental Laws 46
12. NEGATIVE COVENANTS 46
12.1 [Reserved]. 47
12.2 [Reserved]. 47
12.3 Minimum Debt Service Coverage 47
12.4 Maximum Total Fixed Asset Debt and
Total Senior Fixed Asset Debt to Consolidated
Adjusted Net Worth Ratios. 47
12.5 [Reserved]. 47
12.6 Debt in Subsidiaries 47
12.7 Restricted Payments 47
12.8 Liens; Sale of Accounts Receivable 47
12.9 Mergers, Consolidations or Asset Sales 48
12.10 Obligations as Lessee 48
12.11 Short-Term Investments, Loans, Etc 49
12.12 Transactions with Affiliates 49
12.13 Nature of Business 49
13. DEFAULT 50
13.1 Events of Default 50
13.2 Waiver of Defaults 53
14. THE AGENTS 54
14.1 Appointment 54
14.2 Delegation of Duties, Etc 54
14.3 Indemnification 54
14.4 Exculpatory Provisions 54
14.5 Agents in Their Individual Capacity 55
14.6 Knowledge of Default 55
14.7 Resignation and Removal of Administrative Agent 55
14.8 Requests to the Administrative Agent 56
14.9 Other Dealings 56
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TABLE OF CONTENTS
(cont.)
Page
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14.10 Calculations 56
14.11 Availability of Funds 57
15. NOTICES 57
15.1 Notices, Etc 57
15.2 Notices by Administrative Agent or a Bank 57
15.3 Telephonic Notices, Authority to Act 58
16. EXCESS PAYMENTS 58
17. AMENDMENTS AND WAIVERS 58
18. OTHER PROVISIONS 59
18.1 Successors and Assigns. 59
18.2 No Waiver of Rights by the Banks 61
18.3 Headings; Plurals 62
18.4 Counterparts 62
18.5 Severability 62
18.6 Integration 62
18.7 Successors and Assigns; Survival of Representations and
Warranties 62
18.8 APPLICABLE LAW; WAIVER OF TRIAL BY JURY 62
18.9 Interest 63
18.10 Confidentiality 63
18.11 Banks' Representations 64
18.12 Change in Accounting Principles 64
18.13 Reference Banks 64
18.14 Transfer of Credit Documents 64
18.15 CONSENT TO JURISDICTION 65
19. COSTS 65
19.1 Costs and Expenses 65
19.2 Taxes 66
19.3 Indemnification by the Company 66
19.4 Survival 66
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TABLE OF CONTENTS
(cont.)
SCHEDULE 1 Notice Information
SCHEDULE 2 Environmental Disclosure
SCHEDULE 3 Plans
EXHIBIT A Revolving Commitments
EXHIBIT B [Reserved]
EXHIBIT C [Reserved]
EXHIBIT D [Reserved]
EXHIBIT E Form of Bid Loan Tender
EXHIBIT F Form of Bid Loan Tender Request Notice
EXHIBIT G [Reserved]
EXHIBIT H Form of Invitation to Tender for Bid Loans
EXHIBIT I Form of Opinion of General Counsel of the Company
EXHIBIT J Form of Subordination Provisions
EXHIBIT K Form of Borrowing Request
EXHIBIT L Form of Committed Loan Note
EXHIBIT M Form of Notice of Drawing
EXHIBIT N Form of Draft
EXHIBIT O Form of Notice of Creation of Acceptance and
Grant of Acceptance Participations
EXHIBIT P Form of Bid Loan Note
EXHIBIT Q IBP, inc. Subsidiaries
-v-
NINE-MONTH CREDIT AGREEMENT
THIS NINE-MONTH CREDIT AGREEMENT (the "Agreement"), is made
and dated as of December 20, 2000, by and among IBP, inc., a
Delaware corporation (the "Company"), the BANKS signatories
hereto and any other financial institution which hereafter
becomes a party hereto (each a "Bank" and, collectively, the
"Banks"), BANK OF AMERICA, N.A. as Syndication Agent (in such
capacity, the "Syndication Agent"), and U.S. BANK NATIONAL
ASSOCIATION as Administrative Agent for the Banks (in such
capacity, the "Administrative Agent").
RECITALS
A. The Company desires (i) to obtain a commitment from
each of the Banks to make loans to the Company and to risk
participate in bankers acceptances drawn by the Company on a
revolving basis and (ii) to have an uncommitted bid facility
providing for loans.
B. The Banks are willing to extend such commitments to the
Company and to make such bid facility available on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above Recitals and
for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS
1.1 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with Generally
Accepted Accounting Principles as in effect from time to time,
including, without limitation, applicable statements, bulletins
and interpretations issued by the Financial Accounting Standards
Board and bulletins, opinions, interpretations and statements
issued by the American Institute of Certified Public Accountants
or its committees. When used herein, the term "financial
statements" shall include the notes and schedules thereto, but
need not include such notes or schedules when used in reference
to such statements of any Person as of any date other than the
end of a fiscal year of such Person.
1.2 Other Terms. The following terms used in this Agreement and
in any exhibits annexed hereto shall have the following meanings
unless the context otherwise requires.
"Absolute Rate" shall have the meaning set forth in
Section 4.4(b).
"Absolute Rate Loan" shall mean a Bid Loan bearing
interest based upon an Absolute Rate.
"Acceptance" shall mean a Draft that is eligible for
discount pursuant to paragraph 7 of Section 13 of the Federal
Reserve Act and that has been duly accepted by the Administrative
Agent pursuant to Section 3.
"Acceptance Availability Period" shall mean the period
from the Effective Date to the Maturity Date.
"Acceptance Commission" shall have the meaning set
forth in Section 3.3.
"Acceptance Obligation" shall mean the obligation of
the Company with respect to matured Acceptances as set forth in
Section 3.4.
"Acceptance Participant" shall have the meaning set
forth in Section 3.6(a).
"Acceptance Participation" shall have the meaning set
forth in Section 3.6(a).
"Accountants" shall mean a firm of independent
certified public accountants of recognized national standing
selected by the Company.
"Accumulated Funding Deficiency" shall have the meaning
assigned to that term in Section 412 of the Code.
"Administrative Agent" shall mean U.S. Bank National
Association, or any successor thereto appointed pursuant to
Section 14.7.
"Affiliate" shall mean, when used with reference to any
Person, a Person (other than a Consolidated Subsidiary) which
directly or indirectly controls, is controlled by, or is under
common control with, such other Person. For purposes of this
definition, "control" (including with correlative meanings, the
terms "controlling," "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of
the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agent" shall mean the Administrative Agent or the
Syndication Agent (collectively, the Agents").
"Aggregate Outstandings" shall mean at the time of any
determination:
(a) with respect to a Bank, the sum of (i) the aggregate unpaid
principal amount of all Committed Loans made by such Bank, (ii)
such Bank's Pro Rata Share of the sum of the aggregate unpaid
face amount of all outstanding unmatured Acceptances and the
aggregate amount of all outstanding Acceptance Obligations, and
(iii) the aggregate unpaid principal amount of all Bid Loans made
by such Bank, and
(b) with respect to all Banks, the sum of the Aggregate
Outstandings of all Banks.
"Aggregate Revolving Commitment" shall mean the sum of
the Revolving Commitments set forth in Exhibit A hereto, as the
same may be adjusted as herein provided.
"Allowable Working Capital" shall mean, as of the date
of any determination, 85% of the amount by which (i) the amount
determined pursuant to clause (a) of the definition of
Consolidated Current Assets exceeds (ii) Consolidated Current
Liabilities less any current maturities of Funded Debt and Short-
Term Borrowing of the Company and its Consolidated Subsidiaries
included therein.
2
"Applicable Base Rate" shall mean on any day the Base
Rate on such day plus the Applicable Margin.
"Applicable LIBO Rate" shall mean with respect to any
LIBOR Loan for the applicable Interest Period, the rate per annum
(rounded upward, if necessary, to the next higher 1/10,000 of 1%)
equal to the LIBO Rate plus the Applicable Margin.
"Applicable Margin" shall mean:
(a) with respect to Base Rate Loans, 0%; and
(b) with respect to LIBOR Loans and Acceptances (A) 0.85% if
Level I Status exists on the applicable day from the initial
Borrowing Date through January 31, 2001, (B) 1.05% if Level II
Status exists on the applicable day from the initial Borrowing
Date through January 31, 2001, (C) 0.60% if Level I Status exists
on the applicable day on or after February 1, 2001, (D) 0.80% if
Level II Status exists on the applicable day on or after February
1, 2001.
"Arranger" shall mean Banc of America Securities LLC.
"Bank of America" shall mean Bank of America, N.A..
"Base Rate" means for any day a fluctuating rate per
annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of
1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by U.S. Bank National
Association as its "prime rate." Such rate is a rate set by U.S.
Bank National Association based upon various factors including
U.S. Bank National Association's costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate
announced by U.S. Bank National Association shall take effect at
the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loans" shall mean all Committed Loans
bearing interest at a rate based upon the Base Rate.
"Bid Loan" shall mean a loan advance by a Bank to the
Company as part of a Bid Loan Borrowing resulting from the
auction bidding procedure described in Section 4.
"Bid Loan Borrowing" shall mean a borrowing consisting
of simultaneous Bid Loans from each of the Banks whose offer to
make a Bid Loan as part of such borrowing has been accepted by
the Company under the auction procedure described in Section 4.
"Bid Loan Facility" shall mean the uncommitted facility
granted by the Banks to the Company pursuant to Section 4 under
which the Company may request the Banks to make Bid Loans and the
Banks may make offers to make Bid Loans.
"Bid Loan Note" shall have the meaning set forth in
Section 4.8.
3
"Bid Loan Tender" shall mean the offer or offers of a
Bank pursuant to Section 4.4 to make Bid Loans in a specified
principal amount at a specified interest rate in the form of
Exhibit E hereto.
"Bid Loan Tender Request Notice" shall mean a notice
substantially in the form of Exhibit F hereto given by the
Company pursuant to Section 4.2.
"Borrowing Date" shall have the meaning set forth in
(i) Section 2.2 with respect to Committed Loans and (ii) Section
4.2 with respect to Bid Loans.
"Borrowing Request" shall have the meaning set forth in
Section 2.2.
"Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which commercial banks in
Minneapolis, Minnesota, Chicago, Illinois, or New York, New York
are authorized or required by law or other governmental action to
close.
"Change of Control" shall mean, with respect to the
Company, an event or series of events by which:
(a) consummation of the proposed merger of the Company with
Rawhide Acquisition Corporation or an Affiliate thereof or
consummation of the acquisition of the shares of the Company by
Smithfield Foods, Inc. or Tyson Foods, Inc.; or
(b) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of the Company or its
subsidiaries, or any Person acting in its capacity as trustee,
agent or other fiduciary or administrator of any such plan),
including, without limitation, Smithfield Foods, Inc. or Tyson
Foods, Inc., becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of greater than 50% of the
equity interests of the Company; or
(c) during any period of 12 consecutive months, a majority of
the members of the board of directors of the Company cease to be
composed of individuals (i) who were members of that board on the
first day of such period, (ii) whose election or nomination to
that board was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at
least a majority of that board, or (iii) whose election or
nomination to that board was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, as from time to time in effect.
"Commitment" shall mean, with respect to any Bank, such
Bank's Revolving Commitment.
4
"Committed Loan" shall have the meaning set forth in
Section 2.1.
"Committed Loan Note" shall have the meaning set forth
in Section 2.3.
"Company" shall have the meaning set forth in the
introduction to this Agreement.
"Consolidated Adjusted Net Worth" shall mean, as of the
date of any determination, the sum of the amounts set forth on
the consolidated balance sheet of the Company and its
Consolidated Subsidiaries as shareholders' equity as determined
in accordance with Generally Accepted Accounting Principles.
"Consolidated Cash Flow" shall mean, for any period and
calculated based upon any four of the five consecutive fiscal
quarters immediately preceding the date of calculation, at the
option of the Company, an amount equal to (x) the sum of (i) net
income before income taxes, (ii) non-cash expenses, and (iii)
interest expense (excluding accretion relating to zero coupon
notes and the amortization of deferred financing costs, premiums
or discounts) less (y) non-cash income, all determined for the
Company and its Consolidated Subsidiaries on a consolidated basis
in accordance with Generally Accepted Accounting Principles
consistently applied.
"Consolidated Current Assets" shall mean, as of the
date of any determination, the total of (a) all assets of the
Company and its Consolidated Subsidiaries which properly may be
classified as current assets in accordance with Generally
Accepted Accounting Principles on a consolidated basis, after
eliminating all inter-company items, provided that notes and
accounts receivable shall be included only if due and payable
within one year from the date as of which Consolidated Current
Assets are to be determined and shall be included at their face
value less reserves (including reserves for doubtful accounts)
determined to be sufficient in accordance with Generally Accepted
Accounting Principles.
"Consolidated Current Liabilities" shall mean, as of
the date of any determination, the total of Current Liabilities
of the Company and its Consolidated Subsidiaries, determined on a
consolidated basis, in accordance with Generally Accepted
Accounting Principles, after eliminating all inter-company items.
"Consolidated Debt Service" shall mean, for any period,
the sum of (a) capitalized interest, (b) interest expense
(excluding accretion relating to zero coupon notes and the
amortization of deferred financing costs, premiums or discounts)
and (c) Mandatory Principal Payments, all determined for the
Company and its Consolidated Subsidiaries on a consolidated basis
in accordance with Generally Accepted Accounting Principles
consistently applied. For purposes of calculating the ratio of
Consolidated Cash Flow to Consolidated Debt Service as of the
last day of any fiscal quarter, amounts under clauses (a) and (b)
above shall be calculated based upon the same four of the five
preceding fiscal quarters as are the bases of the calculation of
Consolidated Cash Flow as of such day.
"Consolidated Funded Debt" shall mean, as of the date
of any determination, the total of all Funded Debt of the Company
and its Consolidated Subsidiaries, determined on a consolidated
5
basis in accordance with Generally Accepted Accounting
Principles, after eliminating all inter-company items.
"Consolidated Net Income" shall mean, for any period,
the balance remaining after deducting from the gross revenues of
the Company and its Consolidated Subsidiaries all expenses and
other proper charges (including taxes on income), all determined
on a consolidated basis in accordance with Generally Accepted
Accounting Principles consistently applied.
"Consolidated Senior Funded Debt" shall mean, as of the
date of any determination, all Senior Funded Debt of the Company
and its Consolidated Subsidiaries.
"Consolidated Subordinated Funded Debt" shall mean, as
of the date of any determination, all Subordinated Funded Debt of
the Company and its Consolidated Subsidiaries.
"Consolidated Subsidiary" shall mean, as of the date of
any determination, any Subsidiary of the Company included in the
financial statements of the Company and its Subsidiaries prepared
on a consolidated basis in accordance with Generally Accepted
Accounting principles.
"Consolidated Total Assets" shall mean, as of the date
of any determination, the total of all assets which under
Generally Accepted Accounting Principles would be included on a
consolidated balance sheet of the Company and its Consolidated
Subsidiaries, after eliminating all inter-company items.
"Credit Documents" shall mean the Notes and the drafts
filled in and completed in accordance with Section 3.3.
"Credit Extensions" shall mean the Committed Loans, the
Bid Loans and the Acceptances.
"Current Liabilities" as applied to a Person, shall
mean, as of the date of any determination, all Indebtedness
(other than any such Indebtedness constituting Funded Debt) of
such Person which may properly be classified as current
liabilities in accordance with Generally Accepted Accounting
Principles.
"Default" shall mean an event, act or occurrence which,
with the giving of notice or the lapse of time (or both), would
become an Event of Default.
"Discount Charge" shall have the meaning set forth in
Section 3.3.
"Dollars" and "$" shall mean lawful currency of the
United States of America.
"Draft" shall have the meaning set forth in Section
3.3.
"Drawing" shall have the meaning set forth in Section
3.1.
"Drawing Date" shall have the meaning-set forth in
Section 3.2.
6
"Effective Date" shall mean the date specified by the
Administrative Agent in a written notice given to the Company,
the Syndication Agent and the Banks as being the first date on
which all conditions precedent set forth in Section 9 are
satisfied or waived by all Banks.
"Eligible Accounts Receivable" shall have the meaning
set forth in Section 12.8(b).
"Eligible Assignee" shall have the meaning set forth in
Section 18.1(h).
"Employee Benefit Plan" shall mean "employee benefit
plan" as that term is defined in Section 3(3) of ERISA.
"Environmental Claims" means all claims, however
asserted, by any Governmental Body or other Person alleging
potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
"Environmental Laws" means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Bodies, in each case relating
to environmental, health, safety and land use matters.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, as from time to time in effect.
"Eurodollar Business Day" shall mean a Business Day
upon which commercial banks in London, England are open for
domestic and international business.
"Event of Default" shall mean any event set forth in
Section 13.1.
"Excess Payment" shall mean any payment or prepayment
received by a Bank, whether voluntary or involuntary, through the
exercise of the right of setoff or otherwise, in respect of:
(a) any Committed Loan and Acceptance Participation in
excess of its Pro Rata Share of all payments and prepayments
on all Committed Loans of the same type (i.e. LIBOR Loans and
Base Rate Loans, in each case having the same Borrowing Date
and, with respect to LIBOR Loans, the same Interest Period)
and Acceptance Participations in Acceptances having the same
Drawing Date and the same maturity date; and
(b) any Bid Loan in excess of its ratable share of all payments
and prepayments on (i) Absolute Rate Loans having the same
Borrowing Date and the same maturity date and (ii) Money Market
Loans having the same Borrowing Date and the same Interest
7
Period, such ratable share for purposes of this clause (b) being
(x) in the case of Absolute Rate Loans, the proportion which the
outstanding unpaid principal balance of such Absolute Rate Loan
payable to such Bank at the time of its receipt of such payment
or prepayment bears to the aggregate outstanding unpaid principal
balance of all outstanding Absolute Rate Loans having the same
Borrowing Date and the same maturity date as such Absolute Rate
Loan at such time, and (y) in the case of Money Market Loans, the
proportion which the outstanding unpaid principal balance of such
Money Market Loan payable to such Bank at the time of its receipt
of such payment or prepayment bears to the aggregate outstanding
unpaid principal balance of all Money Market Loans having the
same Borrowing Date and the same Interest Period as such Money
Market Loan at such time; provided, that no payment or prepayment
received by a Bank as a result of the remission and application
of funds by the Administrative Agent pursuant to, and in
accordance with, the provisions of the penultimate paragraph of
Section 13.1 shall be an Excess Payment.
"Facility Fee" shall have the meaning set forth in
Section 7.12(a).
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" shall mean the Board of
Governors of the Federal Reserve System or any governmental
authority succeeding to its functions.
"Fee Letters" shall mean the letters referenced in
Sections 7.12(c) and (d).
"Financial Statements" shall have the meaning set forth
in Section 8.8.
"Funded Debt" shall mean, with respect to any Person
and as of the date of any determination, that portion of
Indebtedness of such Person which matures one year or more from
the date of determination thereof, or is renewable or extendable,
at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or
more from such date of determination. For purposes of
calculating Funded Debt hereunder, Indebtedness of any Person
which is governed by an agreement that provides for the automatic
renewal of the maturity of such Indebtedness subject only to
fulfillment of conditions precedent which the debtor is capable
of immediately fulfilling shall be considered as having a final
maturity of one year or more from the date of determination
thereof to the extent such renewals thereof as provided in such
agreement permit such Indebtedness to mature one year or more
from such date of determination.
"Generally Accepted Accounting Principles" shall mean
generally accepted accounting principles as in effect from time
to time in the United States, which shall include the official
interpretations thereof by the Financial Accounting Standards
Board.
"Governmental Body" shall mean any court or any
federal, state or municipal department, commission, board,
bureau, agency, public authority or instrumentality.
8
"Indebtedness", as applied to a Person and as of the
date of any determination, shall mean (a) all items (except items
of capital stock or of surplus or of deferred credits and other
liabilities combined with deferred credits for financial
reporting purposes or minority interests in Subsidiaries of such
Person) which in accordance with Generally Accepted Accounting
Principles applied in the preparation of the financial statements
of the Company and its Consolidated Subsidiaries would be
included in determining total liabilities as shown on the
liability side of a balance sheet of such Person; (b) all
indebtedness secured by any Lien on any property or asset owned
or held by such Person subject thereto, whether or not the
indebtedness secured thereby shall have been assumed; and (c) all
indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business) discounted with
recourse, or agreed (contingently or otherwise) to purchase or
repurchase or otherwise acquire, or in respect of which such
Person has otherwise become directly or indirectly liable. For
the purpose of computing the Indebtedness of any Person, there
shall be excluded any particular indebtedness which meets one or
more of the following categories:
(c) Indebtedness with respect to which sufficient cash or cash
equivalents or securities shall have been deposited in trust to
provide for the full payment, redemption or satisfaction of the
principal of, premium, if any, and interest to accrue on, such
Indebtedness to the stated maturity thereof or to the date of
prepayment thereof, as the case may be, and as a result of such
deposit such particular Indebtedness, in accordance with
Generally Accepted Accounting Principles, shall no longer be
required to be reported on a balance sheet of such Person as a
liability and such cash or cash equivalents or securities shall
not be required to be reported as an asset; or
(d) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which is payable
solely out of certain property or assets of such Person, or is
secured by a Lien on certain property or assets owned or held by
such Person, in either case without any further recourse to or
liability of such Person, to the extent such Indebtedness exceeds
(x) if such Person records such property or assets on its books,
the value for such property or assets recorded on such books or
(y) if such Person does not record such property or assets on its
books, (1) if such Indebtedness is a general obligation of the
entity which does record such property or assets on its books,
the net investment in or advances to such entity as recorded on
the books of such Person or (2) if such Indebtedness is payable
solely out of certain property or assets of such entity, the
lesser of the value for such property or assets recorded on the
books of such entity or the net investment in or advances to such
entity as recorded on the books of such Person, in each case
determined in accordance with Generally Accepted Accounting
Principles; or
(e) Indebtedness to the extent payable from accounts receivable
which have been sold, assigned or otherwise transferred to
another Person in a transaction classified as a sale of accounts
receivable in accordance with Generally Accepted Accounting
Principles.
"Interest Period" shall mean, with respect to any LIBOR
Loan or Money Market Loan, a period from the Borrowing Date with
respect to such Loan (or the date of the expiration of the then
9
current Interest Period with respect to any LIBOR Loan) to a date
1, 2 or 3 weeks or 1, 2, 3 or 6 months thereafter (but only to
the extent Dollar deposits of such duration are generally
available in the inter-bank Eurodollar market), subject in all
cases to the following:
(a) if any Interest Period with respect to a LIBOR Loan or Money
Market Loan would otherwise end on a day which is not a
Eurodollar Business Day, that Interest Period shall be extended
to the next succeeding Eurodollar Business Day, unless the result
of such extension would be to extend such Interest Period into
another calendar month, in which event such Interest Period shall
end on the immediately preceding Eurodollar Business Day;
(b) subject to the provisions of Sections 2.9 and 2.10, a
Borrowing Request selecting a particular Interest Period once
received by the Administrative Agent is irrevocable and binding
on the Company;
(c) no Interest Period for a Loan shall extend beyond the
Maturity Date;
(d) each Interest Period with respect to a LIBOR Loan or a Money
Market Loan shall be determined, and may vary in regard to the
length of period, in accordance with the customs and practices of
the international inter-bank markets;
(e) the first Interest Period for any LIBOR Loan shall commence
on the date of such Loan, and each succeeding Interest Period (if
any) for such Loan shall commence on the last day of the
preceding Interest Period; and
(f) Interest Periods for LIBOR Loans in excess of three months
or less than one month are subject to availability by all Banks,
as determined by each Bank.
"Investments" shall have the meaning set forth in
Section 12.11.
"Invitation to Tender for Bid Loans" shall mean an
invitation substantially in the form of Exhibit H hereto, given
by the Administrative Agent on behalf of the Company pursuant to
Section 4.3.
"Invoked Event of Default" shall mean an Event of
Default which has either resulted in the automatic acceleration
of the obligations of the Company hereunder pursuant to Section
13.1 or on account of which the Administrative Agent, at the
direction of the Majority Banks, has declared the Obligations of
the Company hereunder immediately due and payable pursuant to
Section 13.1 or as a result of which the Commitments have been
terminated pursuant to Section 13.1.
"Level I Status" shall exist at any date if, at such
date, the Company's senior unsecured long-term debt is rated
either A- or higher (or the equivalent) as publicly announced by
S&P or A3 or higher (or the equivalent) as publicly announced by
Moody's;
"Level II Status" shall exist at any date if, at such
date, Level I Status does not exist;
10
"LIBO Rate" shall mean for any Interest Period with
respect to any LIBOR Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the
page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Eurodollar Business Days prior to the first day
of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does
not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate
reasonably determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest
Period, or
(c) if the rates referenced in the preceding subsections (a) and
(b) are not available, the rate per annum reasonably determined
by the Administrative Agent as the rate of interest (rounded
upward to the next 1/100th of 1%) at which deposits in Dollars
for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the LIBOR Loan being made,
continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar
market at their request at approximately 11:00 a.m. (London time)
two Eurodollar Business Days prior to the first day of such
Interest Period.
"LIBOR Loans" shall mean all Committed Loans bearing
interest at a rate based upon the LIBO Rate.
"Lien" shall mean any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or
other similar encumbrance.
"Loans" shall mean, collectively and severally, the
Committed Loans and the Bid Loans made by the Banks or a single
Bank (as the context may indicate) (including any continuation of
a Loan based upon a particular interest rate alternative to a
Loan based upon the same interest rate alternative or the
conversion of a Loan based upon a particular interest rate
alternative to a Loan based upon a different interest rate
alternative). "Loan" means a single such loan made by any Bank.
"Majority Banks" shall mean (a) when no Invoked Event
of Default shall exist, Banks having Commitments greater than 50%
of the Aggregate Revolving Commitment and (b) when an Invoked
Event of Default shall exist, Banks holding Aggregate
Outstandings greater than 50% of the Aggregate Outstandings held
by all of the Banks.
11
"Mandatory Principal Payments" shall mean, for any
period and calculated based upon the preceding four fiscal
quarters, the quotient of (a) the sum of (i) all mandatory
principal payments made on indebtedness for borrowed money of the
Company or any Consolidated Subsidiary (including accretion
relating to zero coupon notes) plus (ii) the minimum lease
payments under capital leases with respect to which the Company
or any Consolidated Subsidiary is lessee less the portion of such
minimum lease payments which would be expensed as interest,
determined on a consolidated basis for the Company and its
Consolidated Subsidiaries in accordance with Generally Accepted
Accounting Principles consistently applied, divided by (b) the
remainder of 1 minus the Tax Rate.
"Material Subsidiary" shall mean any Subsidiary which
owns 5% or more of the Consolidated Total Assets.
"Maturity Date" shall mean September 20, 2001.
"Money Market Loan" shall mean a Bid Loan, the interest
rate on which is determined on the basis of the LIBO Rate and the
Money Market Margin.
"Money Market Margin" shall have the meaning assigned
to such term in Section 4.4(b).
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
or any successor thereto.
"Note" shall mean a Bid Loan Note or a Committed Loan
Note (collectively the "Notes ").
"Notice of Drawing" shall have the meaning assigned to
such term in Section 3.2.
"Officer's Certificate" shall mean a certificate
executed on behalf of the Company by the President, any Vice-
President, the Treasurer, any Assistant Treasurer, the Controller
or any Assistant Controller of the Company.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation created by Section 4002(a) of ERISA, or any
Governmental Body succeeding to the functions thereof.
"Permitted Liens" shall mean:
(a) Liens given by the Company or a Consolidated Subsidiary to
secure the payment of the purchase price of fixed assets (all
such Liens being called "Purchase Money Liens") acquired,
constructed or improved by the Company or such Consolidated
Subsidiary after the Effective Date, provided that:
(i) such Purchase Money Liens shall have been created
contemporaneously with or within six months after the later of
the acquisition, construction, improvement or placing in service
of the fixed assets subject thereto;
12
(ii) no such Purchase Money Liens shall extend to or cover any
other Property of the Company or such Consolidated Subsidiary, as
the case may be, and
(iii) the aggregate amount of the Indebtedness secured by any
such Purchase Money Liens in respect of any such Property
(whether or not the Company or such Consolidated Subsidiary
assumes or otherwise becomes liable for such Indebtedness) shall
not exceed 100% of the lesser of the cost or fair market value of
such Property at the time of acquisition, construction or
improvement thereof;
(b) Liens in respect of Property acquired by the Company or a
Consolidated Subsidiary which were created prior to, and are in
existence on the date of, the acquisition of such Property
(whether or not the Company or such Consolidated Subsidiary
assumes or otherwise becomes liable for any Indebtedness secured
thereby) and, in the case of any Person which becomes a
Consolidated Subsidiary after the date of this Agreement, Liens
on its Property or on the outstanding shares of its capital stock
created prior to, and existing on, the date such Person becomes a
Consolidated Subsidiary, provided that no such Lien shall extend
to or cover any other Property of the Company or such
Consolidated Subsidiary, as the case may be;
(c) Liens and priority claims incidental to the conduct of
business or the ownership of Property and assets (including
warehousemen's, attorneys' and statutory landlords' liens) and
Liens, pledges or deposits in connection with workmen's
compensation, unemployment insurance, old age benefit or social
security obligations, taxes and duties, governmental charges or
levies, assessments, performance bonds, statutory obligations or
other similar charges, Liens of carriers, contractors, mechanics,
repairmen and materialmen, good faith deposits in connection with
tenders, bids, contracts or leases to which the Company or any
Consolidated Subsidiary is a party or other deposits required to
be made in the ordinary course of business and not in connection
with the borrowing of money; provided in each case the obligation
secured is not overdue or, if overdue, is being contested in good
faith by appropriate proceedings and subject to appropriate
reserves;
(d) The pledge of assets for the purpose of securing any appeal
or stay or discharge in the course of any legal proceeding and
Liens on or resulting from judgments or awards in respect of
which the Company or any of its Consolidated Subsidiaries shall
at any time in good faith be prosecuting an appeal or proceeding
for review, provided, that the aggregate book value of assets so
pledged or subject to such Lien does not exceed $1,000,000 at any
one time;
(e) Easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount, and which do not
in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the
business of the Company and its Subsidiaries taken as a whole;
13
(f) Liens created pursuant to applications or reimbursement
agreements pertaining to commercial letters of credit which
encumber only the goods, or documents of title covering the
goods, which are sold or shipped in the transaction for which
such letters of credit were issued;
(g) Liens securing Indebtedness of Consolidated Subsidiaries if
all such Indebtedness is owned by the Company or another
Consolidated Subsidiary;
(h) Liens incurred by the Company after the date of this
Agreement in connection with industrial revenue bond financing
for facilities (including pollution control equipment) to be used
by the Company or any Consolidated Subsidiary;
(i) Liens on Property or assets of the Company or a Consolidated
Subsidiary existing as of the date of this Agreement and securing
Indebtedness of the Company or such Consolidated Subsidiary, as
the case may be;
(j) Liens relating to accounts receivable of the Company or any
of its Consolidated Subsidiaries which have been sold, assigned
or otherwise transferred to another Person in a transaction
classified as a sale of accounts receivable in accordance with
Generally Accepted Accounting Principles and in accordance with
the limitation set forth in Section 12.8(b) hereof; and
(k) In addition to those Liens permitted by the foregoing
clauses (a) through other Liens on Property of the Company or a
Consolidated Subsidiary securing Indebtedness of the Company or
such Consolidated Subsidiary in an aggregate amount at any time
outstanding not exceeding 3-1/2% of Consolidated Adjusted Net
Worth as set forth in the most recent financial statements
delivered to the Banks pursuant to Section 11.6.
"Person" shall mean a corporation, an association, a
partnership, an organization, a business, a joint venture, a
trust, an individual, a government or a political subdivision
thereof or a governmental agency.
"Plan" shall mean a pension plan, as defined in Section
3(2) of ERISA, subject to Title IV of ERISA, which the Company or
any Related Person to the Company or any Subsidiary sponsors or
maintains, or to which the Company or any Related Person to the
Company or Subsidiary makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan, as
described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding five plan years; but
excluding in all cases any multiemployer plan within the meaning
of Section 4001(a)(3) of ERISA.
"Plan Administrator" shall have the meaning assigned to
the term "administrator" in Section 3(16)(A) of ERISA.
"Plan Sponsor" shall have the meaning assigned to the
term "plan sponsor" in Section 3(16)(B) of ERISA.
14
"Pro Rata Share" shall mean with respect to a Bank and
at the time of any determination, (a) when no Invoked Event of
Default shall exist, the proportion, expressed as a percentage,
which its Revolving Commitment bears to the Aggregate Revolving
Commitment, and (b) when an Invoked Event of Default shall exist,
the proportion, expressed as a percentage, which its Aggregate
Outstandings bears to the Aggregate Outstandings held by all of
the Banks.
"Prohibited Transaction" shall have the respective
meanings assigned to that term in Section 4975 of the Code and in
Section 406 of ERISA.
"Property" shall mean all types of real, personal,
tangible, intangible or mixed property.
"Rate Notice" shall have the meaning assigned to the
term in Section 2.9.
"Reference Banks" shall mean Bank of America, N.A. and
U.S. Bank National Association, or any successor Reference Banks
pursuant to the provisions of Sections 2.9 or 18.13 of this
Agreement.
"Related Person" shall mean, with respect to any
Person, any trade or business (whether or not incorporated)
which, together with such Person, is under common control as
described in Section 414(c) of the Code.
"Reportable Event" shall mean a "reportable event"
described in Section 4043(b) of ERISA as to which the 30 day
notice period has not been waived.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, whether in cash or in property
(other than dividends paid in shares of the capital stock of the
Company), on account of shares of any class of stock of the
Company now or hereafter outstanding or (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, whether in cash or in
property (other than in shares of the capital stock of the
Company), of any shares of any class of stock of the Company, or
of any warrants, options or other rights to acquire any such
shares of stock, now or hereafter outstanding.
"Revolving Commitment" shall mean in respect of any
Bank, the amount set forth next to the name of such Bank in
Exhibit A as the same may be adjusted as herein provided.
"Revolving Credit Availability Period" means the period
from the Effective Date to the earlier of (a) the day on which
the Revolving Commitments are terminated in accordance with the
provisions of this Agreement and (b) the Maturity Date.
"S&P" shall mean Standard & Poor's Ratings Group, a
division of McGraw Hill Corporation or any successor thereto.
"Senior Funded Debt" shall mean, with respect to any
Person as of any date of determination, all Funded Debt of such
Person which is not Subordinated Funded Debt.
15
"Short-Term Borrowing" as applied to a Person, shall
mean all Indebtedness of such Person in respect of borrowed money
maturing on demand or within one year from the date of the
determination thereof, excluding any such Indebtedness that shall
also constitute Funded Debt.
"Short-Term Investment" shall have the meaning set
forth in Section 12.11.
"Subordinated Funded Debt" shall mean, as of the date
of any determination, Funded Debt of the Company which is
subordinated to the obligations of the Company under this
Agreement at least to the extent of, or on terms substantially
similar to the terms set forth in, Exhibit J hereto.
"Subordinated Short-Term Borrowing" shall mean, as of
the date of any determination, Short-Term Borrowing of the
Company which is subordinated to the obligations of the Company
under this Agreement at least to the extent of, or on terms
substantially similar to the terms set forth in, Exhibit J
hereto.
"Subsidiary" shall mean any corporation, association,
partnership, joint venture or other business entity of which the
Company and/or any subsidiary of the Company either (a) in
respect of a corporation, owns more than 50% of the outstanding
stock having ordinary voting power to elect a majority of the
board of directors or similar managing body, irrespective of
whether or not at the time the stock of any class or classes
shall or might have voting power by reason of the happening of
any contingency, or (b) in respect of an association,
partnership, joint venture or other business entity, is the sole
general partner or is entitled to share in more than 50% of the
profits, however determined.
"Tax Rate" shall mean, for any period, the maximum
statutory federal rate, expressed as a decimal (rounded, if
necessary, to the nearest one one-thousandth), of income tax
applicable to corporations for such period under Section 11 of
the Code.
"Total Assets" shall mean, with respect to any Person
and as of the date of any determination, the total of all assets
which under Generally Accepted Accounting Principles would be
included on a consolidated balance sheet of such Person.
"Total Debt" shall mean, as of any date of
determination, the sum of (a) Consolidated Funded Debt, (b)
current maturities of Consolidated Funded Debt, (c) the amount by
which the amount payable upon then outstanding zero coupon notes
of the Company and its Consolidated Subsidiaries upon
acceleration of maturity due to default exceeds the amount
included under clause (a) and clause (b) of this definition
related to such notes and (d) Short-Term Borrowing of the Company
and its Consolidated Subsidiaries, all determined for the Company
and its Consolidated Subsidiaries on a consolidated basis in
accordance with Generally Accepted Accounting Principles after
eliminating all inter-company items.
"Total Fixed Asset Debt" shall mean, as of the date of
any determination, Total Debt less Allowable Working Capital.
"Total Senior Debt" shall mean, as of the date of any
determination, the sum of (a) Consolidated Senior Funded Debt,
(b) current maturities of Consolidated Senior Funded Debt, (c)
16
the amount by which the amount payable upon the then outstanding
zero coupon senior notes of the Company and its Consolidated
Subsidiaries upon acceleration of maturity due to default exceeds
the amount included under clause (a) and clause (b) of this
definition related to such notes and (d) Short-Term Borrowing of
the Company and its Consolidated Subsidiaries (but excluding any
Subordinated Short-Term Borrowing of the Company and its
Consolidated Subsidiaries), all determined for the Company and
its Consolidated Subsidiaries on a consolidated basis in
accordance with Generally Accepted Accounting Principles after
eliminating all inter-company items.
"Total Senior Fixed Asset Debt" shall mean, as of the
date of any determination, Total Senior Debt less Allowable
Working Capital.
2. THE COMMITTED LOAN FACILITY
2.1 The Committed Loans.
(a) Subject to the terms and conditions hereof, each Bank
severally agrees to make advances (each a "Committed Loan" and,
collectively, the "Committed Loans") to the Company during the
Revolving Credit Availability Period; provided, however, that at
any time during such period, (i) Aggregate Outstandings of all
Banks shall not exceed the Aggregate Revolving Commitment, and
(ii) the sum of (A) each Bank's Pro Rata Share multiplied by the
sum of the aggregate unpaid face amount of all unmatured
Acceptances and the aggregate amount of all outstanding
Acceptance Obligations plus (B) the aggregate unpaid principal
amount of such Bank's Committed Loans outstanding hereunder shall
not exceed the amount of such Bank's Revolving Commitment which,
for purposes of this clause (ii), shall be reduced by an amount
equal to the product obtained by multiplying such Bank's Pro Rata
Share by the aggregate unpaid principal amount of all outstanding
Bid Loans. The Committed Loans may be maintained, at the
election of the Company made from time to time as permitted
herein, as Base Rate Loans or LIBOR Loans or any combination
thereof permitted hereunder.
(b) During the Revolving Credit Availability Period, the Company
may borrow, prepay and reborrow Committed Loans in accordance
with the provisions hereof.
(c) The principal amount of each Bank's Committed Loan made on a
Borrowing Date shall be in an amount equal to its Pro Rata Share
of all such Committed Loans made on such date. The failure of
any Bank to honor its Commitments hereunder at any time shall not
increase or otherwise affect the Commitment of any other Bank.
2.2 Borrowing Procedure.
(a) The Company shall give to the Administrative Agent prior
notice (by telex or telecopier, or by telephone (confirmed in
writing promptly thereafter)) of its intention to borrow under
this Section 2, by delivery to the Administrative Agent of a
borrowing request substantially in the form of Exhibit K hereto
(each, a "Borrowing Request") specifying: (i) the proposed date
of such borrowing (each, a "Borrowing Date"), which date shall be
a Business Day in the case of Base Rate Loans or a Eurodollar
Business Day in the case of LIBOR Loans, (ii) the aggregate
principal amount of the Committed Loans to be made on such date,
17
which shall, in the case of LIBOR Loans, be in the minimum
aggregate amount of $5,000,000 and multiples of $1,000,000 in
excess thereof and, in the case of Base Rate Loans, be in the
minimum aggregate amount of $1,000,000 and multiples thereof,
(iii) whether such Committed Loans are to be funded as LIBOR
Loans or Base Rate Loans, and (iv) in the case of LIBOR Loans,
the initial Interest Period therefor.
(b) A Borrowing Request shall be given by (i) 12:00 noon
(Minneapolis time) not less than three Eurodollar Business Days
prior to the proposed Borrowing Date if such Loan is to be a
LIBOR Loan and (ii) 10:30 a.m. (Minneapolis time) on the
proposed Borrowing Date if such Loan is to be a Base Rate Loan;
provided, however, that with respect to a LIBOR Loan borrowing on
the Effective Date, the Borrowing Request shall be given by 12:00
noon (Minneapolis time) not less than two Eurodollar Business
Days prior to the Effective Date. Subject to Sections 2.9 and
2.10, upon receipt by the Administrative Agent, a Borrowing
Request shall be irrevocable.
(c) On the date of receipt of such Borrowing Request by the
Administrative Agent, the Administrative Agent shall give prompt
notice by telephone or telecopy to each Bank of the contents
thereof. Each Bank shall make immediately available funds equal
to the amount of its Committed Loan available to the
Administrative Agent for the account of the Company at U.S. Bank
National Association, or at such other office designated by the
Administrative Agent from time to time, not later than 12:00 noon
(Minneapolis time), on each Borrowing Date. Unless the
Administrative Agent is aware that the conditions precedent to
the making of such Committed Loans set forth in Sections 9 and 10
have not been satisfied (in which event the Administrative Agent
shall promptly notify the Company and all the Banks), the
Administrative Agent shall make available to the Company not
later than 12:30 p.m. (Minneapolis time) on such Borrowing Date,
the amount of funds so received in the type of funds received by
it (or, at the option of the Administrative Agent, in immediately
available funds). On or before the close of business
(Minneapolis time) on the Business Day that the Administrative
Agent determines the LIBO Rate for any Committed Loans in
accordance with the respective definitions thereof, the
Administrative Agent shall use best efforts to notify each Bank
of such LIBO Rate.
2.3 The Committed Loan Notes. On or before the initial
Borrowing Date hereunder, the Company shall duly issue and
deliver to the Administrative Agent for delivery to the Banks a
series of notes substantially in the form of Exhibit L hereto
(each, a "Committed Loan Note" and, collectively, the "Committed
Loan Notes"), with appropriate insertions therein, one payable to
the order of each Bank, in the principal amount of the Revolving
Commitment of such Bank. Each Bank is hereby authorized by the
Company to enter on the schedule attached to its Committed Loan
Note or otherwise in its records, the amount of each Committed
Loan made by it hereunder, each payment thereon and the other
information provided for on such schedule; provided, however,
that the failure to make any such entry or any error in making
such entry with respect to any Committed Loan or payment shall
not limit or otherwise affect the obligation of the Company
hereunder or under any such Committed Loan Note, and, in all
events, the principal amount owing by the Company in respect of
each Bank's Committed Loan Note shall be the aggregate amount of
all Committed Loans made by such Bank less all payments of
18
principal thereon made by the Company. If such schedule shall be
fully completed, such Bank may attach an additional schedule or
schedules thereto. Each Committed Loan Note shall evidence that
the principal amount of each Committed Loan shall be due and
payable no later than the Maturity Date or upon acceleration
under Section 13.1. Each Bank's Committed Loan Note shall bear
interest as provided in Section 2.5.
2.4 Payment of Principal of Committed Loans; Prepayments.
(a) The outstanding principal amount of each Committed Loan
shall be payable on the Maturity Date.
(b) Upon at least three Eurodollar Business Days' (with respect
to LIBOR Loans) or one Business Day's (with respect to Base Rate
Loans) irrevocable prior written notice to the Administrative
Agent (which shall advise each Bank thereof as soon as
practicable thereafter) specifying the amount and the date of
prepayment, the Company shall have the right to prepay the
Committed Loans, in whole at any time or in part from time to
time, in aggregate principal amounts equal to at least $5,000,000
($1,000,000 in the case of Base Rate Loans), or in integral
multiples thereof, subject to any required payments pursuant to
Section 7.3. Each prepayment under this Section 2.4 shall be
made to the Administrative Agent and, promptly upon receipt
thereof, the Administrative Agent shall remit to each Bank its
Pro Rata Share thereof. Optional payments on account of the
Committed Loan Notes during the Revolving Credit Availability
Period shall not of themselves reduce the sum of the respective
Revolving Commitments of the Banks at the time in effect (or any
Bank's Revolving Commitment), the effect thereof being solely to
increase the amount available to be reborrowed.
2.5 Interest on Committed Loans. Except as provided in Section
7.2, the Committed Loans shall bear interest on the unpaid
principal amount thereof as follows: (i) for Base Rate Loans, at
a fluctuating rate per annum equal to the Applicable Base Rate,
and (ii) for LIBOR Loans, at a rate per annum equal to the
Applicable LIBO Rate for the applicable Interest Period.
2.6 Conversions and Refunding of Committed Loans. Subject to
the terms and conditions of this Agreement, the Company shall
also have the option at any time to convert any Committed Loans
or part thereof (in integral multiples of $1,000,000 in the
aggregate) into a Base Rate Loan, LIBOR Loan, or refund any LIBOR
Loan or part thereof (in integral multiples of $1,000,000 in the
aggregate); provided, however, that (i) any LIBOR Loans converted
or refunded before the expiration of their applicable Interest
Period shall be accompanied by accrued interest on the amount
being converted or refunded and subject to any payment required
pursuant to Section 7.3, and (ii) no Base Rate Loan may be
converted into a LIBOR Loan, if an Event of Default has occurred
and is continuing on the proposed date of conversion. The
Company shall notify the Administrative Agent (which shall advise
each Bank thereof as soon as practicable thereafter) in writing
of each proposed conversion or refunding, the proposed date
therefor (which shall be a Business Day in the case of a Base
Rate Loan and a Eurodollar Business Day in the case of a LIBOR
Loan) and the duration of the Interest Period therefor, in the
case of LIBOR Loans, pursuant to a duly executed Borrowing
Request, in accordance with the notice provisions of Section 2.2.
Subject to Sections 2.9 and 2.10, any notice given by the Company
under this Section 2.6 shall be irrevocable. Subject to the
terms and conditions of this Agreement, if the Company shall fail
19
to notify the Administrative Agent in the manner provided in this
Section 2.6 of a conversion or refunding of a LIBOR Loan prior to
the last day of the then applicable Interest Period and has not
repaid it and has the right to convert or refund it, such
Committed Loan shall automatically be converted on such day to a
Base Rate Loan of equal principal amount.
2.7 Interest Payments on Committed Loans. Except as provided in
Section 7.2, interest on the Base Rate Loans shall be payable
quarterly, in arrears, on the first Business Day of each
February, May and August, commencing in February, 2001, and on
the date such Base Rate Loans are paid in full and not subject to
a further reborrowing under Section 2.1 or 2.2. Except as
provided in Section 7.2, interest on the LIBOR Loans shall be
payable in arrears on the last day of the applicable Interest
Period or such other date as such Committed Loans are paid in
full or converted pursuant to Section 2.6; provided, however,
that accrued interest on LIBOR Loans with an Interest Period of
approximately six months shall also be payable at the end of the
third month of such Interest Period. All interest payable
hereunder on Committed Loans shall be computed on the basis of a
year of 360 days and actual days elapsed, except for interest at
the Base Rate, which shall be computed on the basis of a year of
365 or 366 days, as applicable, and actual days elapsed.
2.8 Number of Base Rate Loans and LIBOR Loans Outstanding. The
total number of Base Rate Loans and LIBOR Loans outstanding to
any Bank at any time shall not exceed 10.
2.9 Inability to Determine Rate. (a) If any Reference Bank
determines (which determination shall be made in good faith and
shall be conclusive and binding upon the Company in the absence
of manifest error) that (1) by reason of circumstances then
affecting the inter-bank Eurodollar markets, adequate and
reasonable means do not or will not exist for ascertaining the
LIBO Rate applicable to any LIBOR Loan, or (2) Dollar deposits in
the relevant amounts and for the relevant Interest Period of a
LIBOR Loan are not available to such Reference Bank in the inter-
bank Eurodollar markets, then such Reference Bank shall forthwith
give notice (a "Rate Notice") of such determination to the
Company and the Administrative Agent (who shall notify the
Banks), whereupon, until such Reference Bank shall notify the
Company and the Administrative Agent (who shall notify the Banks)
that the circumstances giving rise to such suspension no longer
exist, (x) the obligations of each Bank to make LIBOR Loans shall
be suspended and (y) the Company shall repay in full, without
premium or penalty, the then outstanding principal amount of the
LIBOR Loans affected, together with accrued interest thereon, on
the last day of the then current Interest Period for such LIBOR
Loans. Unless the Company notifies the Administrative Agent of a
conversion in accordance with Section 2.6 after receiving a Rate
Notice from one of the Reference Banks pursuant to this
subsection, the Company shall, concurrently with repaying the
LIBOR Loans pursuant to this subsection, be deemed to have
requested and received Base Rate Loans in an equal principal
amount from each Bank.
(b) Notwithstanding the foregoing, the Company may (i) prior to
the repayment of outstanding LIBOR Loans pursuant to Section
2.9(a), within two (2) Business Days after receipt of a Rate
Notice from one of the Reference Banks, and (ii) at any time
after the suspension of Banks' obligations to make LIBOR Loans
and the repayment by the Company of outstanding LIBOR Loans in
accordance with the provisions of Section 2.9(a), with the
20
consent of the Majority Banks, designate one or more Banks to
replace the Reference Bank(s) which delivered such a Rate Notice.
Upon acceptance of such designation as a replacement Reference
Bank, such replacement Reference Bank or Reference Banks shall
promptly notify the Administrative Agent of such acceptance at
which time such replacement Reference Bank or Reference Banks
shall for all purposes be deemed a Reference Bank hereunder, and
at which time such Reference Bank(s) shall notify the
Administrative Agent and the Company as to whether it will (x)
continue the Rate Notice delivered by its predecessor, in which
case the provisions of Section 2.9(a) regarding the suspension of
Banks' obligations to make LIBOR Loans and the repayment of
outstanding LIBOR Loans shall be operative, or (y) withdraw the
Rate Notice delivered by its predecessor, in which case, no such
suspension or repayment shall then occur, or continue to be
operative, as the case may be.
2.10 Illegality: Termination of Commitment. Notwithstanding any
other provisions herein, if, after the date of this Agreement,
the introduction of or any change in any applicable law, rule or
regulation or in the interpretation or administration thereof by
any Governmental Body charged with the interpretation or
administration thereof or compliance by any Bank with any request
or directive (whether or not having the force of law but, if it
does not have the force of law, with respect to which similarly
situated banks generally comply) of any such Governmental Body
shall make it unlawful or impracticable, in the reasonable
judgment of any Bank, for such Bank to make, maintain or fund
LIBOR Loans as contemplated by this Agreement, (1) the
obligations of such Bank hereunder to make LIBOR Loans shall
forthwith be cancelled, (2) Committed Loans which would otherwise
be made by such Bank as LIBOR Loans shall be made instead as Base
Rate Loans, and (3) the Company shall pay in full the then
outstanding principal amount of all LIBOR Loans made by such Bank
together with accrued interest, either (x) on the last day of the
then current Interest Period if such Bank may lawfully continue
to fund and maintain such LIBOR Loans to such day or (y)
immediately if such Bank may not lawfully continue to fund and
maintain such LIBOR Loans to such day. Unless the Company
notifies such Bank and the Administrative Agent to the contrary
within two (2) Business Days after receiving a notice from such
Bank pursuant to this subsection, the Company shall, concurrently
with repaying the LIBOR Loans pursuant to this subsection, be
deemed to have requested and received Base Rate Loans in an equal
principal amount from such Bank. If circumstances subsequently
change so that such Bank is not further affected, such Bank shall
so notify the Company of such change and such Bank's obligation
to make and continue LIBOR Loans shall be reinstated.
2.11 Application of Prepayments. All amounts paid by the Company
in prepayment of Committed Loans pursuant to Sections 2.4(b) and
7.4 prior to the occurrence of an Event of Default hereunder
shall be applied, subject to Section 2.4(b) or 7.4, as the case
may be, as directed by the Company in its related notice of
prepayment and shall be accompanied by, in the case of any
resultant prepayment of Committed Loans being maintained as LIBOR
Loans, all amounts payable with respect thereto pursuant to
Section 7.3.
21
3. THE ACCEPTANCE FACILITY
3.1 Acceptance Commitment.
(a) Upon the terms and subject to the conditions hereof, the
Administrative Agent agrees, at any time and from time to time
during the Acceptance Availability Period, to create Acceptances
for the Company maturing on a Business Day not less than 30 days
or more than 90 days after the creation thereof and in any event
not later than the last day of the Acceptance Availability
Period; provided, however, that at any time during the Revolving
Credit Availability Period, (i) Aggregate Outstandings of all
Banks shall not exceed the Aggregate Revolving Commitment, and
(ii) the sum of (A) each Bank's Pro Rata Share multiplied by the
sum of the aggregate unpaid face amount of all unmatured
Acceptances and the aggregate amount of all outstanding
Acceptance Obligations plus (B) the aggregate unpaid principal
amount of such Bank's Committed Loans outstanding hereunder shall
not exceed the amount of such Bank's Revolving Commitment which,
for purposes of this clause (B), shall be reduced by an amount
equal to the product obtained by multiplying such Bank's Pro Rata
Share by the aggregate unpaid principal amount of all outstanding
Bid Loans.
(b) During the Acceptance Availability Period, the Company may
request Acceptances in accordance with the provisions hereof.
(c) Each Acceptance shall be created by the Administrative
Agent's acceptance of Drafts drawn on it in accordance with the
terms of this Agreement. Each drawing of one or more Drafts on
any Drawing Date (a "Drawing") shall be in an aggregate face
amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof.
3.2 Notice of Drawing. Whenever the Company desires to make a
Drawing, it shall prior to 10:00 a.m. (Minneapolis time) on the
proposed date of such requested Drawing (each a "Drawing Date")
give the Administrative Agent notice by telephone or telecopier
of the requested Drawing consisting of the information and
certification set forth substantially in the form of notice of
drawing attached hereto as Exhibit M (a "Notice of Drawing").
Such notice shall be irrevocable and the Company shall promptly
confirm any such telephonic notice by transmitting a Notice of
Drawing to the Administrative Agent by telecopier. Upon the
Administrative Agent's request, the Company shall provide such
information concerning the underlying transaction as necessary to
establish to the satisfaction of the Administrative Agent that
the document created by the acceptance of such Draft or Drafts
will qualify as an Acceptance as defined hereunder.
3.3 Preparation of Drafts and Creation of Acceptances. To
enable the Administrative Agent to create Acceptances in the
manner specified in this Section 3.3, the Company hereby
irrevocably designates and appoints the Administrative Agent,
which may from time to time appoint any other bank or financial
institution, as the Company's true and lawful attorney-in-fact,
to execute drafts, in the form of Exhibit N hereto or such other
form as may be acceptable to the Company and the Administrative
Agent (a "Draft"), in the name and on behalf of the Company as
drawer. The Administrative Agent shall promptly notify the
Company of each such designee appointed by the Administrative
22
Agent to execute drafts under the foregoing power of attorney.
Such power of attorney may only be exercised by the
Administrative Agent or its designee following the Administrative
Agent's receipt of a Notice of Drawing and in strict accordance
with the information contained therein.
The Company hereby authorizes the Administrative Agent
or its designee to complete a Draft in respect of a requested
Drawing in accordance with such information, which Draft shall be
dated the Drawing Date and shall mature on the date specified in
the relevant Notice of Drawing provided such date is a date
permitted under Section 3.1. Not later than 12:00 noon
(Minneapolis time) on the proposed Drawing Date, the
Administrative Agent shall, subject to the satisfaction of the
applicable conditions set forth in Sections 9 and 10, duly accept
and discount such Draft at a price equal to the face amount
thereof less the sum of (i) the bankers acceptance discount rate
for such maturity then being generally quoted by the
Administrative Agent (unless the Administrative Agent quoted a
bankers acceptance discount rate in connection with the Company's
giving of the relevant Notice of Drawing which quoted rate was
accepted by the Company not more than 15 minutes prior to its
giving of such Notice, in which case such quoted rate shall
control) (the "Discount Charge") and (ii) a per annum acceptance
commission (the "Acceptance Commission") equal to the Applicable
Margin, each of the Discount Charge and the Acceptance Commission
being calculated on the face amount of each Draft so accepted for
the actual number of days in the period from the date thereof to
the date of its maturity and on the basis of a year of 360 days.
Not later than 1:00 p.m. (Minneapolis time) on the Drawing Date,
the Administrative Agent shall make the amount of the proceeds of
the discount of each Draft so accepted and discounted available
to the Company. On the Drawing Date of such Acceptance, the
Administrative Agent shall remit to each Bank such Bank's Pro
Rata Share of the Acceptance Commission applicable to such
Acceptance.
Notwithstanding the foregoing, the Administrative Agent
shall not be obligated to create or discount Acceptances
hereunder if such Acceptance would not be eligible for discount
at a Federal Reserve Bank under applicable rules or regulations,
would not meet the requirements of paragraph 7 of Section 13 of
the Federal Reserve Act, as amended, or any liability of the
Administrative Agent that would arise from the creation of such
Acceptance would constitute a deposit for which the
Administrative Agent would be required to maintain reserves under
Regulation D of the Federal Reserve Board as from time to time in
effect. The Company acknowledges that the Administrative Agent's
decision to accept and discount any Draft offered for acceptance
and discount hereunder will be made in reliance upon the truth of
the representations made by the Company in the related Notice of
Drawing establishing the eligibility for discount of any such
Acceptance. The Company will indemnify and save the
Administrative Agent and each Acceptance Participant harmless
from any loss or liability incurred by the Administrative Agent
and such Acceptance Participants if any Acceptances are
determined to be ineligible for discount or subject to reserves
by reason of any misrepresentation made by the Company.
3.4 Acceptance Obligation of the Company. The Company hereby
unconditionally agrees to pay to the Administrative Agent in
immediately available funds the face amount of each Draft as to
which an Acceptance was created by the Administrative Agent on
the maturity date thereof, or on such earlier date as may be
required pursuant to other provisions of this Agreement.
23
3.5 Prepayment. Acceptances may not be prepaid.
3.6 Participations in Acceptances.
(a) Grant and Acceptance of Participations in Acceptances. Upon
the terms and subject to the conditions of this Agreement and
effective on the applicable Drawing Date, the Administrative
Agent hereby grants to each Bank (in such capacity, an
"Acceptance Participant"), and each Acceptance Participant hereby
accepts from the Administrative Agent, an undivided participation
in and to each Acceptance and the Administrative Agent's
obligations thereunder (an "Acceptance Participation") and, to
the extent hereinafter provided, the Company's Acceptance
Obligations with respect to each such Acceptance, equal to each
Acceptance Participant's Pro Rata Share of the face amount of
each such Acceptance. The Administrative Agent shall give each
Acceptance Participant prompt notice of the creation of each
Acceptance in the form of a notice of creation of Acceptance and
grant of an Acceptance Participation substantially in the form of
Exhibit O hereto. Such notice shall specify the face amount of
such Acceptance, the maturity date thereof, the face amount of
each Acceptance Participant's undivided interest therein and the
amount of the Acceptance Commission applicable to such
Acceptance.
(b) Participation Interest of Acceptance Participants. The
participation interest of each Acceptance Participant in each
Acceptance shall include its Pro Rata Share of the Acceptance
Commission applicable to such Acceptance on the Drawing Date of
such Acceptance.
(c) Failure of Company to Pay an Acceptance, Rights and
Obligations of the Administrative Agent and the Acceptance
Participants. The Administrative Agent shall, on the maturity
date of the relevant Acceptance, give each Bank notice (by telex
or telecopier, or by telephone (confirmed in writing promptly
thereafter)) of each failure by the Company to pay the
Administrative Agent the related Acceptance Obligation on such
date. Upon receipt of such notice from the Administrative Agent,
each Bank shall, forthwith, make a Base Rate Loan to the Company
in the amount of such Bank's Pro Rata Share of the amount of the
unpaid Acceptance Obligation and make the proceeds of such Base
Rate Loan available to the Administrative Agent before 2:00 p.m.
(Minneapolis time) on the day such notice was given (where the
relevant notice was given at or prior to 12:00 noon (Minneapolis
time) on any Business Day), and before 10:00 a.m. (Minneapolis
time) on the next succeeding day that such Bank and the
Administrative Agent are open at their respective addresses
specified in this Agreement for the purpose of conducting a
commercial banking business (where the relevant notice was given
after 12:00 noon (Minneapolis time) on any Business Day). If any
portion of any such amount paid to the Administrative Agent
should be recovered by or on behalf of the Company from the
Administrative Agent in bankruptcy, by assignment for the benefit
of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all the Banks in the manner
contemplated by Section 16. Each Bank's obligation to make the
Base Rate Loans referred to in this paragraph shall be absolute
and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Bank may have
24
against the Administrative Agent, the Company or anyone else for
any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Company; (iv) any
breach of this Agreement by the Company or any other Bank; (v)
any termination or reduction of the Commitments; or (vi) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If any Default or Event of
Default shall have occurred and be continuing at the time any
Base Rate Loan is made pursuant to this Section 3.6(c), then,
notwithstanding Section 2.4(a), such Base Rate Loan shall be
immediately due and payable.
4. THE BID LOAN FACILITY
4.1 The Bid Loan Facility. The Banks agree to make available to
the Company from February 1, 2001 through the end of the
Revolving Credit Availability Period the Bid Loan Facility,
pursuant to which the Company may, as provided in this Section 4,
request the Banks, through the Administrative Agent, to make
offers to make Bid Loans to the Company, and the Banks may, at
their sole election, make offers to make Bid Loans to the
Company; provided, however, that at any time the Aggregate
Outstandings of all Banks shall not exceed the Aggregate
Revolving Commitment. The Banks may, but shall have no
obligation to, make any such offers and the Company may, but
shall have no obligation to, accept any such offers. Bid Loans
may be Money Market Loans or Absolute Rate Loans (each, a "type"
of Bid Loan).
4.2 Bid Loan Tender Request Notice. When the Company wishes to
request offers to make Bid Loans, it shall transmit to the
Administrative Agent a Bid Loan Tender Request Notice so as to be
received no later than 10:00 a.m. (Minneapolis time) on (i) the
fourth Eurodollar Business Day prior to the proposed Borrowing
Date in the case of Money Market Loans, or (ii) the second
Business Day prior to the proposed Borrowing Date in the case of
Absolute Rate Loans, specifying:
(a) the proposed date of such borrowing (each a "Borrowing
Date"), which date shall be (i) a Eurodollar Business Day
occurring at least one month prior to the last day of the
Revolving Credit Availability Period in the case of Money Market
Loans or (ii) a Business Day occurring at least 30 days prior to
the last day of the Revolving Credit Availability Period in the
case of Absolute Rate Loans;
(b) the aggregate principal amount of the proposed Bid Loan
Borrowing which shall be in a minimum amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(c) in the case of Money Market Loans, the Interest Period of
each Money Market Loan to be made as part of such Bid Loan
Borrowing;
(d) in the case of Absolute Rate Loans, the maturity date for
the repayment of each Absolute Rate Loan to be made as part of
such Bid Loan Borrowing (which maturity date shall be a Business
Day and may not be later than the Maturity Date);
(e) the interest payment date or dates relating thereto; and
25
(f) any other terms to be applicable to such Bid Loan Borrowing.
Each Bid Loan Tender Request Notice shall not request
offers for more than four Interest Periods or maturity dates, as
the case may be, and shall be given or signed on behalf of the
Company by an employee of the Company previously identified to
the Administrative Agent in a writing satisfactory to the
Administrative Agent as authorized to give Bid Loan Tender
Request Notices.
4.3 Invitation to Tender for Bid Loans. Promptly upon receipt
of a Bid Loan Tender Request Notice and in any event not later
than 11:00 a.m. (Minneapolis time) on the (i) fourth Eurodollar
Business Day prior to the proposed Borrowing Date in the case of
Money Market Loans or (ii) second Business Day prior to the
proposed Borrowing Date in the case of Absolute Rate Loans, the
Administrative Agent shall send to the Banks by telex or
telecopier an Invitation to Tender for Bid Loans which shall
constitute an invitation by the Company to each Bank to submit
Bid Loan Tenders offering to make the Bid Loans to which such Bid
Loan Tender Request Notice relates in accordance with Section
4.4. Such Bid Loan Tender Request Notice shall not thereafter be
revocable.
4.4 Submission and Contents of Bid Loan Tenders.
(a) Each Bank may submit one or more Bid Loan Tenders containing
an offer or offers to make Bid Loans in response to any
Invitation to Tender for Bid Loans. Each Bid Loan Tender must
comply with the requirements of this Section 4.4 and must be
submitted to the Administrative Agent by telex or telecopier so
as to be received not later than (i) 8:45 a.m. (Minneapolis
time) on the third Eurodollar Business Day prior to the proposed
Borrowing Date in the case of Money Market Loans and (ii) 9:00
a.m. (Minneapolis time) on the proposed Borrowing Date in the
case of Absolute Rate Loans; provided, that if the Administrative
Agent in its capacity as a Bank shall, in its sole discretion,
elect to submit a Bid Loan Tender, it shall submit the same to
the Company not later than 8:15 a.m. (Minneapolis time) (i) on
the third Eurodollar Business Day prior to the proposed Borrowing
Date in the case of Money Market Loans and (ii) on the proposed
Borrowing Date in the case of Absolute Rate Loans. Subject to
the applicable conditions of Sections 9 and 10, any Bid Loan
Tender shall be irrevocable except with the written consent of
the Administrative Agent given on the written instructions of the
Company.
(b) Each Bid Loan Tender may include offers to make any number
of Bid Loans, shall be in substantially the form of Exhibit E
hereto and shall in any case specify:
(i) the applicable Borrowing Date;
(ii) for each Bid Loan offered:
(A) the principal amount of such Bid Loan (which
principal amount shall be $5,000,000 or an integral multiple
of $1,000,000 in excess thereof);
26
(B) in the case of Money Market Loans, the per
annum (based on actual days elapsed and a year of 360
days) interest rate margin above or below the LIBO Rate
(the "Money Market Margin") for such Bid Loan (expressed
to three decimal places);
(C) in the case of Absolute Rate Loans, the per annum
(based on actual days elapsed and a year of 360 days) fixed
interest rate (the "Absolute Rate") for such Bid Loan
(expressed to three decimal places); and
(D) the maturity date of such Bid Loan;
(iii) the type of Bid Loan;
(iv) the maximum aggregate principal amount of Bid Loans offered
by such Bank (which shall not exceed the aggregate principal
amount of Bid Loans requested by the Company) which may be less
than the aggregate principal amount of Bid Loans specified in
clause (ii). The Company may not accept Bid Loans from such Bank
having an aggregate principal amount in excess of the maximum
aggregate amount specified in this clause (iv); and
(v) the identity of the tendering Bank.
(c) any Bid Loan Tender shall be disregarded that:
(i) is not substantially in the form of Exhibit E hereto or does
not specify all the information required by Section 4.4(b);
(ii) contains qualifying, conditional or similar language;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation to Tender for Bid Loans; or
(iv) is received by the Administrative Agent after the times set
forth in Section 4.4(a).
4.5 Notice to the Company. As soon as reasonably practicable,
and in no event later than (i) 9:30 a.m. (Minneapolis time) on
the third Eurodollar Business Day prior to the proposed Borrowing
Date in the case of Money Market Loans, or (ii) 9:20 a.m.
(Minneapolis time) on the proposed Borrowing Date in the case of
Absolute Rate Loans, the Administrative Agent shall notify the
Company by telephone (promptly confirmed by telex or telecopier)
of the terms of each Bid Loan Tender submitted by a Bank that
complies with Section 4.4.
4.6 Acceptance and Rejection of Bid Loan Tenders.
(a) Acceptance and Notice by the Company. As soon as reasonably
practicable, and in no event later than (i) 10:00 a.m.
(Minneapolis time) on the third Eurodollar Business Day prior to
the proposed Borrowing Date in the case of Money Market Loans or
27
(ii) 9:30 a.m. (Minneapolis time) on the proposed Borrowing Date
in the case of Absolute Rate Loans, the Company shall notify the
Administrative Agent by telephone (promptly confirmed by telex or
telecopier), of its acceptance or rejection of the offers
contained in the Bid Loan Tenders of which it was notified
pursuant to Section 4.5. Subject to Sections 2.9 and 2.10 (and
unless any Bank shall have given notice that it is entitled to
claim compensation pursuant to Sections 7.8 or 7.9 between the
time the Company gives such notice of acceptance and the time
such Bank makes such Bid Loan), such notice from the Company
shall be irrevocable and binding on the Company and specify the
aggregate principal amount of offers at each Absolute Rate or
Money Market Margin, as the case may be, that are accepted. The
Company may accept any of such Bid Loan Tenders in whole or in
part; provided, that:
(i) The aggregate principal amount of the Bid Loans in respect
of which offers are accepted may not exceed the aggregate
principal amount requested in the related Bid Loan Tender Request
Notice; and
(ii) acceptances of Bid Loan Tenders made in response to the same
Invitation to Tender for Bid Loans may only be made on the basis
that the Company has not rejected a Bid Loan Tender at a lower
competitive bid rate. If the Company rejects all Bid Loan
Tenders, the proposed Bid Loan Borrowing shall be cancelled and
the Administrative Agent shall give the Banks prompt notice to
that effect.
(b) Allocation by the Administrative Agent. If offers to make
Bid Loans are made by two or more Banks at the same Absolute Rate
or Money Market Margins, as the case may be, for a greater
aggregate principal amount of Bid Loans than the amount in
respect of which offers to make Bid Loans are accepted at that
Absolute Rate or Money Market Margins, as the case may be, the
principal amount of Bid Loans in respect of which such offers are
accepted at such interest rate shall be allocated by the
Administrative Agent as equitably as is practicable between or
among such Banks in integral multiples of $100,000 based upon the
respective principal amounts of such offers.
(c) Notification of Acceptances to Banks. Prior to (i) 11:00
a.m. (Minneapolis time) on the third Eurodollar Business Day
prior to the proposed Borrowing Date in the case of Money Market
Loans or (ii) 10:00 a.m. (Minneapolis time) on the proposed
Borrowing Date in the case of Absolute Rate Loans, the
Administrative Agent shall notify by telex or telecopier each
Bank that has made a Bid Loan Tender whether its offer or offers
have been accepted, and whether in whole or in part, specifying
the date and principal amount of each Bid Loan to be made by such
Bank as part of the Bid Loan Borrowing and the interest rate
applicable to each such Bid Loan to be made by such Bank. The
Administrative Agent shall also promptly notify all Banks of the
principal amount and maturity date of each Bid Loan made on such
Borrowing Date and the identity of each Bank making such Bid
Loan.
(d) Notification of LIBO Rate for Money Market Loans. On the
second Eurodollar Business Day prior to the proposed Borrowing
Date for Money Market Loans, the Administrative Agent shall
28
notify by telex or telecopier each Bank making such Money Market
Loan and the Company of the LIBO Rate to be applicable thereto.
4.7 Making the Bid Loans. Each Bank that is to make a Bid Loan
as part of a Bid Loan Borrowing shall, before 12:00 noon
(Minneapolis time) on the date of such Bid Loan Borrowing
specified in the notice received from the Administrative Agent
pursuant to Section 4.6(c), make available to the Administrative
Agent such Bank's portion of such Bid Loan Borrowing in
immediately available funds. Upon satisfaction of the applicable
conditions set forth in Sections 9 and 10 and after receipt by
the Administrative Agent of such funds, the Administrative Agent
promptly will make such funds available to the Company.
4.8 The Bid Loan Notes. On or before the Effective Date, the
Company shall duly issue and deliver to the Administrative Agent
a series of notes substantially in the form of Exhibit P hereto
(each, a "Bid Loan Note" and, collectively, the "Bid Loan
Notes"), with appropriate insertions therein, one payable to the
order of each Bank. Each Bank is hereby authorized by the
Company to enter on the schedule attached to its Bid Loan Note or
otherwise in its records, the amount of each Bid Loan made by it
hereunder, each payment thereon and the other information
provided for on such schedule; provided, however, that the
failure to make any such entry or any error in making such entry
with respect to any Bid Loan or with respect to any payment shall
not limit or otherwise affect the obligation of the Company
hereunder or under any such Bid Loan Note, and, in all events,
the principal amount owing by the Company in respect of each
Bank's Bid Loan Note shall be the aggregate amount of all Bid
Loans made by such Bank less all payments of principal thereon
made by the Company. If such schedule shall be fully completed,
such Bank may attach an additional such schedule or schedules
thereto. Each Bid Loan Note shall evidence that the principal
amount of each Bid Loan and shall be due and payable no later
than the maturity date thereof or upon acceleration under Section
13.1. Each Bank's Bid Loan Note shall bear interest as provided
in Section 4.9.
4.9 Interest on Bid Loans. Except as provided in Section 7.2,
the Company shall pay interest on the unpaid principal amount of
each Bid Loan from the date of such Bid Loan to the date the
principal amount of such Bid Loan is repaid in full, as follows:
(a) in the case of Absolute Rate Loans, at the Absolute Rate
specified by the Bank making such Absolute Rate Loan in its Bid
Loan Tender, payable on the interest payment date or dates
specified by the Company in the related Bid Loan Tender Request
Notice and on the maturity date of such Absolute Rate Loan; and
(b) in the case of Money Market Loans, at the LIBO Rate
determined in accordance with the definition thereof plus or
minus the Money Market Margin specified by the Bank making such
Money Market Loan in its Bid Loan Tender, payable on the interest
payment date or dates specified by the Company in the related Bid
Loan Tender Request Notice and on the maturity date of such Money
Market Loan.
4.10 Payments and Prepayments of Bid Loans. The Company shall
repay to the Administrative Agent for the account of each Bank
which has made a Bid Loan on the maturity date of such Bid Loan
the then unpaid principal amount of such Bid Loan. The Company
29
shall have no right to prepay any Bid Loan unless (a) specified
by the Company in the related Bid Loan Tender Request Notice (and
then only upon the terms therein specified), (b) any Bank shall
have requested prepayment of such Bid Loan pursuant to the
provisions of Section 2. 10 or (c) any Bank shall have given
notice that it is entitled to claim compensation pursuant to
Section 7.8 or 7.9 with respect to such Bid Loan. Any such
prepayment shall be accompanied by accrued interest on the Bid
Loan so prepaid and any payments required pursuant to Section
7.3.
4.11 Reborrowings. Within the limits and upon the conditions set
forth in this Section 4, the Company may from time to time during
the Revolving Credit Availability Period borrow under this
Section 4, repay pursuant to Section 4.10 and reborrow under this
Section 4.
5. [RESERVED]
6. [RESERVED]
7. THE FACILITIES IN GENERAL
7.1 Payments.
(a) Each payment, including each prepayment, payable hereunder
(except the arrangement fee under Section 7.12(b)) shall be made
by the Company to the Administrative Agent at U.S. Bank National
Association, or at such other office designated by the
Administrative Agent from time to time, in immediately available
funds by 1:00 p.m. (Minneapolis time) on the due date for such
payment; provided, that any such payment shall be deemed to have
been received by the Administrative Agent by 1:00 p.m.
(Minneapolis time) on such due date if (i) the Company shall have
irrevocably instructed the Administrative Agent to apply the
proceeds of new Credit Extensions scheduled to be made on such
due date to such payment or payments and (ii) such proceeds,
together with other funds the Company has directed the
Administrative Agent to apply, are sufficient, or would be
sufficient but for the failure of a Bank to fund such new Credit
Extension on such date, to make such payment or payments in full.
Upon receipt or deemed receipt thereof by the Administrative
Agent, the Administrative Agent shall remit to each Bank entitled
to receive such payment in immediately available funds on the day
such funds are received or deemed received, such Bank's share
thereof. The Company shall pay the arrangement fee directly to
the Arranger on the Effective Date. If any payment hereunder or
under the Notes with respect to a Base Rate Loan or Absolute Rate
Loan or fees or with respect to any Acceptance, shall be due and
payable on a day other than a Business Day, the maturity thereof
shall be extended to the next Business Day, and interest shall be
payable at the applicable rate with respect thereto during such
extension. If any payment hereunder or under the Notes with
respect to a LIBOR Loan or a Money Market Loan shall be due and
payable on a day other than a Eurodollar Business Day, the
maturity thereof shall be extended to the next Eurodollar
Business Day (unless such day would fall in another calendar
month, in which event payment shall be made on the next preceding
Eurodollar Business Day), and interest shall be payable at the
applicable rate with respect thereto during such extension.
(b) (i) All payments or reimbursements required to be made under
this Agreement shall be made free and clear of and without
deduction for any and all taxes, duties, fees or other charges of
30
any nature whatsoever imposed or levied by any governmental
authority, domestic or foreign (except for taxes, duties, fees or
other charges based upon or measured by the net income, net worth
or shareholder's capital of any Bank, those charges which are in
substitution for, or relieve any Bank from, any tax based upon or
measured by net income, net worth or shareholder's capital of
such Bank, and changes in the rate of tax on the overall net
income, net worth or shareholder's capital of such Bank);
provided, however, that if any Bank or holder of any Note
hereunder fails to file when it may lawfully do so with the
Company a properly completed and executed copy of either Internal
Revenue Service Form W-8BEN or any successor thereto or Internal
Revenue Service Form W-8ECI or any successor thereto and any
additional form necessary for claiming complete exemption from
United States withholding taxes (or such other form as is
required to claim complete exemption from United States
withholding taxes) in accordance with the provisions of Section
7.1(b) (ii), then all such payments to such Bank or holder shall
be net of any amounts the Company is required to withhold under
applicable law. A certificate as to any additional amounts
payable to any Bank under this Section 7.1(b) submitted to the
Company by such Bank shall show in reasonable detail the amount
payable and the calculations used to determine such amount and
shall be conclusive and binding upon the parties hereto in the
absence of manifest error. With respect to each deduction or
withholding for or on account of any taxes, the Company shall
promptly (and in any event not less than 45 days thereafter)
furnish to each Bank such certificates, receipts and other
documents as may be required (in the reasonable judgment of such
Bank) to establish any tax credit to which such Bank may be
entitled.
(ii) As long as it may lawfully do so, each Bank or
holder of any Note agrees to file with the Company, in
duplicate, for each taxable year of such Bank or such holder
during which interest arising under this Agreement is received,
and before payment by the Company of any interest during such
year on the Loans made by such Bank, a properly completed and
executed copy of either Internal Revenue Service Form W-8BEN
or Internal Revenue Service Form W-8ECI or any successor thereto
and any additional form necessary for claiming complete exemption
from United States withholding taxes (or such other form as is
required to claim complete exemption from United States
withholding taxes), if and as provided by the Code, regulations
or other pronouncements of the United States Internal Revenue
Service; and the Bank or such holder, as the case may be,
warrants to the Company that the form so filed will be true
and complete; provided, that such Bank's or such holder's
failure to complete and execute such W-8BEN or W-8ECI, as the
case may be, and any such additional form (or any successor form
or forms) shall not relieve the Company of any of its obligations
under this Agreement, except as otherwise provided in this
Section 7.1(b).
7.2 Interest on Overdue Payments. All amounts payable hereunder
(other than interest), including, without limitation, under the
Notes, after maturity thereof (whether upon stated maturity or
due date, by acceleration or otherwise), not paid when due shall
bear interest, from the date such amounts become due to the date
of payment, at a fluctuating per annum rate equal to the then
Applicable Base Rate plus 2%. All interest provided for in this
Section 7.2 shall be payable on demand.
31
7.3 Indemnification. The Company hereby agrees to indemnify and
hold the Administrative Agent and each Bank free and harmless
from all reasonable losses, costs and expenses (including,
without limitation, any loss, cost or expense incurred by reason
of the liquidation or redeployment of deposits or other funds
acquired by any Bank to fund or maintain any LIBOR Loans, Bid
Loans, Acceptances or Acceptance Participations) which the
Administrative Agent or any Bank may incur, to the extent not
otherwise compensated for under this Agreement and not mitigated
by the redeployment of such deposits or other funds, as a result
of (a) a default by the Company in payment when due of the
principal of or interest on any LIBOR Loan, Bid Loan or
Acceptance Obligation (b) the Company's failure (other than a
failure attributable to a default by such Bank) to make a
borrowing, conversion or refunding with respect to a LIBOR Loan
or Bid Loan or to take down an Acceptance after making a request
therefor, (c) a prepayment, conversion or refunding (whether
mandatory or otherwise, but excluding a prepayment under Section
2.10) of a LIBOR Loan or Bid Loan before the expiration of the
related Interest Period or the maturity date thereof, and (d) any
default by the Company under this Agreement, any demand for
payment of a LIBOR Loan or Bid Loan by the Administrative Agent
permitted hereunder before the expiration of the related Interest
Period; provided, however, that the Company shall not be
obligated to pay any such amounts or amount which are
attributable to periods exceeding 180 days prior to the date of
receipt by the Company of the certificate referred to in the next
sentence. A certificate as to any such loss, cost or expense
(including calculations, in reasonable detail, showing how such
Bank computed such loss, cost or expense) shall be submitted by
such Bank to the Company together with such Bank's request for
indemnification (which request shall set forth the basis for
requesting such amounts) and shall, in the absence of manifest
error, be conclusive and binding as to the amount thereof.
7.4 Adjustments of Revolving Commitments. Upon at least five
Business Days' irrevocable prior written notice to the
Administrative Agent (which shall advise each Bank thereof as
soon as practicable thereafter), the Company may permanently
reduce the Aggregate Revolving Commitment, in whole at any time
or in part from time to time, without premium or penalty,
provided, that (i) each partial reduction of the Aggregate
Revolving Commitment shall be in an aggregate amount equal to at
least $15,000,000, or in integral multiples of $5,000,000 in
excess thereof, (ii) each reduction shall be accompanied by
payment of (a) the Facility Fee accrued on the amount of the
Aggregate Revolving Commitments so reduced through the date of
such reduction, and (b) the amount, if any, by which the
aggregate unpaid principal amount of all Committed Loans
outstanding exceeds the amount of the Aggregate Revolving
Commitments as so reduced, together with accrued interest on the
amount being prepaid to the date of such prepayment, (iii) any
prepayment under clause (ii) above shall be subject to any
required payments pursuant to Section 7.3, (iv) such reduction
shall not cause the Aggregate Outstandings of all Banks to exceed
the Aggregate Revolving Commitment. Reductions of the Aggregate
Revolving Commitment and any accompanying prepayments of the
Committed Loans shall be apportioned among the Banks according to
their Pro Rata Share.
7.5 Determinations of Rates. The Administrative Agent will,
with reasonable promptness, notify the Company and the Banks of
each determination of interest rates and other rates and fee
levels applicable hereunder; provided that any failure to do so
shall not relieve the Company of any liability hereunder or
provide the basis for any claim against the Administrative Agent.
Any change in the interest rate on a Loan or an Acceptance or in
the Facility Fees payable hereunder resulting from a change in
32
the Company's senior unsecured long-term debt ratings or the Debt
to Cashflow Ratio shall become effective as of the opening of
business on the day on which such change in debt ratings becomes
effective or change in Debt to Cashflow Ratio is reported to the
Administrative Agent as provided hereunder. The Administrative
Agent will with reasonable promptness notify the Company and the
Banks of the effective date and the amount of each such change,
provided that any failure to do so shall not relieve the Company
of any liability hereunder or provide the basis for any claim
against the Administrative Agent.
7.6 Mandatory Prepayments. If at any time Aggregate
Outstandings owed all of the Banks exceed the Aggregate Revolving
Commitment, the Company shall promptly make a prepayment of
amounts outstanding hereunder in an amount equal to such excess
which amounts shall be applied by the Administrative Agent in a
manner to minimize the payments required to be made pursuant to
Section 7.3.
7.7 Mandatory Prepayments With Respect to Outstanding
Acceptances. Whenever, by the application of the provisions of
Sections 7.4, 7.6 or 13.1, Aggregate Outstandings which include
outstanding Acceptances shall have become due and payable, the
Company shall pay to the Administrative Agent immediately
available funds equal to the aggregate face amount of all such
outstanding Acceptances, and the Administrative Agent shall hold
such funds as collateral for all outstanding unmatured
Acceptances and all outstanding Acceptance Obligations.
Thereupon such Acceptances for the purposes of this Agreement
shall be deemed to be no longer outstanding and any amounts
payable by the Company hereunder with respect thereto shall be
deemed to have been paid. The Administrative Agent shall apply
the funds so paid to such Acceptances as they mature. After the
maturity of the last of such Acceptances, the Administrative
Agent shall promptly remit to the Company an amount determined by
multiplying (x) the face amount of each of such Acceptances by
(y) a fraction, the numerator of which is the actual number of
days between the date of payment of such funds by the Company and
the last maturity date of such Acceptances and the denominator of
which is 360 by (z) a per annum rate equal to the rate per annum
which the Administrative Agent would offer to pay on its
certificates of deposit issued in the United States at
approximately 10:00 a.m. (Minneapolis time) on the Business Day
preceding the payment of such funds to the Administrative Agent
in a dollar amount comparable to the funds so paid and having a
maturity equal to the weighted average remaining term of such
Acceptances.
7.8 Capital Adequacy. In the event that compliance by any Bank
with any present or future applicable law or governmental rule,
requirement, regulation, guideline or order (whether or not
having the force of law but, if not having the force of law, with
respect to which similarly situated banks generally comply)
regarding capital adequacy has the effect of reducing the rate of
return on such Bank's capital as a consequence of its commitment
to make, or the making or maintaining of, any Credit Extensions
hereunder to a level below that which such Bank would have
achieved but for such compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time the
Company shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction; provided,
however, that the Company shall not be obligated to pay any such
amount or amounts (i) unless such Bank shall have first notified
the Company in writing that it intends to seek compensation from
the Company pursuant to this sentence, and (ii) which are
attributable to periods exceeding 90 days prior to the date of
33
receipt by the Company of such notice. A certificate as to the
amount of any such reduction (including calculations in
reasonable detail showing how such Bank computed such reduction
and a statement that such Bank has not allocated to its
Commitments or outstanding Credit Extensions a proportionately
greater amount of such reduction than is attributable to each of
its other commitments to lend or to each of its other outstanding
credit extensions that are affected similarly by such compliance
by such Bank, whether or not such Bank allocates any portion of
such reduction to such other commitments or credit extensions)
shall be furnished promptly by such Bank to the Company. Any
such certificate setting forth the basis for determining such
reduction or amounts necessary to compensate such Bank shall be
conclusive and binding upon the Company, absent manifest error.
7.9 Charges: Legal Restrictions. If any present or future
applicable law, rule or regulation or any change therein or in
the interpretation or administration thereof by any Governmental
Body, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any
Bank with any request or directive of any such authority, central
bank or comparable agency, whether or not having the force of law
but, if not having the force of law, with respect to which
similarly situated banks generally comply:
(a) subject to the proviso to Section 7.1(b)(i), shall subject
any Bank to any tax, duty or other charge with respect to its
obligation to make Credit Extensions or shall change the basis of
taxation of payments to such Bank of the principal of or the
interest with respect to its Credit Extensions, fees or any other
amounts due under this Agreement in respect of its obligation to
make Credit Extensions (except for taxes based upon or measured
by the net income, net worth or shareholder's capital of any
Bank, those charges which are in substitution for, or relieve any
Bank from, any tax based upon or measured by net income, net
worth or shareholder's capital of such Bank, and changes in the
rate of tax on the overall net income, net worth or shareholder's
capital of such Bank); or
(b) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit,
compulsory loan or similar requirements in connection with any of
the Loans, Acceptances or Acceptance Obligations against assets
of, or deposits or other liabilities with, of or for the account
of, or advances or loans by, or credit extended by, or any
acquisition of funds by or for the account of any office of such
Bank or shall impose on such Bank any other condition affecting
its obligations to make Credit Extensions; and the result of any
of the foregoing would in the reasonable judgment of such Bank
increase the cost to such Bank of making, renewing or maintaining
its Credit Extensions, or reduce the amount of any sum receivable
by such Bank under this Agreement;
then, upon demand by such Bank, the Company agrees to
pay to such Bank such additional amount or amounts as would
compensate such Bank for such increased cost or reduction but
only with respect to the 90-day period immediately preceding the
making of each such demand; provided that there shall be no
duplication of amounts paid to any Bank pursuant to this
Section 7.9 and pursuant to any other provision of this
Agreement. A certificate of such Bank setting forth the basis
for determining such additional amount or amounts necessary to
34
compensate such Bank shall be conclusive and binding upon the
Company, absent manifest error.
Without limiting the effect of the foregoing, upon any
Bank's written request delivered to the Company, the Company
shall pay to such Bank on the last day of each Interest Period so
long as such Bank is required to maintain reserves against
"Eurocurrency liabilities" as defined in Regulation D (as at any
time amended) of the Board of Governors of the Federal Reserve
System, as additional interest on the unpaid principal amount of
each LIBOR Loan, and Money Market Loan by such Bank outstanding
during such Interest Period, an additional amount (determined by
such Bank and notified to the Company) as would, together with
payments of interest on such LIBOR Loan or Money Market Loan for
such Interest Period, result in the receipt by such Bank of total
interest on such LIBOR Loan or Money Market Loan as though such
Bank had funded 100% of its LIBOR Loan or Money Market Loan in
the offshore Dollar market for such Interest Period at a rate
determined by such Bank to be equal to the rate determined in
accordance with the following formula:
LIBO Rate divided by one minus the rate
(expressed as a decimal) of such reserves then
required by such Regulation D in respect of
Eurocurrency liabilities for such Bank, plus, in
the case of LIBOR Loans, the Applicable Margin or,
in the case of Money Market Loans, plus or minus
the Money Market Margin.
7.10 Replacement Banks. In the event that any Bank shall have
given notice that it is entitled to claim compensation pursuant
to Sections 7.8 or 7.9, or shall have given notice of illegality
pursuant to Section 2.10, the Company, with the prior written
consent of the Administrative Agent (which consent will not
unreasonably be withheld), may designate a replacement bank to
assume the Commitments and the other obligations of such Bank
hereunder and under any outstanding Acceptance Participation held
by such Bank and to purchase the outstanding Committed Loan Note
and Bid Loan Note and any outstanding Acceptance Participation
payable to such Bank and such Bank's rights hereunder and with
respect thereto, without recourse upon, or warranty by, or
expense to, such Bank for a purchase price equal to the sum of
(a) the aggregate outstanding unpaid principal amount of such
Committed Loan Note and Bid Loan Note and any outstanding
Acceptance Obligation payable to such Bank, together with all
interest accrued and unpaid thereon, (b) any unpaid Facility Fee
or other fee payable to such Bank for the period prior to such
purchase, (c) the amount that would have been payable to such
Bank pursuant to Section 7.3 had such purchase of said Committed
Loan Note and Bid Loan Note constituted a prepayment thereof
contemplated by clause (c) of the first sentence of Section 7.3,
and (d) the portion of the Acceptance Commission payable to such
Bank upon payment of the related Acceptance Obligation (prorated
in the proportion that the number of days in the period from and
including the date of creation of the related Acceptance to but
excluding the date of the purchase of such Acceptance
Participation bears to the number of days in the period from and
including the date of creation of the related Acceptance to but
excluding the date of the maturity of the related Acceptance).
Upon such assumption and purchase by the replacement bank, such
replacement bank shall be deemed to be a "Bank" for purposes of
this Agreement and such replaced Bank shall cease to be a "Bank"
for purposes of this Agreement and shall no longer have any
obligations hereunder (except as provided in Section 18.10) or
rights hereunder (except as provided in Sections 7.3, 7.8, 7.9
and 19).
35
7.11 Funding. Each Bank may elect to fund all or any portion of
its Loans in any manner it may determine in its reasonable
discretion, including, without limitation, in the Grand Cayman
inter-bank market, the London inter-bank market, the Bahamas
inter-bank market and within the United States; provided that in
any case in such event the obligations of the Company to repay
such Loan shall nevertheless be to such Bank.
7.12 Fees.
(a) The Company agrees to pay to the Banks a facility fee (the
"Facility Fee") during the Revolving Credit Availability Period
(computed in each case on the basis of a 365 or 366 day year, as
applicable, for actual days elapsed) on the entire amount of the
Aggregate Revolving Commitment (whether utilized or unutilized),
equal to (i) 0.15% per annum if Level I Status exists and (ii)
0.20% per annum if Level II Status exists. The Facility Fee
shall be payable quarterly in arrears on the first Business Day
of February, May and August of each year, commencing on the first
Business Day of February, 2001, and on the Maturity Date.
Payment of the Facility Fee shall be made to the Administrative
Agent and, upon receipt thereof, the Administrative Agent shall
promptly remit to each Bank its Pro Rata Share thereof.
(b) The Company shall pay to the Administrative Agent for the
account of each Bank in accordance with its Pro Rata Share, (i) a
utilization fee of 0.125% times the actual daily Aggregate
Outstandings on each day that such Aggregate Outstandings equal
or exceed 50% of the Aggregate Commitments and (ii) an additional
utilization fee of an additional 0.125% times the actual daily
Aggregate Outstandings on each day that such Aggregate
Outstandings equal or exceed 75% of the Aggregate Commitments.
The utilization fee shall be due and payable quarterly in arrears
on the last Business Day of each February, May and August,
commencing with the first such date to occur after January 31,
2001, and on the Maturity Date. The utilization fee shall be
calculated quarterly in arrears.
(c) The Company agrees to pay directly to the Arranger for the
sole use and benefit of the Arranger, on the Effective Date, an
arrangement fee in an amount set forth in and subject to a letter
agreement dated November 30, 2000 among the Arranger, Bank of
America and the Company.
(d) The Company agrees to pay to the Administrative Agent a fee
(for its sole use and benefit) in an amount set forth in a letter
agreement dated December 13, 2000 between the Administrative
Agent and the Company.
8. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the
Banks to enter into this Agreement and to make the Credit
Extensions, the Company hereby makes the following
representations and warranties to the Administrative Agent and to
each Bank:
8.1 Subsidiaries. As of the Effective Date, the Company has
only the Subsidiaries set forth in Exhibit Q hereto. As of the
Effective Date, except as set forth in Exhibit Q, all of the
shares of all classes of the stock of each Subsidiary are owned
by the Company free and clear of any Liens and are validly
36
issued, fully paid for and nonassessable, and there are no
outstanding rights, options, warrants or shareholder agreements,
complete copies of which have not been furnished to the Banks.
8.2 Existence and Power. The Company and each Subsidiary is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization,
has all requisite power and authority to own its Property and to
carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the
character of the Property owned and leased by it therein or the
transaction of its business makes such qualification necessary
except for such jurisdictions where the failure to be in such
standing and so authorized will not materially adversely affect
the financial condition, business or operations of the Company
and its Consolidated Subsidiaries, taken as a whole, or prevent
the enforcement of contracts entered into.
8.3 Authority. The Company has full power and authority to
enter into, execute, deliver and carry out the terms of this
Agreement, to make the borrowings contemplated hereby, to
execute, deliver and carry out the terms of the Credit Documents
and to incur the obligations provided for herein and therein, and
the execution, delivery and performance of this Agreement and the
Credit Documents have been duly authorized by all necessary
corporate action of the Company. No consent or approval of, or
exemption by, any Governmental Body is required to authorize, or
is required in connection with the execution and delivery of, and
performance by the Company of its obligations under, this
Agreement or the Credit Documents or is required as a condition
to the validity or enforceability of this Agreement or the Credit
Documents (except for such consents, approvals or exemptions, if
any, which may be required to be obtained or made subsequent to
the Effective Date, all of which, if then required, will have
been duly obtained or made on or before each date on which the
foregoing representation and warranty shall be made or effective
or reaffirmed, as the case may be, will be sufficient for all
purposes thereof and will be in full force and effect on each
such date).
8.4 Binding Agreement. This Agreement constitutes, and the
Credit Documents when issued and delivered pursuant hereto for
value received will constitute, the valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their respective terms.
8.5 Litigation. As of the Effective Date, there are no actions,
suits or arbitration proceedings (whether or not purportedly on
behalf of the Company or any Subsidiary) pending or, to the
knowledge of the Company, threatened against the Company or any
Subsidiary, or maintained by the Company or any Subsidiary, in
law or in equity before any Governmental Body which individually
or in the aggregate are likely (to the extent not covered by
insurance) to result in a material adverse change in the
consolidated financial condition of the Company and its
Consolidated Subsidiaries, except as set forth in the Company's
annual report on Form 10-K for the fiscal year ended December 25,
1999 or its quarterly reports on Form 10-Q for the thirteen weeks
ended March 25, 2000, June 24, 2000 and September 23, 2000,
respectively, filed with the Securities and Exchange Commission,
and except as disclosed in writing to the Banks (making specific
reference to this Agreement) prior to the Effective Date. As of
the Effective Date, there are no proceedings pending or, to the
knowledge of the Company, threatened against the Company or any
Subsidiary which call into question the validity or
37
enforceability of this Agreement or the Credit Documents or any
document delivered in connection herewith or therewith, or any
action to be taken in connection with the transactions
contemplated hereby or thereby.
8.6 No Conflicting Agreements. Neither the Company nor any
Subsidiary is in default under any agreement to which it is a
party or by which it or any of its Property is bound the effect
of which could reasonably be expected to have a material adverse
effect on the business or operations of the Company and its
Consolidated Subsidiaries taken as a whole, except as disclosed
in writing to the Banks (making specific reference to this
Agreement). No provision of (i) the articles of incorporation,
charter, bylaws, preferred stock or any shareholder agreement of
the Company or any Subsidiary, (ii) subject to the Company's
compliance with any applicable covenants pertaining to its
incurrence of unsecured indebtedness, any existing mortgage or
indenture or loan or credit agreement, (iii) any other contract
or agreement (which is, individually or in the aggregate,
material to the consolidated financial condition, business or
operations of the Company and its Consolidated Subsidiaries)
after giving effect to any effective amendments or waivers to the
terms thereof, (iv) any statute (including, without limitation,
any applicable usury or similar law), rule or regulation, and (v)
any judgment, decree or order (which is, individually or in the
aggregate, material to the consolidated financial condition,
business or operations of the Company and its Consolidated
Subsidiaries), in either case binding on the Company or any
Subsidiary or affecting the property of the Company or any
Subsidiary; conflicts with, or requires any consent under, or
would in any way prevent the execution, delivery or carrying out
of the terms of, this Agreement or the Credit Documents, and the
taking of any such action will not constitute a default under
(subject as aforesaid), or result in the creation or imposition
of, or obligation to create, any Lien upon the Property of the
Company or any Subsidiary pursuant to the terms of any such
mortgage, indenture, loan or credit agreement or other contract
(other than any right to setoff or banker's lien or attachment
that any Bank or other holder of Credit Documents may have under
applicable law).
8.7 Taxes. The Company and each Consolidated Subsidiary has
filed or caused to be filed all tax returns required to be filed,
and has paid, or has made adequate provision for the payment of,
all taxes shown to be due and payable on said returns or in any
assessments made against it, and no tax liens have been filed and
no claims are being asserted with respect to such taxes which are
required by Generally Accepted Accounting principles to be
reflected in the Financial Statements and are not so reflected
therein. The charges, accruals and reserves on the books of the
Company and each Consolidated Subsidiary with respect to all
federal, state, local and other taxes are considered by the
management of the Company to be adequate, and the Company knows
of no unpaid assessment which is due and payable against the
Company or any Consolidated Subsidiary, except (a) those not yet
delinquent, (b) those not substantial in aggregate amount, (c)
such thereof as are being contested in good faith and by
appropriate proceedings diligently conducted, or (d) those
involving foreign taxes and assessments which are involved in a
good faith dispute with respect to tax or other matters (subject,
in the case of clause (c) or (d), to appropriate reserves).
8.8 Financial Statements. The Company has heretofore delivered
to each Bank copies of the consolidated balance sheets of the
Company as of December 31, 1999, and the related consolidated
statements of operations, shareholder's equity and changes in
cash flows for the year then ended (such statements being
sometimes referred to herein as the "Financial Statements"). The
38
Financial Statements were audited and reported on by the
Accountants. The Financial Statements fairly present the
consolidated financial condition and the consolidated results of
operations of the Company as of the date and for the period
indicated therein, and the Financial Statements have been
prepared in conformity with Generally Accepted Accounting
Principles (except as disclosed in the notes thereto). As of the
Effective Date, except (i) as reflected in the Financial
Statements or in the footnotes thereto, or (ii) as otherwise
disclosed in writing to the Banks prior to the date hereof
(making specific reference to this Agreement), neither the
Company nor any Subsidiary has any obligation or liability of any
kind (whether fixed, accrued, contingent, unmatured or otherwise)
which is material to the Company and the Consolidated
Subsidiaries on a consolidated basis and which, in accordance
with Generally Accepted Accounting Principles consistently
applied, should have been recorded or disclosed in such Financial
Statements and were not, other than those incurred in the
ordinary course of their respective businesses since the date of
such Financial Statements. Since December 25, 1999 to the
Effective Date (i) the Company and each Subsidiary has conducted
its business only in the ordinary course, and (ii) there has been
no adverse change in the financial condition of the Company and
its Subsidiaries taken as a whole which is material to the
Company and its Consolidated Subsidiaries on a consolidated
basis, except in each case as set forth in the Company's annual
report on Form 10-K for the fiscal year ended December 25, 1999
or its quarterly reports on Form 10-Q for the thirteen weeks
ended March 25, 2000, June 24, 2000 and September 23, 2000,
respectively, filed with the Securities and Exchange Commission,
and except in each case as disclosed in writing to the Banks
(making specific reference to this Agreement) prior to the
Effective Date; and, since the Effective Date, there has been no
material adverse change in their consolidated financial condition
from the most recent consolidated financial statements of the
Company and its Consolidated Subsidiaries which have been
furnished to the Banks pursuant to this Agreement, except as
disclosed in writing to the Banks (making specific reference to
this Agreement).
8.9 Compliance with Applicable Laws; Environmental Matters.
(a) Neither the Company nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body which default would have a
material adverse effect on the financial condition, operations or
Property of the Company and its Consolidated Subsidiaries on a
consolidated basis except as disclosed in writing to the Banks
(making specific reference to this Agreement). The Company and
each Subsidiary is complying in all material respects with all
applicable statutes and regulations, including without limitation
ERISA and applicable occupational, safety and health and other
labor laws, of all Governmental Bodies, a violation of which
could reasonably be expected to have a material adverse effect on
the financial condition, operations or Property of the Company
and its Subsidiaries on a consolidated basis, except as otherwise
disclosed in writing to the Banks (making specific reference to
this Agreement).
(b) The Company conducts in the ordinary course of business a
review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties,
and as a result thereof the Company has reasonably concluded
that, except as specifically disclosed in Schedule 2, such
Environmental Laws and Environmental Claims could not,
individually or in the aggregate, reasonably be expected to have
39
a material adverse effect on the financial condition, operations
or Property of the Company and its Subsidiaries on a consolidated
basis.
8.10 Property. The Company and each Subsidiary has good and
valid title to, or good and valid leasehold interests in, all of
its Property which is material to the Company and its
Consolidated Subsidiaries taken as a whole, subject to no Liens,
except such thereof as are not prohibited by the terms of this
Agreement.
8.11 Federal Reserve Regulations. The Company is not engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulation U of
the Federal Reserve Board, as amended. No part of the proceeds
of the Credit Extensions will be used, directly or indirectly,
for a purpose which violates any law, rule or regulation of any
Governmental Body, including, without limitation, the provisions
of Regulations T, U, or X of said Board, as amended.
8.12 No Misrepresentation. No representation or warranty
contained herein or in any document to be executed and delivered
in connection herewith and no certificate or report furnished or
to be furnished by the Company or any Subsidiary in connection
with the transactions contemplated hereby, contains or will
contain a misstatement of material fact, or omits or will omit to
state a material fact required to be stated in order to make the
statements herein or therein contained (taken as a whole) not
misleading in the light of the circumstances under which made.
8.13 Employee Benefit Plans.
(a) Each Employee Benefit Plan of the Company is in compliance
in all material respects with the applicable provisions of ERISA,
the Code and other federal or state law. Each Employee Benefit
Plan of the Company which is intended to qualify under
Section 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of the Company,
nothing has occurred which would cause the loss of such
qualification.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any
Governmental Body, with respect to any Employee Benefit Plan
which has resulted or could reasonably be expected to result in
liability which is material to the consolidated financial
condition of the Company and its Consolidated Subsidiaries.
There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Employee
Benefit Plan of the Company which has resulted or could
reasonably be expected to result in liability which is material
to the consolidated financial condition of the Company and its
Consolidated Subsidiaries.
(c) As of the date hereof, neither the Company nor any Related
Person to the Company or any Subsidiary maintains or contributes
to any Plan, except as specifically disclosed in Schedule 3. To
the best of the Company's knowledge, neither the Company nor any
Related Person to the Company or any Subsidiary has ever
contributed to any multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA.
40
8.14 Investment Company Act. The Company 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.
8.15 Public Utility Holding Company Act. The Company is not a
"holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
9. CONDITIONS OF LENDING -- INITIAL CREDIT EXTENSIONS
In addition to the requirements set forth in Section 10, the
obligation of each Bank to make its initial Credit Extension
hereunder shall be subject to the fulfillment of the following
conditions precedent:
9.1 Evidence of Execution and Corporate Action.
(a) The Administrative Agent shall have received written or
facsimile notice that counterparts of this Agreement have been
executed by each of the parties hereto and the Company shall have
executed and delivered to the Administrative Agent for the
account of each Bank the Committed Loan Notes and the Bid Loan
Notes (appropriately completed).
(b) State certificates as to the Company:
(i) The Administrative Agent shall have received (with a
photocopy for each Bank) a copy of the Composite Certificate of
Incorporation of the Company and each amendment, if any, thereto,
certified by the Secretary of State of the State of Delaware (as
of a date reasonably near the date of the initial Credit
Extension hereunder) as being true and correct copies of such
documents on file in his office.
(ii) The Administrative Agent shall have received (with a
photocopy for each Bank) certificates of good standing for the
Company from each of (a) the Secretary of State of Delaware and
the Secretaries of State of the States where the Company conducts
its principal operations, certifying that the Company is in good
standing in such States and (b) if available, the appropriate tax
authorities of each State listed in (a) above, certifying that
the Company is in good standing and has no known unpaid tax
liability, such certificates to be dated reasonably near the date
of the initial Credit Extension hereunder.
(c) The Administrative Agent shall have received (with a signed
copy for each Bank) the signed certificate of the President or a
Vice President and the Secretary of the Company, dated the date
of the initial Credit Extension hereunder, certifying as to (i) a
true and correct copy of resolutions adopted by the Board of
Directors (or the duly empowered Executive Committee of the Board
of Directors) of the Company authorizing the execution, delivery
and performance by the Company of this Agreement and the Credit
Documents, and authorizing the issuance by the Company of the
41
Credit Documents in the manner and for the purpose contemplated
by this Agreement, (ii) a true and correct copy of the by-laws of
the Company as in effect on such date, and (iii) the incumbency
and specimen signatures of officers or employees of the Company
executing the Agreement, the Credit Documents and any other
documents delivered to the Administrative Agent in connection
with this Section 9.
9.2 Opinion of Company Counsel. The Administrative Agent shall
have received (with a signed copy for each Bank) the signed
opinion of Xxxxxx X. Xxxxx, Esq., General Counsel of the Company,
hereby given upon the express instructions of the Company, dated
the date of the initial Credit Extension hereunder, in the form
of Exhibit I hereto, with such changes (if any) therein as shall
be acceptable to the Administrative Agent, and as to such other
matters as the Administrative Agent may reasonably request.
9.3 Other Instruments and Documents. The Administrative Agent
shall have received (with a photocopy for each Bank) such other
instruments and documents as the Administrative Agent may have
reasonably requested on or before the Effective Date.
9.4 Other Agreements. Evidence satisfactory to the
Administrative Agent that each of: (i) the Amended and Restated
Multi-Year Credit Agreement dated as of December 21, 1995 among
the Company, certain of the Banks (and other banks), the
Syndication Agent and First Bank National Association, as
Administrative Agent, (ii) the Revolving Credit Facility dated
January 21, 2000 among the Company, the Syndication Agent and
Citibank, N.A., each as a Co-Lead Arranger and Co-Administrative
Agent, and (iii) the Promissory Note dated June 15, 2000 by the
Company in favor of Bank of America, National Association have
been (substantially contemporaneously with the initial Credit
Extension hereunder) paid off in full and have expired or been
cancelled.
9.5 Fees. The Company shall have paid to the Syndication Agent,
the Arranger and the Administrative Agent such fees as are
required to be paid pursuant to the Fee Letters.
10. CONDITIONS OF LENDING -- ALL CREDIT EXTENSIONS
10.1 All Credit Extensions. The obligations of the Banks to make
any Credit Extension are subject to the fulfillment of the
following conditions precedent:
(a) On each Borrowing Date and Drawing Date, and after giving
effect to the Credit Extensions to be made on each such date
(except, in the case where the sum of (i) the aggregate principal
amount of the Committed Loans and (ii) the aggregate face amount
of Bankers Acceptances being made or created on such date equals
or is less than the sum of (x) the aggregate principal amount of
the Committed Loans and (y) the aggregate face amount of Bankers
Acceptances, in each case to be repaid on such date), (A) there
shall exist no Default or Event of Default, (B) the
representations and warranties contained in this Agreement shall
be true, correct and complete in all material respects on and as
of such date to the extent as though made on and as of such date,
except with respect to any representation or warranty which
specifically refers to an earlier date, and (C) both before and
after giving effect to such Credit Extension, the Company shall
be in compliance with the requirements of any applicable
42
covenants pertaining to its incurrence of unsecured indebtedness.
Each Borrowing Request, Bid Loan Tender Request Notice and Notice
of Drawing submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the
date of each such request or notice and as of the date of the
applicable Credit Extension that the conditions in this Section
10.1(a) are satisfied.
(b) All documents required by the provisions of this Agreement
to be executed or delivered to the Administrative Agent on or
before the applicable Borrowing Date and Drawing Date shall have
been executed and shall have been delivered to the Administrative
Agent at its office indicated pursuant to Section 15, or at such
other place designated by the Administrative Agent from time to
time, on or before such date.
10.2 Committed Loans. The obligations of the Banks to make
Committed Loans are subject to the Administrative Agent having
received a Borrowing Request, except in the case of a conversion
pursuant to the last sentence of Section 2.6.
10.3 Bid Loans. The obligation of each Bank which is to make a
Bid Loan as part of a Bid Loan Borrowing (including the initial
Bid Loan Borrowing) to make such Bid Loan is subject to the
Administrative Agent having received the Bid Loan Tender Request
Notice with respect thereto in accordance with Section 4.2.
10.4 Acceptances. The obligations of the Administrative Agent to
accept Drafts and of the Acceptance Participants to accept from
the Administrative Agent Acceptance Participations with respect
thereto are subject to the Administrative Agent having received a
Notice of Drawing requesting acceptance of such Drafts in
accordance with Section 3.2.
11. AFFIRMATIVE COVENANTS
The Company covenants and agrees that, on and after the
Effective Date, unless otherwise expressly provided in this
Section 11, and until the later of the termination of all
Commitments and the payment in full of all principal of and
interest on all Loans, all commitment fees and all outstanding
Acceptances and Acceptance Obligations, and subject to the
conditions stated herein, the Company will:
11.1 Preservation of Corporate Existence, Etc. Subject to
Section 12.9, do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) of the Company
and each Subsidiary; provided, however, that the Company shall
not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or any Subsidiary and
that the loss thereof will not have a material adverse effect on
the business, operations, properties, assets or condition
(financial or otherwise) of the Company and its Consolidated
Subsidiaries taken as a whole.
11.2 Taxes. Pay, or provide adequate reserves or obtain adequate
indemnity for the payment of, and will cause each Consolidated
Subsidiary to pay or provide adequate reserves or obtain adequate
indemnity for the payment of, all taxes and assessments payable
by it which become due, other than (a) those not yet delinquent,
(b) those not substantial in aggregate amount, (c) those being
43
contested in good faith or (d) those involving foreign taxes and
assessments which are involved in a good faith dispute with
respect to tax or other matters.
11.3 Insurance. (i) To the extent insurance is available on a
commercially reasonable basis, maintain, and cause each
Subsidiary to maintain, insurance with reputable insurance
carriers including, without limitation, Affiliates of the Company
on such of its Property, against such risks, and in such amounts
as is customarily maintained by similar businesses of similar
size with respect to Properties of similar character; or (ii) in
lieu thereof, in the case of itself or of any one or more
Subsidiaries, maintain or cause to be maintained a system or
systems of self-insurance which will accord with the practices of
companies owning or operating Properties of a similar character.
11.4 Maintenance of Properties. Cause all Properties used or
useful in the conduct of its business or the business of a
Consolidated Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment, and cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all
as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section 11.4 shall prevent the Company from
discontinuing the operation or maintenance, or both the operation
and maintenance, of any of such Properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Consolidated Subsidiary and
would not result in a material adverse effect on the business,
properties, assets, operations or condition (financial or
otherwise) of the Company and its Consolidated Subsidiaries taken
as a whole.
11.5 Compliance with Laws, Etc. Not violate any laws, rules,
regulations, or governmental orders to which it is subject, which
violation could reasonably be expected to have a material and
adverse effect on the business, properties, assets, operations,
condition (financial or otherwise) of the Company and its
Consolidated Subsidiaries taken as a whole; and not permit any
Subsidiary to violate any laws, rules, regulations, or
governmental orders which violation could reasonably be expected
to have a material and adverse effect on the consolidated
financial condition of the Company and its Consolidated
Subsidiaries.
11.6 Financial Statements and Other Information. Furnish to each
Bank:
(a) Interim Reports. Within 60 days after the end of each of
the first three quarterly fiscal periods in each fiscal year of
the Company, its Form 10-Q for said period, certified, subject to
changes resulting from year-end audit adjustments, by a financial
officer of the Company;
(b) Annual Reports. Within 120 days after the end of each
fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as at the end of such
year, and the related consolidated statements of operations,
stockholders' equity and cash flows for such year, setting forth
in each case in comparative form the consolidated figures set
forth by the Company for comparative purposes in its Form 10-K
for such year, accompanied by the opinion (which is not qualified
as a result of a limitation on the scope of the audit or
44
nonconformity with Generally Accepted Accounting Principles)
thereon of the Accountants, which opinion shall be prepared in
accordance with United States generally accepted auditing
standards relating to reporting and shall be based upon an
examination by such Accountants of the relevant accounts;
(c) Officer's Certificates. Together with each delivery of
financial statements pursuant to Sections 11.6(a) and (b) above,
an Officer's Certificate stating that the signer has reviewed the
relevant terms of this Agreement and of the Credit Documents and
has made, or caused to be made under such officer's supervision,
a review of the transactions and condition of the Company and its
Consolidated Subsidiaries covered by such financial statements
during the accounting period in question, and that such review
has not disclosed the existence during such accounting period,
and that the signer does not have knowledge of the existence as
at the date of such Officer's Certificate, of a Default or an
Event of Default, or, if any such Default or Event of Default
exists, specifying the nature and period of existence thereof and
what action the Company has taken or is taking or proposes to
take with respect thereto;
(d) Compliance Certificates. Together with each delivery of
financial statements pursuant to Sections 11.6(a) and (b) above,
a compliance certificate demonstrating in reasonable detail
compliance during such accounting period with Sections 12.3, 12.4
and 12.6;
(e) Accountants' Certificates. Together with each delivery of
financial statements pursuant to Section 11.6(b) above, a
certificate signed by the Accountants reporting thereon (i)
briefly setting forth the scope of their examination (which shall
include a review of the Credit Documents, of this Section 11.6
and of Sections 12.3, 12.4 and 12.6), (ii) stating whether or not
their examination has disclosed the existence, during the fiscal
year covered by such financial statements, of any Default or
Event of Default and, if their examination has disclosed such a
Default or Event of Default, specifying the nature and period of
existence thereof, and (iii) stating that they have examined the
Officer's Certificate delivered therewith pursuant to Section
11.6(c) above;
(f) Reports to SEC and to Stockholders. Promptly upon their
becoming available, copies of all financial statements, reports,
notices and proxy statements sent by the Company to its
stockholders, and of all reports filed by the Company or any of
its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any governmental authority
succeeding to any of its functions;
(g) Notice of Default. Forthwith upon any principal officer of
the Company obtaining knowledge of the occurrence of a Default or
an Event of Default, an Officer's Certificate specifying the
nature and period of existence thereof and what action the
Company has taken or is taking or proposes to take with respect
thereto;
(h) [Reserved];
(i) ERISA Notices. Notice within 30 days of:
45
(i) the adoption of or commencement of contributions
to any Plan by the Company or any Related Person to the
Company or any Subsidiary; or
(ii) the commencement of contributions by the Company
or any Related Person Subsidiary to the Company to any
multiemployer plan within the meaning of Section 4001(c)(3)
of ERISA; or
(iii) the occurrence of a Reportable Event, the
commencement of proceedings to terminate a Plan or the full
or partial withdrawal from any multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA by the Company
or any Related Person to the Company or any Subsidiary; and
(j) Other Information. With reasonable promptness, such other
information and data with respect to the Company or any of its
Subsidiaries as from time to time may be reasonably requested by
any Bank.
11.7 Inspections: Discussions. Permit any authorized
representatives designated by the Administrative Agent (on behalf
of the Majority Banks) or any Bank, at the Banks' or such Bank's
expense, to make reasonable inspections of any of the Properties
of the Company or any of its Subsidiaries, including its and
their books of account, and to discuss its and their affairs,
finances and accounts with its and their officers all at such
reasonable times and as often as may be reasonably requested by
such Bank; provided, that, if required by the Company, the
Administrative Agent or any such Bank, as applicable, shall, as a
condition to being permitted to make any such inspection, certify
to the Company that the same is being made solely in order to
assist the Administrative Agent or such Bank in evaluating its
interest in the Notes or its obligations hereunder.
11.8 Books and Records. Maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and
administered in accordance with Generally Accepted Accounting
Principles applied on a consistent basis, and set aside, and
cause each of its Subsidiaries to set aside, on its books all
such proper reserves as shall be required by Generally Accepted
Accounting Principles.
11.9 Use of Proceeds of Loans. Use the proceeds of the Credit
Extensions for general corporate purposes, not otherwise
inconsistent with the provisions of this Agreement.
11.10 Environmental Laws. The Company shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain
its property in compliance with all Environmental Laws, the
noncompliance with which could reasonably be expected to have a
material adverse effect on the financial condition, operations or
Property of the Company and its Subsidiaries on a consolidated
basis.
12. NEGATIVE COVENANTS
The Company covenants and agrees that, on and after the
Effective Date, unless otherwise expressly provided in this
Section 12, and until the later of the termination of all
Commitments or the payment in full of all principal of and
interest on all Loans, all fees and all outstanding Acceptances
46
and Acceptance Obligations, and subject to the conditions stated
herein, the Company will not:
12.1 [Reserved].
12.2 [Reserved].
12.3 Minimum Debt Service Coverage. Permit, as of the last day
of any fiscal quarter, the ratio of (a) Consolidated Cash Flow to
(b) Consolidated Debt Service to be less than 1.60 to 1.00.
12.4 Maximum Total Fixed Asset Debt and Total Senior Fixed Asset
Debt to Consolidated Adjusted Net Worth Ratios.
(a) Issue, guarantee or assume or become liable in respect of
any Funded Debt or Short-Term Borrowing, or permit any
Consolidated Subsidiary so to do, if, after giving effect
thereto, the ratio of Total Fixed Asset Debt to Consolidated
Adjusted Net Worth will exceed the ratio of 0.90 to 1.00 as of
the last day of any fiscal quarter.
(b) Issue, guarantee or assume or become liable in respect of
any Funded Debt or Short-Term Borrowing, or permit any
Consolidated Subsidiary so to do, if, after giving effect
thereto, the ratio of Total Senior Fixed Asset Debt to
Consolidated Adjusted Net Worth will exceed the ratio of 0.75 to
1.00 as of the last day of any fiscal quarter.
12.5 [Reserved].
12.6 Debt in Subsidiaries. Permit Indebtedness of any
Subsidiary, exclusive of intercompany loans, to exceed 30% of the
Total Assets held by such Subsidiary; provided, however, that if
the amount of Indebtedness held by any Subsidiary acquired after
the date hereof would cause the Company to exceed such
percentage, no violation of this Section 12.6 shall arise as a
result thereof until 90 days after the date of such acquisition
(excluding from the application of this Section 12.6 the
Indebtedness of IBP Finance Company of Canada).
12.7 Restricted Payments. Declare or make any Restricted Payment
unless, at the time of and immediately after giving effect to
payment of such Restricted Payment, no Default or Event of
Default shall have occurred and be continuing.
12.8 Liens; Sale of Accounts Receivable. (a) Except for
Permitted Liens, create, incur, assume or suffer to exist any
Lien against or in any of the Property now owned or hereafter
acquired by the Company or any Consolidated Subsidiary, or permit
any Consolidated Subsidiary so to do.
(b) With respect to accounts receivable of the Company
or any of its Consolidated Subsidiaries which have been sold,
assigned or otherwise transferred to another Person in a
transaction classified as a sale of accounts receivable in
accordance with Generally Accepted Accounting Principles, at
no time shall the aggregate amount of accounts receivable sold,
assigned or transferred exceed fifty percent (50%) of the
aggregate amount of Eligible Accounts Receivable of the Company
and its Consolidated Subsidiaries in existence at the time of
47
the first such sale, assignment or transfer. For purposes of
this Section 12.8(b), "Eligible Accounts Receivable" shall have
the meaning assigned to such term in any accounts receivable
purchase/sale agreement entered into after the date of this
Agreement which governs any such sale, assignment or transfer.
To the extent this Section applies to Margin Stock (as
such term is defined in Regulation U of the Federal Reserve Board
Regulations or any successor regulation or interpretation), it
shall only apply to the assets of the Company consisting of
Margin Stock which comprises 25% or less of the total assets of
the Company after the application of the proceeds of any Loan.
12.9 Mergers, Consolidations or Asset Sales. Consolidate with or
merge into any other corporation, or directly or indirectly sell,
assign, lease, convey, transfer or otherwise dispose of (whether
in one or a series of transactions) its Properties or assets
substantially or as an entirety (the term "substantially" to
mean, as used in this Section 12.9, at any point in time, an
amount which exceeds 20% of the aggregate book value of the
assets of the Company and its Consolidated Subsidiaries) to any
Person or Consolidated Subsidiary, unless:
(a) immediately after giving effect to such transaction, the
Company is the surviving entity and continues, without
interruption, to observe the due and punctual payment of all
obligations of the Company under each Credit Document and
performance of every covenant of this Agreement on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(c) such consolidation or merger shall have been approved by a
majority of the board of directors of the Company.
To the extent this Section applies to Margin Stock (as
such term is defined in Regulation U of the Federal Reserve Board
Regulations or any successor regulation or interpretation), it
shall only apply to the assets of the Company consisting of
Margin Stock which comprises 25% or less of the total assets of
the Company after the application of the proceeds of any Loan.
12.10 Obligations as Lessee. Enter into or suffer to exist
any arrangement as lessee of Property (other than (i) any
arrangement under which the Company or a Consolidated Subsidiary
is lessor and (ii) capitalized leases) for a term in excess of
one year (including any renewal terms at the option of the
lessor), or permit any Consolidated Subsidiary so to do, if,
after giving effect thereto, the aggregate of all such rental
payments (excluding any lease permitting cancellation at the
option of lessee within 60 days or less after giving notice of
such cancellation, without payment by the lessee of any penalty
or charge other than the actual costs of restoring the leased
property to its former condition or returning the leased property
to the lessor) payable by the Company and its Consolidated
Subsidiaries for the next four fiscal quarters exceeds 5% of
Consolidated Adjusted Net Worth.
48
12.11 Short-Term Investments, Loans, Etc. Make any loan or
advance to, or purchase a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities
at a future date in the nature of a futures contract, or make any
other investment, whether by way of capital contribution or
otherwise, in or with any Person other than a Subsidiary (all of
which are sometimes hereinafter referred to as "Investments") or
permit any Subsidiary so to do other than with respect to the
Company except:
(a) Investment grade Short-Term Investments (or the indirect
equivalent thereof). For purposes of this Section 12.11,
"investment grade" shall mean Investments rated at least A2 or
BBB- by S&P, or at least P2 or Baa3 by Xxxxx'x; and "Short-Term
Investment" shall mean any Investment which under Generally
Accepted Accounting Principles would be classified as a "short-
term" Investment.
(b) Purchases of futures contracts for the purpose of protection
from commodity price, interest rate or currency conversion rate
fluctuations posed by contract obligations of the Company;
provided that the tenor and amount of any such futures contract
shall be consistent with the obligations of the Company under any
such contract obligations;
(c) Investments in addition to those set forth in clause (a) and
(b) above, in an aggregate amount not to exceed 7.5% of the
Company's Consolidated Adjusted Net Worth at any one time
outstanding; provided that with respect to any futures contract
(other than a futures contract described in clause (b) above)
purchased for the protection from commodity price fluctuations
with respect to commodities either ordinarily used in the
Company's business operations or the price of which generally
approximates the price of commodities ordinarily used in the
Company's business operations only the amount, if any, by which
(x) the aggregate obligations of the Company under all such
futures contacts outstanding at any one time exceeds (y) the
aggregate fair market value of all such outstanding contracts (as
determined by the closing price of each such contract on the
appropriate commodities exchange or exchanges) shall be included
for purposes of this Section 12.11(c); and
(d) Non-investment grade Short-Term Investments (or the indirect
equivalent thereof), the fair market value of which, on an
aggregate basis, does not exceed $5,000,000 at any time.
12.12 Transactions with Affiliates. Enter into any material
transaction with any Affiliate on any terms more favorable to
such Affiliate than those that would be obtained in an arm's
length transaction.
12.13 Nature of Business. Engage, or permit any of its
Consolidated Subsidiaries to engage, in any business that would
substantially change the general nature of the business conducted
by the Company and its Consolidated Subsidiaries, taken on a
consolidated basis, on the Effective Date; provided that, without
limiting the generality of the foregoing, nothing in this Section
12.13 shall prevent the Company or any of its Consolidated
Subsidiaries from engaging in any business which involves or is
incidental to the production, purchase, processing or sale of any
agricultural product.
49
13. DEFAULT
13.1 Events of Default. The following shall each constitute an
"Event of Default" hereunder:
(a) Default in the payment when due of any amount owing by the
Company under the Credit Documents in respect of the principal of
any of the Credit Extensions or default, and continuance thereof
for three Business Days, in the payment when due of any amount
owing by the Company (i) under the Credit Documents in respect of
interest under the Credit Extensions; or (ii) in respect of any
Facility Fee, other fee or other amount when due and payable
under this Agreement; provided, that any such default in respect
to principal owing to any Bank which has failed or refused to
fund a Credit Extension at the times prescribed herein, which
default is a direct consequence of such failure or refusal by
such Bank, shall not constitute an Event of Default if the
Company has satisfied all applicable conditions of Sections 9 and
10 and such Bank is obligated to fund such Credit Extension under
the terms of this Agreement (it being understood that this
proviso does not affect or limit in any way the validity or
enforceability of the obligation of the Company to pay such
defaulted amount, the remedies otherwise available to the holder
of the defaulted Credit Document or the remedies available to the
Company against such defaulting Bank, the purpose of this proviso
being only to preclude termination of the Commitments and/or
acceleration of the Company's obligations hereunder upon such
default in payment); or
(b) Default shall be made in the due observance or performance
of any covenant or agreement contained in Section 11.6(g), or
Sections 12.3, 12.4, 12.6, 12.7, 12.8(b), 12.9, 12.12 or 12.13
(other than a Default which would not have occurred or would not
be continuing if the calculations pursuant to the aforesaid
Sections were made without giving effect to changes in Generally
Accepted Accounting Principles which become effective after the
Effective Date); or
(c) Default shall be made in the due observance or performance
by the Company of any other term, covenant, or agreement on its
part to be performed or observed under this Agreement (and not
constituting an Event of Default under any other clause of this
Section 13.1) and such Default shall have continued unremedied
for a period of 30 days after the Administrative Agent (upon
instruction of the Majority Banks) notifies the Company in
writing of such Default; or
(d) Any representation or warranty made by the Company herein,
or in any certificate, report, opinion, or notice delivered or to
be delivered pursuant hereto shall prove to have been incorrect
or misleading (whether because of misstatement or omission) in
any material respect when made or deemed made; or
(e) The Company or any Consolidated Subsidiary shall default
(subject to applicable notice or grace periods) in the payment
when due of any principal of or interest on any indebtedness for
borrowed money whether such indebtedness now exists or shall
hereafter be created, or any event of default (with respect to
the Company or any Consolidated Subsidiary) as defined in any
mortgage, indenture or instrument under which there may be
50
issued, or by which there may be secured or evidenced, any
indebtedness for borrowed money of, or guaranteed by, the Company
or any Consolidated Subsidiary shall occur and shall permit such
indebtedness to be accelerated (other than in respect of any
indebtedness (i) which is payable solely out of the property or
assets of a partnership, joint venture or similar entity of which
the Company or any Consolidated Subsidiary is a participant, or
is secured by a mortgage on the property or assets owned or held
by such entity, without further recourse to or liability of the
Company or any Consolidated Subsidiary, or (ii) if the principal
of and interest on such indebtedness, when added to the principal
of and interest on all other such indebtedness then in default
(exclusive of indebtedness under clause (i) above), does not
exceed $5,000,000); or
(f) The Company or any Material Subsidiary shall: (i) suspend
or discontinue its business, or (ii) make an assignment for the
benefit of creditors, or (iii) generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, or
(iv) file a voluntary petition in bankruptcy, or (v) file any
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief in any proceeding under any present
or future statute, law or regulation of any jurisdiction (except
the voluntary dissolution not under any bankruptcy or insolvency
law, of a Material Subsidiary), or (vi) petition or apply to any
tribunal for any receiver, custodian or any trustee for any
substantial part of its Property, or (vii) have commenced against
it any such proceeding which remains undismissed for a period of
60 days, or (viii) file any answer admitting or not contesting
the material allegations of any such petition filed against it,
or of any order, judgment or decree approving such petition in
any such proceeding, or (ix) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any
trustee, receiver, custodian, liquidator, or fiscal agent for it,
or any substantial part of its Property, or an order is entered
appointing any such trustee, receiver, custodian, liquidator or
fiscal agent and such order remains in effect for 60 days, or (x)
take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of the
Company; or
(g) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a
court having jurisdiction in the premises (i) adjudging the
Company or any Material Subsidiary a bankrupt or insolvent, or
(ii) approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Material Subsidiary under the
United States bankruptcy laws or any other applicable federal or
state law, or (iii) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of
the Company or any Material Subsidiary or of any substantial part
of the Property of any thereof, or (iv) ordering the winding up
or liquidation of the affairs of the Company or any Material
Subsidiary and any such decree or order continues unstayed and in
effect for a period of 60 days; or
(h) Judgments or decrees against the Company or any Subsidiary
in an aggregate amount in excess of $5,000,000 shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of 30 days; or
51
(i) A Reportable Event shall occur or the commencement of
proceedings to terminate a Plan has resulted or could reasonably
be expected to result in liability of the Company under Title IV
of ERISA to the Plan or PBGC in an aggregate amount which is
material to the consolidated financial condition of the Company
and its Consolidated Subsidiaries; or
(j) With respect to any multiemployer Plan as to which the
Company or any Related Person may have any liability, there shall
occur a complete or partial withdrawal resulting in a liability
of the Company that is material to the consolidated financial
condition of the Company and its Consolidated Subsidiaries and
either (y) such liability or any portion thereof is not paid
within thirty days after it becomes due and payable or (z)
payment of such liability according to its terms is likely to
result in a material adverse effect on the business or operations
of the Company and its Consolidated Subsidiaries; or
(k) There shall occur a Change of Control.
Upon the occurrence of an Event of Default described in
Sections 13.1(f) or 13.1(g), the Commitments and the Bid Loan
Facility shall automatically terminate and the obligations of the
Company under this Agreement and all of the Credit Documents
shall become immediately and automatically due and payable
without declaration or notice to the Company. During the
existence of any other Event of Default, the Administrative
Agent, at the direction of the Majority Banks, shall notify the
Company that the Commitments have been terminated and/or that the
obligations of the Company under this Agreement and all of the
Credit Documents have been declared immediately due and payable
in which event the Commitments and the Bid Loan Facility shall be
terminated and/or the obligations of the Company under this
Agreement and all of the Credit Documents shall be immediately
due and payable. Except for the notice provided for in the
preceding sentence, the Company hereby expressly waives any
presentment, demand, protest, notice of protest or other notice
of any kind. The Company hereby further expressly waives and
covenants not to assert any appraisement, valuation, stay,
extension, redemption or similar laws, now or at any time
hereafter in force which might delay, prevent or otherwise impede
the performance or enforcement of this Agreement or the Credit
Documents. Whenever the maturity of the Credit Documents shall
have accelerated or been declared accelerated pursuant to the
provisions of this Section 13.1, the Company will promptly
deposit with the Administrative Agent funds as required by
Section 7.7.
If the Commitments and the Bid Loan Facility shall have
been terminated or the obligations of the Company under this
Agreement and all of the Credit Documents shall have been
declared due and payable pursuant to the provisions of this
Section 13.1, the Banks agree, by and among themselves, that any
funds received after such termination from or on behalf of the
Company in respect of this Agreement or any Credit Document by
the Administrative Agent or any of the Banks (except funds
received by any Bank as a result of a purchase pursuant to the
provisions of Section 16) shall be remitted to the Administrative
Agent if received by any Bank and applied by the Administrative
Agent in the following manner and order:
(i) first, to reimburse the Administrative Agent
and the Banks for any expenses due from the Company pursuant
to the provisions of Section 19;
52
(ii) second, to the payment (pro rata according to the
Revolving Commitments) of the Facility Fee accrued pursuant
to the provisions of Section 7.12;
(iii) third, to the payment of, without duplication,
the funds obligation as required by Section 7.7 and all
outstanding Acceptance Obligations;
(iv) fourth, to the payment to each Bank of accrued
and unpaid interest on the outstanding Loans, ratably in
the proportion which the aggregate accrued and unpaid interest
on the outstanding Loans payable to such Bank bears to the then
aggregate accrued and unpaid interest on all outstanding Loans
payable to any and all of the Banks;
(v) fifth, to the payment to each Bank of the outstanding
unpaid principal balance of the Loans ratably as provided in
clause (b) of the definition of Excess Payment, in such order
as the Administrative Agent in its sole discretion may determine;
and
(vi) sixth, to the payment to each Bank and the Administrative
Agent of any other amount owing under this Agreement or any of
the Credit Documents.
If the obligations of the Company under this Agreement
or any of the Credit Documents shall have been declared due and
payable pursuant to the provisions of this Section 13.1, the
Administrative Agent may, and, upon (a) the direction of the
Majority Banks and (b) the providing by all of the Banks to the
Administrative Agent of an indemnity in form and substance
satisfactory to the Administrative Agent against all expenses and
liabilities, shall proceed to enforce the rights of the holders
of the Credit Documents and the Acceptance Obligations by suit in
equity, action at law and/or other appropriate proceedings,
whether for payment or the specific performance of any covenant
or agreement contained in this Agreement or the Credit Documents.
The Administrative Agent shall be justified in failing or
refusing to take any action hereunder unless it shall be
indemnified to its satisfaction by the Banks in their respective
Pro Rata Share against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take
any such action. In the event that the Administrative Agent,
having been so indemnified, or not being indemnified to its
satisfaction, shall fail or refuse so to proceed, any Bank shall
be entitled to take such action as it shall deem appropriate to
enforce its rights hereunder and under the Credit Documents and
Acceptance Participations held by it.
13.2 Waiver of Defaults. Except as otherwise specifically
provided by the provisions hereof, the Administrative Agent shall
(only if authorized by the Majority Banks, or in the event of a
default in the payment of principal or interest if authorized by
all of the Banks), by written notice to the Company on behalf of
the Banks, at any time and from time to time, waive in whole or
in part, and absolutely or conditionally, any Event of Default
which shall have occurred hereunder or under the Credit
Documents. Any such waiver shall be for such period and subject
to such conditions or limitations as shall be specified in any
such notice. In the case of any such waiver, the rights of the
Company, the Banks and the Administrative Agent under this
Agreement and the Credit Documents shall be otherwise unaffected,
and any Event of Default so waived shall be deemed to be cured
53
and not continuing to the extent and on the conditions or
limitations set forth in such waiver, but no such waiver shall
extend to any subsequent or other Event of Default, or impair any
right, remedy or power consequent thereupon. The Company may
take any action prohibited, or omit to perform any act required
to be performed, under this Agreement and the Credit Documents if
it shall have obtained the written waiver with respect thereto
signed by the Administrative Agent and containing a
representation therein that such waiver has been authorized in
accordance with the provisions of this Section 13.2 and Section
17.
14. THE AGENTS
The Banks, the Administrative Agent and the Syndication
Agent agree by and among themselves that:
14.1 Appointment. U.S. Bank National Association is hereby
designated the Administrative Agent by each of the other Banks to
perform such duties on behalf of the other Banks and itself, and
to have such powers, as are set forth herein and as are
reasonably incidental thereto.
14.2 Delegation of Duties, Etc. The Administrative Agent may
execute any of its duties and perform any of its powers hereunder
by or through agents or employees, and shall be entitled to
consult with legal counsel and any accountant selected by it.
Any action taken or omitted to be taken or suffered in good faith
by either Agent in accordance with the opinion of its counsel or
accountant shall be full justification and protection to it.
Under no circumstances whatsoever shall the Syndication Agent
have any right, power, obligation, liability, responsibility or
duty hereunder other than those applicable to all Banks as such.
Each Bank acknowledges that it has not relied, and will not rely,
on the Syndication Agent in deciding to enter into this Agreement
or in taking or not taking action hereunder.
14.3 Indemnification. The Banks hereby indemnify and agree to
reimburse both Agents in their capacities as such, to the extent
not indemnified or reimbursed by the Company, according to their
Pro Rata Shares, for, from and against any and all claims,
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable
legal fees and the reasonable allocable cost of inside counsel)
which may be imposed on, incurred by, or asserted against either
Agent in any way relating to or arising out of this Agreement or
the Credit Documents or any action taken or omitted to be taken
or suffered in good faith by either Agent under or in connection
with this Agreement or any Credit Document; provided that no Bank
shall be liable for any portion of any of the foregoing items for
either Agent resulting from the gross negligence or willful
misconduct of such Agent.
14.4 Exculpatory Provisions. Neither Agent nor any of their
respective officers, directors, employees or agents shall be
liable for any action taken or omitted to be taken or suffered by
it or them hereunder or in connection herewith, except that each
Agent shall be liable for its own gross negligence or willful
misconduct. Neither Agent shall be liable in any manner for the
effectiveness, enforceability, collectibility, genuineness,
validity or the due execution (other than its own due execution
and delivery) of this Agreement or any Credit Document or for the
54
due authorization, authenticity or accuracy of the
representations and warranties of any other Person herein and
therein or in any other certificate, report, notice, consent,
opinion, statement, or other document furnished or to be
furnished hereunder or thereunder, and either Agent shall be
entitled to rely upon any of the foregoing reasonably believed by
it to be genuine and correct and to have been signed and sent or
made by the proper Person. Neither Agent shall be under any duty
or responsibility to any Bank to ascertain or to inquire into the
validity, genuineness, enforceability or due execution (other
than its own due execution and delivery) of this Agreement or any
Credit Document or the performance or observance by the Company
or any Subsidiary of any of the provisions hereof or thereof.
Each Bank expressly acknowledges that neither Agent, nor the
Arranger, has made any representations or warranties to it and
that no act taken by either Agent shall be deemed to constitute
any representation or warranty by either Agent to any Bank. The
Administrative Agent shall be fully protected in acting or
refraining from acting upon the instructions of the Majority
Banks (or all the Banks, if all Banks are specifically required
to consent thereto pursuant to Section 17). Neither Agent shall
be required to take any action that exposes it to personal
liability or is contrary to this Agreement, any Credit Document,
or applicable law. Each Bank acknowledges that it has taken and
will continue to take such action and to make such investigation
as it deems necessary to inform itself of the affairs of the
Company and each Subsidiary, and each Bank acknowledges that it
has made and will continue to make its own independent
investigation of the creditworthiness and the business and
operations of the Company and each Subsidiary, and that, in
entering into this Agreement, and in making its Credit
Extensions, it has not relied and will not rely upon any
information or representations furnished or given by either
Agent, the Arranger or any Bank.
14.5 Agents in Their Individual Capacity. With respect to all
Credit Extensions made by them and any renewals, extensions or
deferrals of the payment thereof and any Credit Document issued
to or held by it, each Agent shall have the same rights and
powers hereunder as any Bank, and may exercise the same as though
it were not an Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise requires, include each Agent in its
individual capacity.
14.6 Knowledge of Default. The Administrative Agent shall be
entitled to assume that no Default or Event of Default exists,
unless the officers of the Administrative Agent immediately
responsible for matters concerning this Agreement shall have
actual knowledge of such occurrence or shall have been notified
in writing by a Bank or the Company that such Bank or the Company
considers that an Event of Default exists and specifying the
nature thereof.
14.7 Resignation and Removal of Administrative Agent.
(a) The Administrative Agent may, by written notice to
the Banks and the Company, at any time resign its agency under
this Agreement. No such resignation shall become effective
unless and until a successor Administrative Agent under this
Agreement is appointed, such successor to be appointed by the
Majority Banks with prior written consent of the Company;
provided, that if no successor Administrative Agent shall have
been so appointed by the Majority Banks with prior written consent
of the Company, and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent
may appoint any Bank a successor Administrative Agent which
55
successor Administrative Agent shall be deemed to be acceptable
to the Majority Banks and the Company. The Syndication Agent
may, by written notice to the Banks and the Company, at any time
resign as Syndication Agent under this Agreement and such
resignation shall become effective immediately.
(b) The Majority Banks may, by 30 days' advance written notice
to the Administrative Agent, the Banks and the Company, replace
the Administrative Agent at any time. No such replacement shall
become effective unless and until a successor Administrative
Agent under this Agreement is appointed, such successor to be
appointed by the Majority Banks with prior written consent of the
Company.
(c) Upon the acceptance of any appointment as Administrative
Agent by a successor Administrative Agent pursuant to Section
14.7(a) or Section 14.7(b), such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations, under this Agreement. After the
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, or the retiring Syndication Agent's
resignation hereunder as Syndication Agent, (i) each reference
herein to a place for giving of notice or deliveries to the
Administrative Agent shall be deemed to refer to the principal
office of the successor Administrative Agent or such other office
of the successor Administrative Agent as it may specify to each
party hereto, and (ii) the provisions of this Section 14 shall
inure to the benefit of the retiring Administrative Agent or the
retiring Co- Agent as to any actions taken or omitted to be taken
by such retiring Administrative Agent or the retiring Syndication
Agent while it was Administrative Agent or Syndication Agent
under this Agreement, as the case may be.
14.8 Requests to the Administrative Agent. Except as otherwise
expressly provided herein, whenever the Administrative Agent is
authorized and empowered hereunder on behalf of the Banks to give
any approval or consent, or to make any request, or to take any
other action on behalf of the Banks, the Administrative Agent
shall be required to give such approval or consent, or to make
such request or to take such other action only when so requested
in writing by the Majority Banks.
14.9 Other Dealings. Each Agent (as a Bank) and any Bank (and
its affiliates), subject to the provisions of Section 16 may,
without liability to account, accept deposits from, lend money to
and generally engage in any kind of banking or other business
with the Company or any other Person.
14.10 Calculations. The Administrative Agent shall not be
liable for any error in computing the amount payable to any Bank
whether in respect of the Credit Extensions, fees or any other
amounts due to the Banks under this Agreement, absent gross
negligence or willful misconduct. In the event an error in
computing any amount payable to any Bank is made, the
Administrative Agent, the Company and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as
shall be required to correct such error.
56
14.11 Availability of Funds. Unless the Administrative Agent
shall have been notified by a Bank prior to any proposed Credit
Extension hereunder that such Bank does not intend to make
available to the Administrative Agent such Bank's Pro Rata Share
of any Committed Loan to be made on such date or any other sum
required to be made available to the Administrative Agent by such
Bank hereunder, the Administrative Agent may assume that such
Bank has made such proceeds available to the Administrative Agent
on such date and by the time specified herein, and the
Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to the Company a
corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such amount on
demand from such Bank (or, if such Bank fails to pay such amount
forthwith upon such demand, from the Company) together with
interest thereon in respect of each day during the period
commencing on the date such amount was made available to the
Company and ending on (but excluding) the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) the
Federal Funds Rate if such amount is paid within one Business Day
of the date it was to be made available to the Administrative
Agent, or (ii) if such amount is not so paid within one Business
Day, the applicable interest rate in respect of such Credit
Extension. If any amount required to be made available by the
Administrative Agent to any Bank is not in fact made available to
such Bank by the Administrative Agent, such Bank shall be
entitled to recover such amount on demand from the Administrative
Agent, together with interest thereon in respect of each day
during the period commencing on the date such amount was made
available to the Administrative Agent and ending on (but
excluding) the date such Bank recovers such amount at a rate per
annum equal to the Federal Funds Rate.
15. NOTICES
15.1 Notices, Etc. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands,
instructions and other communications required or permitted to be
given to or made upon any party hereto shall be in writing and
(except for financial statements and other documents to be
provided pursuant to Section 11.6 (with the exception of notices
of the occurrence of an Event of Default or a Default which is
continuing), which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by certified mail,
postage prepaid, return receipt requested, or by telecopier, and
shall be deemed to be given for purposes of this Agreement on the
day that such writing is delivered or sent to the intended
recipient thereof in accordance with the provisions of this
Section 15.1. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this
Section 15.1, notices, demands, instructions and other
communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to
their respective telecopier numbers) indicated on Schedule 1
hereto, and in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party
on such Schedule.
15.2 Notices by Administrative Agent or a Bank. In the event
that the Administrative Agent or any Bank takes any action or
gives any consent or notice provided for by this Agreement,
notice of such action, consent or notice shall be given forthwith
57
to all the Banks by the Administrative Agent or the Bank taking
such action or giving such consent or notice, provided, that the
failure to give any such notice shall not invalidate any such
action, consent or notice in respect of the Company.
15.3 Telephonic Notices, Authority to Act. The Company
acknowledges and agrees that the agreement of the Administrative
Agent herein to receive certain notices by telephone is solely
for the convenience of the Company. The Administrative Agent
shall be entitled to rely on the authority of the person
purporting to be the person authorized by the Company to give
such notice, and the Administrative Agent shall have no liability
to the Company on account of any action taken by the
Administrative Agent in reliance upon such telephonic notice.
The obligations of the Company to repay the Credit Extensions
shall not be affected in any way or to any extent by any failure
by the Administrative Agent to receive written confirmation of
any telephonic notice or the receipt by the Administrative Agent
of a confirmation which is at variance with the terms understood
by the Administrative Agent to be contained in the telephonic
notice.
16. EXCESS PAYMENTS
If any Bank or other holder of an obligation of the
Company hereunder shall at any time receive any Excess Payment,
then such Bank or other holder of an obligation of the Company
hereunder shall purchase, without recourse, for cash, from each
of the other Banks or other holders of an obligation of the
Company hereunder, such participation in the Notes, Acceptances,
Acceptance Obligations and other indebtedness under this
Agreement, as the case may be, held by such other Banks or other
holders of an obligation of the Company hereunder as shall be
necessary to cause such Excess Payment to be shared ratably such
that no Bank or other holder of an obligation of the Company
hereunder shall retain any Excess Payment. In the event that at
any time any Bank or other holders of an obligation of the
Company hereunder shall be required to refund any Excess Payment,
then, upon notice from such Bank, or other holder of an
obligation of the Company hereunder, each of the other Banks or
other holders of an obligation of the Company hereunder shall
purchase, without recourse, its portion for cash, to the extent
of its ratable share thereof, of the Credit Extensions held by
the Bank or other holder of an obligation of the Company
hereunder required to make such refund.
17. AMENDMENTS AND WAIVERS
With the written consent of the Majority Banks, the
Administrative Agent and the Company may, subject to the
provisions of this Section 17, from time to time enter into
agreements amendatory or supplemental hereto for the purpose of
changing any provisions of this Agreement or the Credit
Documents, or changing in any manner the rights of the Banks, the
Agents or the Company hereunder and thereunder, or waiving
compliance with any provision hereof or thereof. No such
amendatory or supplemental agreement or waiver shall, directly or
indirectly, without the written consent of all of the Banks
directly affected thereby, (a) change the Aggregate Revolving
Commitment or the Commitment of any Bank (except for pro-rata
decreases in the Commitments provided for herein), (b) change the
maturity of any Credit Extension, any Acceptance Obligation, this
58
Agreement or any Credit Document or extend the Revolving Credit
Termination Date, the Acceptance Availability Termination Date or
the Maturity Date, or reduce the rate of interest on, change the
time or manner of payment of, or the principal amount of, or any
accrued interest on, any Credit Extension, any Acceptance
Obligation, this Agreement or any Credit Document, (c) change the
amount of any fee or the time of payment thereof, (d) change the
definitions of "Majority Banks," or "Pro Rata Share" (e) modify
the provisions of Sections 9 or 10, or (f) modify the provisions
of this Section 17. Any such amendatory or supplemental
agreement or waiver shall apply equally to each of the Banks or
other holders of an obligation of the Company hereunder and shall
be binding on the Company and all of the Banks and other holders
of an obligation of the Company hereunder and the Administrative
Agent and Syndication Agent. No provision hereof relating to the
Administrative Agent or the Syndication Agent shall be amended,
modified, or waived without the written consent of the Agent
affected thereby. The Company shall be entitled to rely upon the
provisions of any such amendatory or supplemental agreement or
waiver if it shall have obtained any of the same in writing from
the Administrative Agent who therein shall have represented that
such agreement or waiver has been authorized in accordance with
the provisions of this Section 17.
18. OTHER PROVISIONS
18.1 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Company
may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each
Bank (and any attempted assignment or transfer by the Company
without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Bank may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Bank's
Commitment and the Loans at the time owing to it or in the case
of an assignment to a Bank or an Affiliate of a Bank or an
Approved Fund with respect to a Bank, the aggregate amount of the
Commitment (which for this purpose include Loans outstanding
thereunder) subject to each such assignment, determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent, shall not be
less than $5,000,000 unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing,
the Company otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Bank's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of outstanding
Bid Loans, and (iii) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment
59
and Acceptance, the Eligible Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a
Bank under this Agreement, and the assigning Bank thereunder
shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but
shall continue to be entitled to the benefits of Article 19.
Upon request, the Company shall execute and deliver new or
replacement Notes to the assigning Bank and the assignee Bank.
Any assignment or transfer by a Bank of rights or obligations
under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as
an agent of the Company, shall maintain at the Administrative
Agent's office a copy of each Assignment and Acceptance delivered
to it and a register for the recordation of the names and
addresses of the Banks, and the Commitments of, and principal
amount of the Loans owing to, each Bank pursuant to the terms
hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Company, the Agents and the
Banks may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Company and any Bank, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Bank may, without the consent of, or notice to, the
Company or the Administrative Agent, sell participations to one
or more banks or other entities (a "Participant") in all or a
portion of such Bank's rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or
the Loans owing to it); provided that (i) such Bank's obligations
under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Company, the Agents
and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement or instrument
pursuant to which a Bank sells such a participation shall provide
that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without the
consent of the Participant, agree to any amendment, waiver or
other modification that would (i) postpone any date upon which
any payment of money is scheduled to be paid to such Participant,
(ii) extend the Maturity Date with respect to such Participant or
(iii) reduce the principal, interest, fees or other amounts
payable to such Participant. Subject to subsection (e) of this
Section, the Company agrees that each Participant shall be
entitled to the benefits of Sections 7.1(b), 7.3, 7.8, 7.9 and
7.11 to the same extent as if it were a Bank and had acquired its
interest by assignment pursuant to subsection (b) of this
Section.
60
(e) A Participant shall not be entitled to receive any greater
payment under Section 7.1(b), 7.3, 7.8, 7.9 and 7.11 than the
applicable Bank would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Company's
prior written consent.
(f) Any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
(including under its Notes, if any) to secure obligations of such
Bank, including any pledge or assignment to secure obligations to
a Federal Reserve Bank; provided that no such pledge or
assignment shall release a Bank from any of its obligations
hereunder or substitute any such pledge or assignee for such Bank
as a party hereto.
(g) If the consent of the Company to an assignment or to an
Eligible Assignee is required hereunder (including a consent to
an assignment which does not meet the minimum assignment
threshold specified in clause (i) of the proviso to the first
sentence of Section 18.1(b), the Company shall be deemed to have
given its consent five Business Days after the date notice
thereof has been delivered by the assigning Bank (through the
Administrative Agent) unless such consent is expressly refused by
the Company prior to such fifth Business Day.
(h) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Bank; (b) an
Affiliate of a Bank; (c) an Approved Fund; and (d) any
other Person (other than a natural Person) approved by
the Administrative Agent and, unless (x) such Person is
taking delivery of an assignment in connection with
physical settlement of a credit derivatives transaction
or (y) an Event of Default has occurred and is
continuing, the Company (each such approval not to be
unreasonably withheld or delayed).
"Fund" means any Person (other than a natural
Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in
the ordinary course of its business.
"Approved Fund" means any Fund that is
administered or managed by (a) a Bank, (b) an Affiliate
of a Bank or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
18.2 No Waiver of Rights by the Banks. No failure on the part of
the Administrative Agent or of any Bank to exercise, and no delay
in exercising, any right or remedy hereunder or under the Credit
Documents shall operate as a waiver thereof, except as provided
in Section 17, nor shall any single or partial exercise by the
Administrative Agent or any Bank of any right, remedy or power
hereunder or thereunder preclude any other or future exercise
thereof, or the exercise of any other right, remedy or power.
The rights, remedies and powers provided herein and in the Credit
Documents are cumulative and not exclusive of any other rights,
remedies or powers which the Administrative Agent or the Banks or
any holder of a Credit Document would otherwise have. Notice to
or demand on the Company in any circumstance in which the terms
of this Agreement or the Credit Documents do not require notice
or demand to be given shall not entitle the Company to any other
61
or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or
any Bank or the holder of any Credit Document to take any other
or further action in any circumstances without notice or demand.
18.3 Headings; Plurals. Section headings have been inserted
herein for convenience only and shall not be construed to be a
part hereof. Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural
include the singular.
18.4 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of
which shall constitute one agreement. It shall not be necessary
in making proof of this Agreement or of any document required to
be executed and delivered in connection herewith or therewith to
produce or account for more than one counterpart if signed by the
party against whom the Agreement is being enforced.
18.5 Severability. Every provision of this Agreement and the
Credit Documents is intended to be severable, and if any term or
provision hereof or thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions hereof or thereof
shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall not
affect the validity, legality or enforceability of any such term
or provision in any other jurisdiction.
18.6 Integration. All exhibits to this Agreement shall be deemed
to be a part of this Agreement. This Agreement, the exhibits
hereto, the Credit Documents, the Fee Letters and the documents
and instruments furnished in connection herewith and therewith
from time to time embody the entire agreement and understanding
between the Company, the Administrative Agent, the Syndication
Agent and the Banks with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings
between the Company and the Administrative Agent, Syndication
Agent and the Banks with respect to the subject matter hereof and
thereof.
18.7 Successors and Assigns; Survival of Representations and
Warranties. This Agreement shall be binding upon and inure to
the benefit of the Banks, the Administrative Agent, Syndication
Agent and the Company and their respective successors and
assigns, provided, however, that the Company may not assign or
otherwise dispose of any of its rights or obligations hereunder
except as provided in Section 12.9. The Administrative Agent may
assign its agency to another institution wholly owned by or under
common ownership with the Administrative Agent upon notice to all
parties hereto. All covenants, agreements, warranties and
representations made herein and in all certificates or other
documents delivered in connection with this Agreement by or on
behalf of the Company shall survive the execution and delivery
hereof and thereof, and all such covenants, agreements,
representations and warranties shall inure to the benefit of the
respective successors and assigns of the Banks, Syndication Agent
and the Administrative Agent whether or not so expressed.
18.8 APPLICABLE LAW; WAIVER OF TRIAL BY JURY. THIS AGREE-MENT
AND THE CREDIT DOCUMENTS SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
62
STATE OF ILLINOIS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS. THE COMPANY, EACH BANK AND THE ADMINISTRATIVE AGENT EACH
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTER-CLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
18.9 Interest. At no time shall the interest rate payable on, or
Discount Charge or Acceptance Commission with respect to, the
Credit Documents, together with the Facility Fee to the extent
the same is construed to constitute interest, exceed the maximum
rate of interest permitted by law.
18.10 Confidentiality. Each Bank shall maintain in
confidence and not publish, disseminate or disclose in any manner
or to any Person and shall not use (x) any material nonpublic
information relating to the Company and its Subsidiaries or (y)
any technical, nonfinancial information, data or know-how which
is identified as confidential by the Company, in either case
which may be furnished pursuant to this Agreement, including any
such information which may be furnished pursuant to Section 11.7
(hereinafter collectively called "Confidential Information"),
subject to each Bank's (a) obligation to disclose any such
Confidential Information pursuant to a request or order under
applicable laws and regulations or pursuant to a subpoena or
other legal process, (b) right to disclose any such nontechnical
or financial Confidential Information to bank examiners or any
bank regulatory agency having jurisdiction over such Bank, its
affiliates, auditors, counsel, other professional advisors and
other Banks, (c) right to use any such Confidential Information
in connection with the transactions set forth herein including,
but not limited to, assignments or the sale of participations as
provided in Section 18.1; provided, that any participant or
assignee or prospective participant or assignee to whom
Confidential Information shall be disclosed shall have agreed to
be bound by the provisions of this Section 18.10 and (d) right to
disclose any such Confidential Information in connection with the
transactions set forth herein or in connection with any
litigation or dispute involving the Banks and the Company or any
of its Subsidiaries or any transfer or other disposition by such
Bank of any of its Loans or other extensions of credit to the
Company or any of its Subsidiaries; provided, however, that
Confidential Information disclosed pursuant to clause (b) or (d)
of this sentence shall be so disclosed subject to such procedures
as are reasonably calculated to maintain the confidentiality
thereof; and provided, further, that Confidential Information
disclosed pursuant to applicable laws, regulations, subpoenas or
other legal process shall be so disclosed subject to such
confidentiality provisions, if any, as may be provided under
applicable law. The Banks agree, to the extent permitted by
applicable law, to use their best efforts promptly to notify the
Company in writing of each order, subpoena or other legal process
providing for the disclosure and/or production of Confidential
Information and shall, to the extent permitted by applicable law,
use their best efforts promptly to supply the Company with a copy
of such order, subpoena or other legal process in order that the
Company may intervene in the relevant administrative or legal
proceeding or take other appropriate legal action to protect the
confidentiality of such Confidential Information.
Notwithstanding the foregoing provisions of this Section 18.10,
(i) the foregoing obligation of confidentiality shall not apply
to any such Confidential Information that was known to such Bank
or any of its affiliates, as evidenced by written records, prior
to the time it received such Confidential Information from the
Company or its Subsidiaries pursuant to this Agreement, other
than as a result of the disclosure thereof by a Person who, to
63
the knowledge or reasonable belief of such Bank, was prohibited
from disclosing it by any duty of confidentiality arising (under
this Agreement or otherwise) by contract or law; and (ii) the
foregoing obligation of confidentiality shall not apply to any
such Confidential Information that becomes part of the public
domain independently of any act of such Bank not permitted
hereunder (through publication, the issuance of a patent
disclosing such information or otherwise) or when identical or
substantially similar information is received by such Bank
without restriction as to its disclosure or use, from a Person
who, to the knowledge or reasonable belief of such Bank, was not
prohibited from disclosing it by any duty of confidentiality
arising (under this Agreement or otherwise) by contract or law.
18.11 Banks' Representations. Except as contemplated by
Section 18.1, each Bank represents to the Administrative Agent
and the Company that, in acquiring its Credit Documents
hereunder, it is acquiring same for its own account for the
purpose of investment and not with a view to selling the same in
connection with any distribution thereof (as such term is used in
the Securities Act of 1933, as amended), provided that the
disposition of each Bank's own property shall at all times be and
remain within its control.
18.12 Change in Accounting Principles. If any changes in
accounting principles from those used in the preparation of the
Financial Statements referred to in Section 8.8 hereafter
occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) result in a change in the method of
calculation of financial covenants, standards or terms found in
Sections 1, 11 and 12, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria
for evaluating the financial condition of the Company and its
Subsidiaries shall be the same as if such changes had not been
made.
18.13 Reference Banks. Each Reference Bank agrees to use its
best efforts to furnish quotations to the Administrative Agent as
contemplated hereby by 10:00 a.m. (Minneapolis time), on the day
such quotations are required to be furnished hereunder. If any
Reference Bank assigns or otherwise transfers its Credit
Documents to an unaffiliated institution, the Administrative
Agent shall, in consultation with the Company, and with the
consent of the Majority Banks, appoint another Bank to act as a
Reference Bank hereunder; provided, that at all times at least
one Reference Bank shall be a Bank organized and existing under
the laws of the United States or any state.
18.14 Transfer of Credit Documents. In the event that the
holder of any Credit Document (including any Bank) shall transfer
such Credit Document pursuant to Section 18.1, it shall
immediately advise the Administrative Agent and the Company of
such transfer; provided, however, that the Company shall not be
liable for any material increase in the amount which would have
been payable by the Company under this Agreement and the Credit
Documents in the absence of such transfer; and provided, further,
that the Administrative Agent and the Company shall be entitled
conclusively to assume that no transfer of any Credit Document
has been made by any holder (including any Bank), unless and
until the Administrative Agent and the Company shall have
received written notice to the contrary. Subject to the
provisions of Section 18.1, no Bank shall, by reason of the
transfer of any Credit Document or otherwise, be relieved of any
64
of its obligations hereunder. Each transferee of any Credit
Document shall take such Credit Document subject to the
provisions of this Agreement and to any request made, waiver or
consent given or other action taken hereunder, prior to the
receipt by the Administrative Agent and the Company of written
notice of such transfer, by each previous holder of such Credit
Document; and, except as expressly otherwise provided in such
notice, the Administrative Agent and the Company shall be
entitled conclusively to assume that the transferee named in such
notice shall thereafter be vested with all rights and powers
under this Agreement of the Bank named as the payee of the Credit
Document which is the subject of such transfer.
18.15 CONSENT TO JURISDICTION. ALL ACTIONS OR PROCEEDINGS
WITH RESPECT TO THIS AGREEMENT MAY BE INSTITUTED IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF EACH SUCH COURT, AND IRREVOCABLY AND
UNCONDITIONALLY WAIVES (A) ANY OBJECTION THE COMPANY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY OF SUCH COURTS, AND
(B) ANY CLAIM THAT ANY ACTION OR PROCEEDING BROUGHT IN ANY OF
SUCH COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
COMPANY AGREES THAT SO LONG AS THE COMPANY SHALL BE OBLIGATED TO
THE BANKS UNDER THIS AGREEMENT, THE COMPANY SHALL MAINTAIN DULY
APPOINTED AGENTS REASONABLY SATISFACTORY TO THE ADMINISTRATIVE
AGENT FOR THE SERVICE OF PROCESS IN ILLINOIS, AND SHALL KEEP THE
ADMINISTRATIVE AGENT ADVISED IN WRITING OF THE IDENTITY AND
LOCATION OF SUCH AGENTS. THE FAILURE OF SUCH AGENTS TO GIVE
NOTICE TO THE COMPANY OF ANY SUCH SERVICE SHALL NOT IMPAIR OR
AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT RENDERED
IN ANY ACTION OR PROCEEDING BASED THEREON.
19. COSTS
19.1 Costs and Expenses. The Company agrees (a) to pay or
reimburse each Agent for all reasonable costs and expenses
incurred in connection with the development, preparation,
negotiation and execution of this Agreement and any amendment,
waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated hereby
or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and
thereby, including all reasonable attorneys' fees, and (b) to pay
or reimburse each Agent and each Bank for all reasonable costs
and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all
such costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal
proceeding, including all attorneys' fees. The foregoing costs
and expenses shall include all reasonable search, filing,
recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred
by the Agents and the cost of independent public accountants and
other outside experts retained by any Agent or Bank. The
65
agreements in this Section shall survive the termination of the
Commitments and repayment of all the Loans.
19.2 Taxes. The Company agrees to pay all stamp, transfer and
other taxes payable or determined to be payable in connection
with the execution and delivery of this Agreement. The Company
shall pay all such taxes payable or determined to be payable in
connection with the issuance of its Credit Documents and the
making of any Credit Extension, and the Company agrees to save
and hold the Administrative Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from
any delay in paying or omission to pay such taxes.
19.3 Indemnification by the Company. Whether or not the
transactions contemplated hereby are consummated, the Company
agrees to indemnify, save and hold harmless each Agent, each Bank
and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims,
demands, actions or causes of action that are asserted against
any Indemnitee by any Person (other than the Administrative Agent
or any Bank) relating directly or indirectly to a claim, demand,
action or cause of action that such Person asserts or may assert
against the Company, any Affiliate of the Company or any of their
respective officers or directors; (b) any and all claims,
demands, actions or causes of action that may at any time
(including at any time following repayment of the Loans and the
resignation or removal of the Administrative Agent or the
replacement of any Bank) be asserted or imposed against any
Indemnitee, arising out of or relating to, this Agreement, any
predecessor loan documents, the Commitments, the use or
contemplated use of the proceeds of any Credit Extension, or the
relationship of the Company, the Agents and the Banks under this
Agreement; (c) any administrative or investigative proceeding by
any Governmental Body arising out of or related to a claim,
demand, action or cause of action described in subsection (a) or
(b) above; and (d) any and all liabilities (including liabilities
under indemnities and liabilities of any Bank pursuant to Section
14.3), losses, costs or reasonable expenses (including attorneys'
fees) that any Indemnitee suffers or incurs as a result of the
assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense
in connection with any foregoing claim, demand, action, cause of
action or proceeding, in all cases, whether or not arising out of
the negligence of an Indemnitee, and whether or not an Indemnitee
is a party to such claim, demand, action, cause of action of
proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any claim caused by its own gross negligence
or willful misconduct or for any loss asserted against it by
another Indemnitee. The agreements in this Section shall survive
the termination of the Commitments and repayment of all the
Loans.
19.4 Survival. The obligations of the Company under this Section
19 shall survive the repayment of the Credit Extensions and the
payment of all other sums due under this Agreement.
66
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
IBP, inc., a Delaware
corporation
By:____________________________
Name:__________________________
Its:___________________________
67
BANK OF AMERICA, N.A.,
individually and as
Syndication Agent
By:___________________________
Name:_________________________
Its:__________________________
68
U.S. BANK NATIONAL
ASSOCIATION, individually and
as Administrative Agent
By:__________________________
Name:________________________
Its:_________________________
00
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX XX, XX BRANCH
By:__________________________
Name:________________________
Its:_________________________
70
BANK HAPOALIM
By:__________________________
Name:________________________
Its:_________________________
71
BHF (USA) CAPITAL CORPORATION
By:_________________________
Name:_______________________
Its:________________________
72
THE FUJI BANK, LIMITED
By:_________________________
Name:_______________________
Its:________________________
00
XXX XXXX XX XXX XXXX
By:________________________
Name:______________________
Its:_______________________
00
XXX XXXX XX XXXX XXXXXX
By:_________________________
Name:_______________________
Its:________________________
75
THE SUMITOMO BANK, LIMITED
By:_________________________
Name:_______________________
Its:________________________
76
THE SAKURA BANK, LIMITED
By:_________________________
Name:_______________________
Its:________________________
77
RZB FINANCE LLC
By:_________________________
Name:_______________________
Its:________________________
78
BNP PARIBAS
By:_________________________
Name:_______________________
Its:________________________
00
XXX XXXXX XXXX, XXXXXXX - XXX
XXXX BRANCH
By:_________________________
Name:_______________________
Its:________________________
80
CIBC INC.
By:_________________________
Name:_______________________
Its:________________________
81
CoBANK, ACB
By:_________________________
Name:_______________________
Its:________________________
00
XXX XXXXX XXXX
By:_________________________
Name:_______________________
Its:________________________
83
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND
By:_________________________
Name:_______________________
Its:________________________
84
THE BANK OF TOKYO-MITSUBISHI
LTD., CHICAGO BRANCH
By:_________________________
Name:_______________________
Its:________________________
00
XXX XXX-XXXX XXXXXX XXXX, LTD.
By:_________________________
Name:_______________________
Its:________________________
00
XXXXX XXXXXXXXX XXX XXXXXX
X.x.X., XXX XXXX BRANCH
By:________________________
Name:______________________
Its:_______________________
87
CREDIT LYONNAIS CHICAGO
BRANCH
By:_______________________
Name:_____________________
Its:______________________
88
THE SANWA BANK, LIMITED
By:_______________________
Name:_____________________
Its:______________________
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By:_______________________
Name:_____________________
Its:______________________
90
SUNTRUST BANK
By:_______________________
Name:_____________________
Its:______________________
91
SCHEDULE 1
NOTICE INFORMATION
ADDRESS, TELEPHONE, TELEX AND
PARTY TELECOPIER NUMBERS
If to IBP, inc.: IBP, inc.
000 Xxxxxxxxxxx Xx.
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Treasurer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Wire Transfer Instructions:
U.S. Bank National Association,
Minneapolis, Minnesota
ABA #000000000
for credit to: IBP, inc.
A/C #1502-5009-9937
Reference: Committed Facility
If to U.S. Bank National U.S. Bank National Association
Association: 000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxx
Title: Vice President
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Wire Transfer Instructions:
U.S. Bank, N.A.
Portland, Oregon
ABA #000000000
c/o Commercial Loan Service Center
- West
Account #003 400 00000000
Ref: IBP, inc.
Attn: Xxxxx Xxxxxx
Schedule 1-1
If to Bank of America, Bank of America, N.A.
N.A.: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Xxxxxxxxxx.Xx.: (000) 000-0000
Wire Transfer Instructions:
ABA #000000000
Acct. 12331-83980
Attn: Xxxx Xxxxxxxx
with a copy of each notice to:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xx., 0X
Xxxxxxx, XX 00000
Attn: X. Xxxxxx Queen, Managing
Director
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Notice information for each Lender is on file with the
Administrative Agent.
Schedule 1-2
SCHEDULE 2
ENVIRONMENTAL DISCLOSURE
NONE
Schedule 2-1
SCHEDULE 3
PLANS
The following is the list of multiemployer pension plans to which
Foodbrands America, Inc. units contribute:
DFG Foods, LLC , Newark, NJ - UFCW Local 174 Commercial
Pension Fund
Specialty Brands, Rialto, CA - Western Conference of
Teamsters Pension
Trust Fund
Russer Foods, Buffalo, NY - Central Pension Plan of the
International
Union of Operating Engineers
Xxxxx, Chicago, IL - UFCW Union and Industry Pension Fund
- International Brotherhood of Teamsters Union Local 710
Pension Fund
Jac Pac, Manchester, NH - UFCW Industry Pension Fund
- New England Teamsters and Trucking Industry
Pension Fund
Schedule 3-1
EXHIBIT A
REVOLVING COMMITMENTS
REVOLVING COMMITMENTS
OF THE BANKS AS OF
THE EFFECTIVE DATE
REVOLVING
PRO RATA COMMITMENT AS OF
BANK SHARE EFFECTIVE DATE
Bank of America, N.A. _____% $53,000,000.00
Bank of Tokyo - Mitsubishi, Ltd., _____% $52,750,000.00
Chicago Branch
BNP Paribas _____% $52,750,000.00
CoBank, ACB _____% $52,750,000.00
Credit Lyonnais New York Branch _____% $52,750,000.00
Dai-Ichi Kangyo Bank, Ltd. _____% $52,750,000.00
The Bank of Nova Scotia _____% $52,750,000.00
SunTrust Bank _____% $52,750,000.00
Toronto Dominion (Texas), Inc. _____% $52,750,000.00
The Sakura Bank, Limited _____% $52,750,000.00
Cooperatieve Centrale Raiffeisen- _____% $52,750,000.00
Boerenleenbank, B.A., "Rabobank
Nederland", New York Branch
U.S. Bank National Association _____% $50,000,000.00
The Fuji Bank, Limited _____% $24,500,000.00
Bayerische Hypo- Und Vereinsbank _____% $50,000,000.00
AG, NY Branch
The Sumitomo Bank, Limited _____% $40,000,000.00
BHF (USA) Capital Corporation _____% $35,000,000.00
The Bank of New York _____% $25,000,000.00
The Sanwa Bank, Limited _____% $25,000,000.00
The Tokai Bank, Limited - New York _____% $25,000,000.00
Branch
RZB Finance LLC _____% $25,000,000.00
Xxxxx Xxxxxxxxx Xxx Xxxxxx, X.x.X., _____% $25,000,000.00
New York Branch
CIBC, Inc. _____% $25,000,000.00
Oak Brook Bank _____% $10,000,000.00
Bank Hapoalim _____% $10,000,000.00
REVOLVING COMMITMENT 100.00% $950,000,000.00
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
[RESERVED]
D-1
EXHIBIT E
[FORM OF BID LOAN TENDER]
BID LOAN TENDER
U.S. BANK NATIONAL ASSOCIATION
[address]
[city, state zip]
Attn:_______________
Re: Tender for Bid Loans to IBP, inc. (the "Company")
In response to your invitation on behalf of the Company
dated _______________ to tender an offer or offers to make Bid
Loans to the Company, we hereby make the following Bid Loan
Tender on the following terms:
1. Tendering Bank:________________________________________
2. Type of Bid Loan:______________________________________
3. Borrowing Date:________________________________________
4. Maximum aggregate principal amount of Bid Loans offered
hereby:
$
5. Subject to item 4 hereof, we hereby offer to make Bid
Loans in the following principal amounts and at the
following interest rates:
Absolute Rate or
Maturity Date(s) Principal Amount Money Market Margin**
$
E-1
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of certain conditions, irrevocably
obligates us to make the Bid Loans for which any offer is
accepted, and that the principal amount of such Bid Loans will be
due on the Borrowing Date set forth above.
We hereby agree to disburse the principal amount of such Bid
Loan(s) set forth herein if accepted in whole or part, in
accordance with the provisions of Section 4.7 of the Nine-Month
Credit Agreement dated as of December 20, 2000 among the Company
and the Banks named therein, Bank of America, N.A., as
Syndication Agent and U.S. Bank National Association (the
"Administrative Agent") (the "Agreement").
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Agreement.
Very truly yours,
[Name of Bank]
Dated:_____________________ By:_________________________
Authorized Signature
* Aggregate principal amount bid may not exceed aggregate
principal amount requested. Bids must be for $5,000,000 or
an integral multiple of $1,000,000 in excess thereof.
** Indicate whether Money Market Margin is to be above or below
the LIBO Rate* to be applicable to Money Market Loans.
_________________________
* As defined in the Agreement, "LIBO Rate" shall mean for any
Interest Period with respect to any LIBOR Loan:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears
on the page of the Telerate screen (or any successor
thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with
a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Eurodollar
Business Days prior to the first day of such Interest
Period, or
(b) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum
equal to the rate reasonably determined by the
Administrative Agent to be the offered rate on such other
page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest
E-2
Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per
annum reasonably determined by the Administrative Agent as
the rate of interest (rounded upward to the next 1/100th of
1%) at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the
approximate amount of the LIBOR Loan being made, continued
or converted by Bank of America and with a term equivalent
to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore
Dollar market at their request at approximately 11:00 a.m.
(London time) two Eurodollar Business Days prior to the
first day of such Interest Period.
E-3
EXHIBIT F
[FORM OF BID LOAN TENDER REQUEST NOTICE]
BID LOAN TENDER REQUEST NOTICE
[Date]
To: U.S. Bank National Association (the "Administrative Agent")
From: IBP, inc. (the "Company")
Re: Nine-Month Credit Agreement dated as of December 20, 2000
among the Company and the Banks named therein, Bank of
America, N.A., as Syndication Agent and the Administrative
Agent (the "Agreement")
We hereby give notice pursuant to Section 4.2 of the
Agreement that we propose a Bid Loan Borrowing as follows:
Type of Bid Loan: ____________________________________
Borrowing Date: ______________________________________
Maximum aggregate borrowing: $________________________
Maturity Date(s) Principal Amount*
$
Interest Payment Date(s) other than the maturity of the Bid
Loans(s):
____________________________________________________________
We confirm that at the date hereof the applicable conditions
precedent set forth in Sections 9 and 10 of the Agreement
relating to, or to be satisfied by, the Company are satisfied as
of the data hereof.
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Agreement.
IBP, inc.
By:___________________________
Authorized Signature
* Aggregate principal amount of the requested Bid Loans may
not be less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
F-1
EXHIBIT G
[RESERVED]
G-1
EXHIBIT H
[FORM OF INVITATION TO TENDER FOR BID LOANS]
U.S. BANK NATIONAL ASSOCIATION
[address]
[city, state zip]
To: [Name of Addressee Bank]
Re: Invitation to Tender for Bid Loans to IBP, inc. (the
"Company")
Pursuant to Section 4.3 of the Nine-Month Credit Agreement
dated as of December 20, 2000 among the Company, the Banks named
therein, Bank of America, N.A., as Syndication Agent and U.S.
Bank National Association (the "Administrative Agent") (the
"Agreement"), we are pleased to invite you on behalf of the
Company to tender for some or all of the Bid Loans to the Company
upon the following terms:
Type of Bid Loan: __________________________
Borrowing Date: ___________________________
Maximum aggregate borrowing: $_____________
Maturity Date(s) Principal Amount*
$
Interest Payment Date(s) other than the maturity of the Bid
Loans(s):
_________________________________________________________________
All bids made in response to this invitation must comply
with the provisions of Section 4.4 of the Agreement and be
submitted to the Administrative Agent in writing by telecopier or
telex so as to be received by the Administrative Agent,
Attention:________________, no later than 8:45 a.m. (Minneapolis
time) on (i) the third Eurodollar Business Day prior to the
proposed Borrowing Date in the case of Money Market Loans and
(ii) on the proposed Borrowing Date in the case of Absolute Rate
Loans, as follows:
Telecopier__________________
Telex No.___________________
(Answerback:_________________)
H-1
If you have any questions regarding the above, please
contact:
Unless otherwise defined herein, capitalized terms used
herein, have the meanings assigned to them in the Agreement.
Very truly yours,
U.S. BANK NATIONAL ASSOCIATION
as Administrative Agent
Dated:______________________ By:__________________________
Title:_______________________
_______________________
* Aggregate principal amount bid may not exceed principal
amount requested. Bids must be made for $5,000,000 or
an integral multiple of $1,000,000 in excess thereof.
H-2
EXHIBIT I
[FORM OF OPINION OF GENERAL
COUNSEL OF THE COMPANY]
December ____, 2000
To each of the Banks parties to the
Credit Agreement hereinafter referred to
and to U.S. Bank National Association,
as Administrative Agent
Gentlemen and Mesdames:
I am the General Counsel of IBP, inc., a Delaware
corporation (the "Company"), and I, or attorneys under my
supervision, have acted as counsel to the Company with respect to
(i) the negotiation, execution and delivery of that certain Nine-
Month Credit Agreement dated as of December 20, 2000 among the
Company and you (the "Agreement") and (ii) the transactions
contemplated thereby. This opinion is being furnished to you at
the direction of the Company pursuant to Section 9 of the
Agreement. Unless otherwise defined herein, terms used herein
shall have the meanings ascribed to them in the Agreement.
I, or attorneys under my supervision, have made such inquiry
of such officers and attorneys of the Company and its Affiliates
and examined such records, documents, instruments and
certificates of public officials and of the Company and its
Affiliates and considered such questions of law as I, or
attorneys under my supervision, have deemed necessary for the
purpose of rendering the opinions set forth herein. I have
assumed the genuineness of all signatures (other than those of
the Company) and the authenticity of all items submitted to me as
originals and the conformity with originals of all items
submitted to me as copies. In making my examination of documents
executed by entities other than the Company, I have assumed that
each such other entity had the power to enter into and perform
all of its obligations thereunder and also have assumed the due
authorization by it of all requisite action and the execution and
delivery of such documents by each such entity and the legality,
validity, binding effect on and enforceability against all such
other entities of such documents.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The Company and each Subsidiary is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, has all
requisite power and authority to own its property and to carry on
its business as now conducted, and is in good standing and
authorized to do business in each jurisdiction in which the
character of the Property owned and leased by it therein or the
transaction of its business makes such qualification necessary,
except for such jurisdictions where the failure to be in such
standing and so authorized will not materially and adversely
affect the financial condition, business or operations of the
Company and its Consolidated Subsidiaries, taken as a whole.
I-1
2. The Company has full power and authority to enter into,
execute, deliver and carry out the terms of the Agreement, to
make the borrowings contemplated thereby, to execute, deliver and
carry out the terms of the Credit Documents and to incur the
obligations provided for therein, and the execution, delivery and
performance of the Agreement and the Credit Documents have been
duly authorized by all necessary corporate action (including,
without limitation, any stockholder action). No consent or
approval of, or exemption by any Governmental Body is required to
authorize, or is required in connection with, the execution and
delivery of and performance by the Company of its obligations
under the Agreement or the Credit Documents or is required as a
condition to the validity or enforceability of the Agreement or
the Credit Documents (except for such consents, approvals or
exemptions, if any, which may be required to be obtained
subsequent to the Effective Date as permitted by the Agreement).
3. There are no actions, suits or arbitration proceedings
(whether or not purportedly on behalf of the Company or any
Subsidiary) pending or to the best of my knowledge threatened
against the Company or any Subsidiary, or maintained by the
Company or any Subsidiary, in law or in equity before any
Governmental Body which individually or in the aggregate are
likely (to the extent not covered by insurance) to result in a
material adverse change in the consolidated financial condition
of the Company and its Consolidated Subsidiaries, except as set
forth in the Company's annual report on Form 10K for the fiscal
year ended December 25, 1999 or its quarterly reports on Form 10-
Q for the thirty-nine weeks ended September 23, 2000,
respectively, filed with the Securities and Exchange Commission,
and, except as disclosed in writing to the Banks prior to the
Effective Date. There are no proceedings pending or, to the best
of my knowledge, after due inquiry, threatened against the
Company or any Subsidiary which call into question the validity
or enforceability of the Agreement or the Credit Documents or any
document delivered in connection therewith, or any action to be
taken in connection with the transactions contemplated thereby.
4. No provision of (i) the articles of incorporation,
bylaws, or any shareholder agreement of the Company or any
Subsidiary, (ii) any existing mortgage or indenture or loan or
credit agreement, subject to the Company's compliance with any
applicable covenants pertaining to its incurrence of unsecured
indebtedness, (iii) any other contract known to me after due
inquiry which is, individually or in the aggregate, material to
the consolidated financial condition, business or operations of
the Company and its Consolidated Subsidiaries, (iv) any material
statute (including, without limitation, any applicable usury or
similar law), rule or regulation, and (v) any material judgment,
or decree or order known to me after due inquiry binding on the
Company or any Subsidiary or affecting the Property of the
Company or any Subsidiary; conflicts with, or would in any way
prevent the execution, delivery or carrying out by the Company of
the terms of the Agreement or the Credit Documents, and the
taking of any such action will not constitute a default under
(subject as aforesaid), or result in the creation or imposition
of, or obligation to create any Lien upon the Property of the
Company or any Subsidiary pursuant to the terms of any such
mortgage, indenture or loan or credit agreement or other contract
(other than any right to set-off or banker's lien or attachment
that any Bank or other holder of a Credit Document may have under
applicable law). No provision of any existing mortgage or
indenture or loan or credit agreement conflict with, or would in
any way prevent, the making of the initial Credit Extension on
the date hereof.
5. The Company has no preferred stock.
I-2
6. The Company has no Plan except as set forth on Schedule
3 to the Agreement.
7. The Company 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.
8. The Company is not a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
9. The Agreement and the Credit Documents, when executed
and delivered for value, constitute valid and binding obligations
of the Company which are enforceable against the Company in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, moratorium, reorganization, fraudulent
transfer or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether considered in a proceeding at law or in
equity).
I am a member of the Minnesota Bar and, except as set forth
below, for purposes of this opinion do not hold myself out as an
expert on, nor do I express any opinion as to, the laws of any
jurisdiction other than the laws of the State of Minnesota, the
Federal laws of the United States and the General Corporation Law
of the State of Delaware. In that regard, we note that the
Credit Documents provide that they are governed by the laws of
the State of Illinois. For purposes of the opinions expressed
herein, I have assumed that the laws of the State of Illinois are
substantially the same as the laws of the State of Minnesota in
all relevant respects.
This opinion is solely for your benefit and may not be
relied on by, nor may copies be delivered to, any other Person
without my prior written consent.
Very truly yours,
I-3
EXHIBIT J
FORM OF SUBORDINATION PROVISIONS
Subordination. (a) The Indebtedness ("Subordinated Debt")
evidenced by this instrument is subordinate and junior in right
of payment to all Senior Debt (as defined in subdivision (b)) of
the Company to the extent provided herein:
(b) For all purposes of these subordination provisions the
term "Senior Debt" shall mean all principal of, premium, if any,
and interest (including without limitation any interest accruing
after the commencement of any bankruptcy or insolvency
proceedings regardless of whether such interest is allowed as a
claim in such proceedings ("Post-Petition Interest")) on and
fees, reimbursements, indemnities and all other sums payable in
respect of (i) credit extensions made pursuant to the Nine-Month
Credit Agreement, dated as of December 20, 2000, by and among the
Company, the banks signatories thereto, Bank of America, N.A., as
Syndication Agent, and U.S. Bank National Association, as
Administrative Agent, and (ii) all other indebtedness of the
Company for borrowed money and the instrument evidencing the same
or under which the same is outstanding unless, under such
instrument, it is expressly provided that such indebtedness is
junior and subordinate to other indebtedness and obligations of
the Company. The Senior Debt shall continue to be Senior Debt
and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term
of the Senior Debt or extension or renewal of the Senior Debt.
(c) Upon the happening of an event of default with respect
to payment of principal of or interest on any Senior Debt or in
the payment of other amounts due under or in connection with such
Senior Debt (a "Payment Default") or any other event of default
(a "Nonpayment Default"), as defined in such Senior Debt, or in
the instrument under which the same is outstanding, which occurs
at the maturity thereof or which permits the holders thereof to
accelerate the maturity thereof, then, unless and until such
event of default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property
or securities or by set-off or otherwise) shall be made or agreed
to be made on account of the principal of, or premium, if any, or
interest on any Subordinated Debt, or as a sinking fund for the
Subordinated Debt, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Subordinated Debt.
Notwithstanding the foregoing, the Company may resume
payments on the Subordinated Debt which the Company shall have
become obligated to make (other than upon the exercise by the
Company of any option to prepay, redeem or retire Subordinated
Debt), upon the earlier of:
(i) the cure of the event of default or the effective
waiver of the event of default by the requisite
holders of Senior Debt, or
(ii) if the event of default is a Nonpayment Default,
the passage of 120 days after the occurrence of
such event of default (notwithstanding the
occurrence of other Nonpayment Defaults within
such 120 day period), provided such event of
default (or any subsequent Nonpayment Default) is
J-1
not then the subject of pending judicial
proceedings and no Senior Debt shall have been
declared to be immediately due and payable on
account of such event of default or other
Nonpayment Default within such 120 day period.
If payments on the Subordinated Debt are permitted to
be resumed pursuant to clause (ii), such payments shall not again
be suspended pursuant to this subdivision (c) by reason of an
event of default with respect to any Senior Debt other than a
Payment Default until the passage of 120 days after payments on
the Subordinated Debt are permitted to be resumed pursuant to
clause (ii).
(d) In the event of:
(i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment,
composition or other similar proceeding relating
to the Company, its creditors as such or its
property,
(ii) any proceeding for the liquidation, dissolution or
other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency
or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit
of creditors, or
(iv) any other marshalling of the assets of the
Company,
all Senior Debt (including any Post-Petition Interest)
shall first be paid in full before any payment or
distribution, whether in cash, securities or other property,
shall be made to any holder of any Subordinated Debt on
account of any Subordinated Debt. Any payment or
distribution, whether in cash, securities or other property
(other than securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions
with respect to Subordinated Debt, to the payment of all
Senior Debt at the time outstanding and to any securities
issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but
for these subordination provisions) be payable or
deliverable in respect of this Subordinated Debt shall be
paid or delivered directly to the holders of Senior Debt in
accordance with the priorities then existing among such
holders until all Senior Debt (including any Post-Petition
Interest) shall have been paid in full.
(e) In the event that any Subordinated Debt shall be
declared or become due and payable as the result of the
occurrence of any one or more defaults in respect thereof, under
circumstances when the terms of subdivision (d) are not
applicable, the Company shall promptly notify the holders of
Senior Debt that such Subordinated Debt has been so declared or
so become due and payable. The Company shall not make any
payment of any amount of Subordinated Debt which would not have
become due and payable if such Subordinated Debt had not been
declared or become due and payable as the result of the
occurrence of one or more defaults in respect thereof unless both
(i) 10 days shall have elapsed after the giving of such notice
and (ii) such payment shall be permitted by subdivision (c)
above.
J-2
(f) If any payment or distribution, whether in cash,
securities or other property (other than securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these
subordination provisions with respect to Subordinated Debt, to
the payment of all Senior Debt at the time outstanding and to any
securities issued in respect thereof under any such plan of
reorganization or readjustment), shall be received by any holder
of Subordinated Debt in contravention of any of the terms hereof
and before all the Senior Debt shall have been paid in full, such
payment or distribution shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all such Senior Debt in
full.
(g) No present or future holder of any Senior Debt shall be
prejudiced in the right to enforce subordination of Subordinated
Debt by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and
the holder of this Subordinated Debt, the obligation of the
Company to pay to the holder hereof the principal hereof,
premium, if any, and interest hereon as and when the same shall
become due and payable in accordance with the terms hereof, or
prevent the holder of any Subordinated Debt from exercising all
rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a default or event of default hereunder, all
subject to the rights of the holders of the Senior Debt to
receive cash, securities or other property otherwise payable or
deliverable to the holders of Subordinated Debt.
(h) Upon the payment in full of all Senior Debt, the
holders of Subordinated Debt shall be subrogated to all rights of
any holders' of Senior Debt to receive any further payments or
distributions applicable to the Senior Debt until the
Subordinated Debt shall have been paid in full, and such payments
or distributions received by the holders of the Subordinated Debt
by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the
holders of Senior Debt, shall, as between the Company and its
creditors other than the holders of Senior Debt, on the one hand,
and the holders of Subordinated Debt, on the other hand, be
deemed to be a payment by the Company on account of Senior Debt
and not on account of Subordinated Debt.
(i) The holder of Subordinated Debt will take such action
(including, without limitation, the delivery of this instrument
to any agent for the holders of Senior Debt or consent to the
filing of a financing statement with respect thereto) as may, in
the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
J-3
EXHIBIT K
[FORM OF BORROWING REQUEST]
[DATE]
To: U.S. Bank National Association
[address]
[city, state zip]
Attn:_______________________
Tel. No.:_______________________
Telex No.:_______________________
(Answerback:_____________________)
Telecopier:______________________
RE: BORROWING REQUEST
Gentlemen:
Pursuant to Section 2.2 of that certain Nine-Month Credit
Agreement, dated as of December 20, 2000 (the "Agreement"), among
IBP, inc., a Delaware corporation (the "Company"), the banks
which are from time to time party thereto (the "Banks"), Bank of
America, N.A., as Syndication Agent for the Banks and U.S. Bank
National Association, as administrative agent (the
"Administrative Agent") for the Banks, notice is hereby given
that on __________, 20__, the Company desires to (as indicated):
A. Initial Funding Selection
(1) Borrow $__________ of __________ (Base Rate or
LIBOR) Committed Loans, as follows:
Requested Initial
Interest Period (for
Dollar Amount LIBOR loans)
$____________ ___________ days
Maturing on _____________, 20__
B. Conversion Selection
(1) Convert $___________ of existing (Base Rate or
LIBOR) Committed Loans, the final day of the current Interest
Period (if applicable) of which is __________, 20__, to
_____________ (Base Rate or LIBOR) Loans, as follows:
Requested Initial
Dollar Amount Interest Period
(for LIBOR loans)
K-1
$______________ ___________ days
Maturing on _____________, 20__
C. Refunding Selection
(1) Refund $_____________ of existing ____________
(LIBOR) Committed Loans, the final day of the current Interest
Period of which is ____________, 20__, as follows:
Requested
Dollar Amount Interest Period
$______________ ___________ days
Maturing on _____________, 20__
In the case of any Committed Loan pursuant to subparagraph A
above, please make available to the Company the proceeds of such
Committed Loan by transfer of immediately available funds to the
account of the Company at ___________ _____________ (name of
Bank), Account No. _______________.
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Agreement.
IBP, inc.,
a Delaware corporation
By:
Name:
Title:
K-2
EXHIBIT L
[FORM OF COMMITTED LOAN NOTE]
COMMITTED LOAN NOTE
$________________ December 20, 2000
FOR VALUE RECEIVED, the undersigned IBP, inc., a Delaware
corporation, (the "Company"), HEREBY PROMISES TO PAY to the order
of _____________________ ("Bank"), the principal amount of each
Committed Loan made by the Bank to the Company under the
Agreement referred to below in accordance with the provisions of
such Agreement, provided that on or before the Maturity Date the
Company shall pay in full the unpaid principal amount of all
Committed Loans made by the Bank to the Company under the
Agreement referred to below.
The Company also promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid at the
rates and at the times which shall be determined in accordance
with the provisions of the Nine-Month Credit Agreement (the
"Agreement") dated as of December 20, 2000, among the Company,
the banks which are from time to time parties thereto, Bank of
America, N.A., as Syndication Agent for such banks and U.S. Bank
National Association, as Administrative Agent for such banks
(together with any successor Administrative Agent appointed
thereunder, the "Administrative Agent").
Both the principal hereof and the interest hereon are
payable in lawful money of the United States of America at U.S.
Bank National Association, [address, city, state zip], (or at
such other office of the Administrative Agent as may be
designated from time to time by the Administrative Agent), for
the account of the Bank, in immediately available funds.
The type, amounts and dates of all Committed Loans and the
amounts and dates of all payments thereon shall be endorsed by
the Bank or any subsequent holder of this Committed Loan Note on
the grid attached hereto; provided, however, that failure to make
any such entry shall in no way limit or otherwise affect the
Company's obligations hereunder.
In the event an action is commenced to enforce payment of
this Committed Loan Note, the Company agrees to pay all costs of
collection and enforcement of this Committed Loan Note,
including, without limitation, reasonable attorneys' fees and the
reasonable allocable cost of inside counsel.
This Committed Loan Note is one of the "Committed Loan
Notes" referred to in, and is subject to the terms and provisions
of, the Agreement which, among other things, contains provisions
for acceleration of the maturity hereof upon the happening of
certain stated events and for prepayment from time to time, of
amounts outstanding under this Committed Loan Note upon certain
stated terms and conditions.
L-1
Unless otherwise defined herein, capitalized terms used
herein are used with the defined meanings given in the Agreement.
This Committed Loan Note shall be governed by and construed
in accordance with the internal laws of the State of Illinois,
without regard to principles of conflict of laws.
IBP, inc.
a Delaware corporation
By:_________________________
Name:_______________________
Title:______________________
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COMMITTED LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
Interest Amount of Note
Type of Amount of Rate of Period Principle Interest Date of Made
Date Loans Loan Interest (if any) Repaid Paid Repayment By
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EXHIBIT M
[FORM OF NOTICE OF DRAWING]
NOTICE OF DRAWING
Dated ________________
TO: U.S. BANK NATIONAL ASSOCIATION (the "Administrative
Agent")
FROM: IBP, inc. (the "Company")
RE: Nine-Month Credit Agreement (the "Agreement") dated as
of December 20, 2000 among the Company and the Banks
named therein, Bank of America, N.A., as Syndication
Agent and the Administrative Agent
We hereby give you notice pursuant to Section 3.2 of the
Agreement of the Company's request that the Administrative Agent
create Acceptances on _______________ (the "Drawing Date") by
accepting and discounting in accordance with Section 3.3 of the
Agreement our Drafts in the aggregate face amount of
$____________ payable ______ days after the Drawing Date.
The Drafts to be accepted by the Administrative Agent shall
be duly completed by the Administrative Agent in accordance with
the information provided in this Notice of Drawing and otherwise
in accordance with the provisions of Section 3.3 of the
Agreement:
We hereby certify to you and each Bank as follows:
1. No other financing for the transaction underlying the
Drafts is outstanding, the goods which are the subject of the
transaction underlying the Drafts are free of any lien and are
not being used as collateral for any other form of financing, and
the transaction will produce payments to us exceeding the face
amount of all drafts (including the Drafts which are the subject
to this certificate) accepted by you arising out of said
transaction.
2. The transaction which gives rise
to the Draft is the
importation/exportation/domestic
shipment of
_____________________________ from
(name of commodity)
_______________to________________,
(point of shipment)(place of destination)
pursuant to an existing contract;
the Drafts were secured at the
time of acceptance by independent
warehouse, terminal, or other
similar receipt conveying
security title to
__________________________________
(name of readily marketable staple)
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stored in ________________________.
(country where stored)
3. The transaction underlying the Draft has a remaining
term of 90 days or less, and will be concluded no later than, and
at approximately the same time as, the maturity date of the
Draft.
4. The acceptance requested complies with the applicable
regulations of the Board of Governors of the Federal Reserve
System of the United States governing bankers acceptances and
shall be eligible under such regulations for rediscount by a
Federal Reserve Bank.
Proceeds of the Administrative Agent's discount of each
Draft should be deposited in our account #_______________________
maintained with the Administrative Agent after deducting the
Acceptance Commission and Discount Charge payable to you on
account of the acceptance and discount of the Drafts in
accordance with the provisions of the Agreement.
We confirm that on the date hereof the applicable conditions
precedent set forth in Sections 9 and 10 of the Agreement
relating to, or to be satisfied by, the Company are satisfied as
of the date hereof.
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Agreement.
IBP, inc.
By_____________________________
Authorized Signature
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EXHIBIT N
[FORM OF DRAFT]
CUSTOMER DRAFT
No. _________________
Date _________________
Location: [city, state]
$______________________
On __________________________ pay to the order of
U.S. BANK NATIONAL ASSOCIATION
__________________________________________________________Dollars
Value Received and Charge to Account of
To: U.S. Bank National Association
[city, state]
IBP, inc.
By____________________________
Authorized Signature
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EXHIBIT O
[FORM OF NOTICE OF CREATION OF ACCEPTANCE
AND GRANT OF ACCEPTANCE PARTICIPATIONS]
TO: The Banks named in the Nine-Month Credit Agreement dated as
of December 20, 2000 (the "Agreement") among IBP, inc. (the
"Company"), Bank of America, N.A., as Syndication Agent and
U.S. Bank National Association (the "Administrative Agent")
RE: Notice of Creation of one or more Acceptances and Grant of
Acceptance Participations
In accordance with Section 3.6(a) of the Agreement, we
hereby notify you that:
(a) pursuant to, and in accordance with the provisions of,
Section 3.3 of the Agreement, on _______________ (the "Drawing
Date"), we created one or more Acceptances in the aggregate face
amount of $____________ for the account of the Company maturing
on ______________;
(b) On the Drawing Date, pursuant to, and in accordance
with, the provisions of Section 3.6 of the Agreement we granted
to each of you, and each of you accepted from us, an Acceptance
Participation in your respective Pro Rata Share in the
Administrative Agent's obligations in respect of said Acceptances
and, when said Acceptances are paid in full, in the Acceptance
Commission of $_____________;
(c) the aggregate amount of the respective participations
of each Bank in the foregoing are as follows:
Aggregate Amount of Aggregate Amount of
Risk Participation Participation in
Name of Bank in Acceptances Acceptance Commission
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Attached hereto is a true and complete copy of the Notice of
Drawing delivered by the Company relating to the above-referenced
Acceptance.
Unless otherwise defined herein, capitalized terms used
herein have the meanings assigned to them in the Credit
Agreement.
Dated:_____________________ U.S. BANK NATIONAL ASSOCIATION
Administrative Agent
By_______________________________
Authorized Signature
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EXHIBIT P
[FORM OF BID LOAN NOTE]
BID LOAN NOTE
$_________________ December 20, 2000
FOR VALUE RECEIVED, the undersigned IBP, inc., a Delaware
corporation (the "Company"), HEREBY PROMISES TO PAY to the order
of _________________("Bank"), the principal amount of each Bid
Loan made by the Bank to the Company under the Agreement referred
to below in accordance with the provisions of such Agreement.
The Company also promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid at the
rates and at the times which shall be determined in accordance
with the provisions of the Nine-Month Credit Agreement (the
"Agreement") dated as of December 20, 2000, among the Company,
the banks which are from time to time parties thereto, Bank of
America, N.A., as Syndication Agent for such banks and U.S. Bank
National Association, as Administrative Agent for such banks
(together the "Administrative Agent").
Both the principal of and the interest on Bid Loans are
payable in lawful money of the United States of America at U.S.
Bank National Association, [address, city, state zip], (or at
such other office of the Administrative Agent as may be
designated from time to time by the Administrative Agent), for
the account of the Bank, in immediately available funds.
Both the principal of and the interest on Bid Loans are
payable in lawful money of the United States of America at the
office of the Bank as from time to time specified pursuant to the
Agreement, in immediately available funds.
The type, amounts and dates of all Bid Loans and the amounts
and dates of all payments thereon shall be endorsed by the Bank
or any subsequent holder of this Bid Loan Note on the grid
attached hereto; provided, however, that failure to make any such
entry shall in no way limit or otherwise affect the Company's
obligations hereunder.
In the event an action is commenced to enforce payment of
this Bid Loan Note, the Company agrees to pay all costs of
collection and enforcement of this Bid Loan Note, including,
without limitation, reasonable attorneys' fees and the reasonable
allocable cost of inside counsel.
This Bid Loan Note is one of the "Bid Loan Notes" referred
to in, and is subject to the terms and provisions of, the
Agreement which, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain
stated events and for prepayment, from time to time, of amounts
outstanding under this Bid Loan Note upon certain stated terms
and conditions.
Unless otherwise defined herein, capitalized terms used
herein are used with the defined meanings given in the Agreement.
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This Bid Loan Note shall be governed by and construed in
accordance with the internal laws of the State of Illinois,
without regard to principles of conflict laws.
IBP, inc.
a Delaware corporation
By:__________________________
Name:________________________
Title:_______________________
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BID LOANS AND PAYMENTS
OF PRINCIPAL AND INTEREST
Interest Amount of Note
Type of Amount of Rate of Period Principle Interest Date of Made
Date Loans Loan Interest (if any) Repaid Paid Repayment By
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EXHIBIT Q
IBP, inc. Subsidiaries
IBP, inc.
State of Incorporation: Delaware
Purpose: To produce fresh beef and pork, and supplies prepared
meats and other consumer-ready foods for the retail and
foodservice industries.
DOMESTIC CORPORATIONS
The Xxxxx Company
State of Incorporation: Illinois
Purpose: Producer of high quality, portion-controlled steaks and
chops for the foodservice industry worldwide.
Columbus Ground Beef, Inc.
State of Incorporation: Delaware
Purpose: Produce ground beef in xxxxx in bulk form.
Foodbrands America, Inc.
State of Incorporation: Delaware
Purpose: Producer of processed foods for foodservice wholesalers
and retailers.
IBP Branded Foods, Inc.
State of Incorporation: Delaware
Purpose: Food Production
IBP Foods, Inc.
State of Incorporation: Delaware
Purpose: To produce fresh beef and pork, and supplies prepared
meats and other consumer-ready foods for the retail and
foodservice industries.
IBP Foodservice, L.L.C.
State of Incorporation: Delaware (LLC)
Purpose: Holding company for the shares of Foodbrands America,
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Inc. stock.
IBP Foundation, Inc.
State of Incorporation: Nebraska
Purpose: Charitable.
IBP Hog Markets, Inc.
State of Incorporation: Delaware
Purpose: Hog buying operation in Midwest
IBP Xxxxxx Enterprises, LLC
State of Incorporation: Delaware
Purpose: Joint venture in Russia for meat processing.
IBP International, Inc.
State of Incorporation: Delaware
Purpose: To function as a Domestic International Sales
Corporation (DISC) under IRS Section 992(b). Qualified as an IRS
DISC on February 1, 1973.
IBP International, Inc. Asia
State of Incorporation: Delaware
Purpose: To serve as a Domestic International Sales Corporation
in Asia
IBP International, Inc. Europe
State of Incorporation: Delaware
Purpose: To serve as a Domestic International Sales Corporation
in Europe
Booth Creek, Inc.
State of Incorporation: Delaware
Purpose: Management corporation.
IBP Redevelopment Corporation
State of Incorporation: Missouri
Purpose: To acquire, construct, maintain and operate a
redevelopment project or redevelopment projects in accordance
with the provisions of this law.
IBP of Wisconsin, Inc.
State of Incorporation: Delaware
Purpose: To function as a packer buyer, (hog buying) in the State
of Wisconsin.
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IBP Service Center Corp.
State of Incorporation: Delaware
Purpose: IBP Service Center corp. is a sales representative
soliciting offers from customers to buy meat products and
forwarding them to manufacturer for acceptance or rejection.
ID Casing, LLC
State of Incorporation: Delaware (LLC)
Purpose: Joint Venture in China for the production of natural
casings.
Madison Foods, Inc.
State of Incorporation: Delaware
Purpose: Owns the processing facility in Norfolk, Nebraska.
PBX, inc.
State of Incorporation: Delaware
Purpose: PBX, inc. is in the business of for-hire motor carrier
transportation of supplies, raw materials, and finished products
of IBP, inc. beef and pork plants. It also has a common contract
carrier authority.
Rural Energy Systems, Inc.
State of Incorporation: Delaware
Purpose: To function as a Intra-Sate Carrier, to own pipeline to
plants in Xxxxxx County, Kansas and Amarillo, Texas.
Supreme Processed Foods, Inc.
State of Incorporation: Delaware
Purpose: Processor of finished pork products.
Texas Transfer, Inc.
State of Incorporation: Texas
Purpose: To obtain and use certain Texas Railway Commission
Transportation Authorizations.
FOREIGN CORPORATIONS
IBP Caribbean Inc.
State of Incorporation: Cayman Islands
Purpose: Offshore holding company.
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IBP Finance Company of Canada
State of Incorporation: Nova Scotia
Purpose: Canadian corporation set up for tax purposes.
IBP Foreign Sales Corporation
State of Incorporation: Guam
Purpose: To qualify and operate as a foreign sales corporation
("fsc") and IRS tax savings
Lakeside Farm Industries Ltd
State of Incorporation: Alberta Canada
Purpose: Processor of beef products.
Lakeside Feeders Ltd
State of Incorporation: Alberta Canada
Purpose: Cattle feeding operation.
Mainstream Holding Limited (Hong Kong Holding Co.)
State of Incorporation: Hong Kong
Purpose: To hold equity investments in the Joint Venture Company
Shanghai DCH Jinshan Company Ltd
State of Incorporation: China
Purpose: To increase the quality of products, develop new
products, gain a competitive position in domestic and
international markets in terms of quality and price by using
advanced and appropriate technology and scientific operation and
management methods, to provide financial support, promote
economic efficiency and obtain satisfactory profits for the
parties.
Shandong Sand's Food and Development Co. Ltd.
State of Incorporation: Chinese
Purpose: The Joint Venture is to be able to ship equipment, IBP
is to be able to ship IBP product (as defined in JV contract) and
Sand is to be able to ship its products (Sand product) into China
with no additional costs being charged by the Chinese government
for the equipment, IBP product or Sand product being all import,
all as more fully described in JV contract.
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