EXHIBIT 99.1
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$4,950,000,000
364-DAY CREDIT AGREEMENT
AMONG
GENERAL XXXXX, INC.,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AS ADMINISTRATIVE AGENT,
CITIBANK, N.A.,
AS SYNDICATION AGENT,
UBS AG, STAMFORD BRANCH AND
DEUTSCHE BANK AG NEW YORK BRANCH,
AS CO-DOCUMENTATION AGENTS
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
DATED AS OF OCTOBER 30, 2001
X.X. XXXXXX SECURITIES INC. AND XXXXXXX XXXXX BARNEY INC.,
CO-LEAD ARRANGERS AND BOOK MANAGERS
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TABLE OF CONTENTS
PAGE
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ARTICLE I Definitions..................................................1
Section 1.01 DEFINED TERMS...............................................1
Section 1.02 OTHER INTERPRETIVE PROVISIONS..............................14
Section 1.03 ACCOUNTING PRINCIPLES......................................15
ARTICLE II The Credit..................................................15
Section 2.01 THE REVOLVING CREDIT.......................................15
Section 2.02 REGISTRY...................................................15
Section 2.03 PROCEDURE FOR BORROWING....................................16
Section 2.04 CONVERSION AND CONTINUATION ELECTIONS......................17
Section 2.05 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS..........18
Section 2.06 OPTIONAL PAYMENTS..........................................18
Section 2.07 REPAYMENT; MANDATORY PREPAYMENT AND COMMITMENT REDUCTION...19
Section 2.08 INTEREST...................................................19
Section 2.09 FEES.......................................................20
Section 2.10 COMPUTATION OF FEES AND INTEREST...........................21
Section 2.11 PAYMENTS BY THE COMPANY....................................21
Section 2.12 PAYMENTS BY THE BANKS TO THE ADMINISTRATIVE AGENT..........22
Section 2.13 SHARING OF PAYMENTS, ETC...................................23
ARTICLE III Taxes, Yield Protection and Illegality......................23
Section 3.01 TAXES......................................................23
Section 3.02 ILLEGALITY.................................................25
Section 3.03 INCREASED COSTS AND REDUCTION OF RETURN....................26
Section 3.04 FUNDING LOSSES.............................................27
Section 3.05 INABILITY TO DETERMINE RATES...............................27
Section 3.06 CERTIFICATES OF BANKS......................................28
Section 3.07 SUBSTITUTION OF BANKS......................................28
Section 3.08 SURVIVAL...................................................28
ARTICLE IV Conditions Precedent........................................28
Section 4.01 CONDITIONS OF CLOSING DATE.................................28
Section 4.02 CONDITIONS TO ALL BORROWINGS...............................30
ARTICLE V Representations and Warranties..............................30
Section 5.01 CORPORATE EXISTENCE AND POWER..............................30
Section 5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION..................31
Section 5.03 GOVERNMENTAL AUTHORIZATION.................................31
Section 5.04 BINDING EFFECT.............................................31
Section 5.05 LITIGATION.................................................31
Section 5.06 NO DEFAULT.................................................31
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Section 5.07 ERISA......................................................32
Section 5.08 USE OF PROCEEDS; MARGIN REGULATIONS........................32
Section 5.09 TITLE TO PROPERTIES........................................32
Section 5.10 TAXES......................................................32
Section 5.11 ENVIRONMENTAL MATTERS......................................33
Section 5.12 REGULATED ENTITIES.........................................33
Section 5.13 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC..........33
Section 5.14 FINANCIAL INFORMATION......................................33
ARTICLE VI Affirmative Covenants.......................................34
Section 6.01 FINANCIAL STATEMENTS.......................................34
Section 6.02 CERTIFICATES; OTHER INFORMATION............................34
Section 6.03 NOTICES....................................................35
Section 6.04 PRESERVATION OF CORPORATE EXISTENCE, ETC...................36
Section 6.05 INSURANCE..................................................36
Section 6.06 PAYMENT OF OBLIGATIONS.....................................36
Section 6.07 COMPLIANCE WITH LAWS.......................................37
Section 6.08 INSPECTION OF PROPERTY AND BOOKS AND RECORDS...............37
Section 6.09 USE OF PROCEEDS............................................37
ARTICLE VII Negative Covenants..........................................37
Section 7.01 LIMITATION ON LIENS........................................38
Section 7.02 DISPOSITION OF ASSETS; CONSOLIDATIONS AND MERGERS..........39
Section 7.03 PARI PASSU RANKING.........................................40
Section 7.04 TRANSACTIONS WITH AFFILIATES...............................40
Section 7.05 MARGIN STOCK...............................................40
Section 7.06 RATIO OF EARNINGS TO FIXED CHARGES.........................40
Section 7.07 PAYMENTS BY MATERIAL SUBSIDIARIES..........................41
ARTICLE VIII Events of Default...........................................41
Section 8.01 EVENTS OF DEFAULT..........................................41
Section 8.02 REMEDIES...................................................43
Section 8.03 RIGHTS NOT EXCLUSIVE.......................................43
ARTICLE IX The Agents..................................................44
Section 9.01 APPOINTMENT AND AUTHORIZATION..............................44
Section 9.02 DELEGATION OF DUTIES.......................................44
Section 9.03 LIABILITY OF ADMINISTRATIVE AGENT..........................44
Section 9.04 RELIANCE BY AGENT..........................................44
Section 9.05 NOTICE OF DEFAULT..........................................45
Section 9.06 CREDIT DECISION............................................45
Section 9.07 INDEMNIFICATION............................................46
Section 9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY................46
Section 9.09 SUCCESSOR ADMINISTRATIVE AGENT.............................47
Section 9.10 OTHER AGENTS...............................................47
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ARTICLE X Miscellaneous...............................................47
Section 10.01 AMENDMENTS AND WAIVERS.....................................47
Section 10.02 NOTICES....................................................48
Section 10.03 NO WAIVER; CUMULATIVE REMEDIES.............................49
Section 10.04 COSTS AND EXPENSES.........................................49
Section 10.05 INDEMNITY..................................................49
Section 10.06 MARSHALLING; PAYMENTS SET ASIDE............................50
Section 10.07 SUCCESSORS AND ASSIGNS.....................................50
Section 10.08 ASSIGNMENTS, PARTICIPATIONS, ETC...........................51
Section 10.09 CONFIDENTIALITY............................................53
Section 10.10 SET-OFF....................................................54
Section 10.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC............54
Section 10.12 COUNTERPARTS...............................................54
Section 10.13 SEVERABILITY...............................................54
Section 10.14 NO THIRD PARTIES BENEFITED.................................54
Section 10.15 TIME.......................................................55
Section 10.16 GOVERNING LAW AND JURISDICTION.............................55
Section 10.17 WAIVER OF JURY TRIAL.......................................55
Section 10.18 ENTIRE AGREEMENT...........................................56
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SCHEDULES
Schedule 2.01 Revolving Commitment of each Bank
Schedule 7.01 Existing Liens
EXHIBITS
Exhibit A - Notice of Borrowing
Exhibit B - Notice of Conversion/Continuation
Exhibit C - Assignment and Assumption Agreement
Exhibit D - Note
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364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT is entered into as of October 30, 2001, among
General Xxxxx, Inc., a Delaware corporation (the "Company"), the several
financial institutions from time to time party to this Agreement (collectively,
the "Banks"; individually, a "Bank"), Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent, Citibank, N.A., as Syndication Agent, and UBS AG,
Stamford Branch and Deutsche Bank AG New York Branch, as Co-Documentation
Agents.
WHEREAS, the Company intends to acquire (the "Acquisition"), pursuant to
the Agreement and Plan of Merger dated as of July 16, 2000, as amended (the
"Merger Agreement"), the food businesses (other than fast food business) of
Diageo plc, including The Pillsbury Company, a Delaware corporation
("Pillsbury") and its subsidiaries;
WHEREAS, the Banks have agreed to make available to the Company a revolving
credit facility upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS. In addition to the terms defined elsewhere in
this Agreement, the following terms have the following meanings:
"ACQUISITION" has the meaning specified in the recitals hereto.
"ADMINISTRATIVE AGENT" means Xxxxxx in its capacity as administrative agent
for the Banks hereunder, and any successor in such capacity.
"ADMINISTRATIVE AGENT'S PAYMENT OFFICE" means the address for payments set
forth on the signature page hereto in relation to the Administrative Agent or
such other address as the Administrative Agent may from time to time specify in
accordance with Section 10.02.
"ADMINISTRATIVE AGENT-RELATED PERSONS" means Xxxxxx, The Chase Manhattan
Bank and any successor Administrative Agent arising under Section 9.09, together
with their respective Affiliates (including, in the case of Xxxxxx, X.X. Xxxxxx
Securities, Inc. as Arranger), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent,
completed by such Bank and returned to the Administrative Agent.
"AFFILIATE" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any director, executive officer or beneficial owner of 10% or more
of the equity of a Person shall for the purposes of this Agreement, be deemed to
control the other Person. Notwithstanding the foregoing, no Bank shall be deemed
an "Affiliate" of the Company or of any Subsidiary of the Company.
"AGENT" means any of the Administrative Agent, the Syndication Agent or
the Co-Documentation Agents.
"AGGREGATE REVOLVING COMMITMENT" means the combined Revolving Commitments
of the Banks, in the initial amount of Four Billion Nine Hundred Fifty Million
Dollars ($4,950,000,000), as such amount may be reduced from time to time
pursuant to this Agreement.
"AGREEMENT" means this Credit Agreement, as amended from time to time in
accordance with the terms hereof.
"APPLICABLE MARGIN" means:
(i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Offshore Rate Loans, 0.20%;
"APPROVED FUND" means any Fund that is managed (whether as manager or
administrator) by (i) a Bank, (ii) an Affiliate of a Bank or (iii) an entity or
an Affiliate of an entity that administers or manages a Bank.
"ASSIGNEE" has the meaning specified in subsection 10.08(a).
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in subsection
10.08(a).
"ATTORNEY COSTS" means and includes all reasonable fees and reasonable
out-of-pocket disbursements of any law firm or other external counsel, the
reasonable allocated cost of internal legal services and all reasonable
out-of-pocket disbursements of internal counsel.
"BANK" has the meaning specified in the introductory clause hereto;
provided that if and to the extent any Bank obtains funding for its Loans
hereunder from a domestic bank Affiliate of such Bank, all references to such
"Bank" in Sections 3.02 and 3.03 hereof shall be deemed to include such domestic
bank Affiliate.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
"BASE RATE" means, for any day, the higher of (a) the Prime Rate and (b)
0.50% per annum above the Federal Funds Rate.
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"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any duly authorized committee of that board.
"BORROWING" means a borrowing hereunder consisting of Loans made to the
Company on the same day by the Banks pursuant to Article 2.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close and, if the applicable Business Day relates to any Offshore Rate Loan,
means such a day on which dealings are carried on in the London interbank
market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or directive of
any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"CAPITAL LEASE" has the meaning specified in the definition of "Capital
Lease Obligations."
"CAPITAL LEASE OBLIGATIONS" means all material monetary obligations of the
Company or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease ("Capital
Lease").
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"CLOSING DATE" means the date on which all conditions precedent set forth
in Section 4.01 are satisfied or waived by all Banks.
"CODE" means the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
"CO-DOCUMENTATION AGENT" means each of UBS AG, Stamford Branch and Deutsche
Bank AG New York Branch, in its capacity as a co-documentation agent in respect
of this Agreement.
"COMMITMENT PERCENTAGE" means, as to any Bank, the percentage equivalent of
such Bank's Revolving Commitment divided by the Aggregate Revolving Commitment.
"CONTINGENT OBLIGATION" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness, lease,
dividend, Surety Instrument or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that Person,
whether or not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect security
therefore, or (b) to advance or provide funds (i) for the payment or discharge
of any such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or
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financial condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (d) otherwise to assure or hold harmless the holder
of any such primary obligation against loss in respect thereof; in each case
(a), (b), (c) or (d), including arrangements wherein the rights and remedies of
the holder of the primary obligation are limited to repossession or sale of
certain property of such Person. The amount of any Contingent Obligation shall
be deemed equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound and
which is material to such Person.
"CONTROLLED GROUP" means the Company and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Company pursuant to Section 414(b), (c), (m) or (o) of the Code.
"CONVERSION DATE" means any date on which the Company converts, either
pursuant to a Notice of Conversion/ Continuation or by automatic conversion
pursuant to Section 2.04, a Base Rate Loan to an Offshore Rate Loan; or an
Offshore Rate Loan to a Base Rate Loan.
"DEFAULT" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default.
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to each Bank, the office of
that Bank designated as such in the signature pages hereto or such other office
of the Bank as it may from time to time specify to the Company and the
Administrative Agent.
"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 (i) the Administrative Agent and (ii) 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).
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon the presence, placement, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
emissions or
4
releases) of any Hazardous Material at, in, or from Property, whether or not
owned by the Company.
"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 Authorities, in each case
relating to environmental, health, safety and land use matters; including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act and the Emergency Planning and Community
Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b),
414(c) or 414(m) of the Code.
"ERISA EVENT" means (a) a Reportable Event with respect to a Qualified Plan
or a Multiemployer Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Qualified Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA);
(c) a complete or partial withdrawal by the Company or any ERISA Affiliate from
a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the
treatment of a plan amendment as a termination under Section 4041 or 4041A of
ERISA or the commencement of proceedings by the PBGC to terminate a Qualified
Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure by the
Company or any member of the Controlled Group to make required contributions to
a Qualified Plan or Multiemployer Plan; (f) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Qualified
Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate; or (h) an application for a
funding waiver or an extension of any amortization period pursuant to Section
412 of the Code with respect to any Plan.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning specified in the definition
of "Offshore Rate".
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds (Effective)". If
on any relevant day such rate is not yet published in H.15(519), the rate for
such day will be the rate set forth in the daily statistical release designated
as the Composite
5
3:30 p.m. Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, the "Composite 3:30 p.m. Quotation") for such day under the
caption "Federal Funds Effective Rate". If on any relevant day the appropriate
rate for such previous day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York
City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System, or any entity succeeding to any of its principal functions.
"FEE LETTER" means that certain letter agreement between the Company, X.X.
Xxxxxx Securities, Inc. and Xxxxxx dated October 30, 2001.
"FORM W-8BEN" has the meaning specified in subsection 3.01(f).
"FORM W-8ECI" has the meaning specified in subsection 3.01(f).
"FUND" means any Person (other than a natural Person) that is (or will be)
engaged in purchasing, holding or otherwise investing in commercial loans in the
ordinary course of its business.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"HAZARDOUS MATERIALS" means all those substances which are regulated by, or
which may form the basis of liability under, any Environmental Law, including
all substances identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste, hazardous
substance, hazardous material, or toxic substance, or petroleum or petroleum
derived substance or waste.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business pursuant to ordinary
terms); (c) all non-contingent reimbursement or payment obligations with respect
to Surety Instruments; (d) all obligations evidenced by notes, bonds,
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debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to
Property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all Capital Lease Obligations; and
(g) all net obligations with respect to Rate Contracts.
"INDEMNIFIED PERSON" has the meaning specified in subsection 10.05.
"INDEMNIFIED LIABILITIES" has the meaning specified in subsection 10.05.
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding before any
court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors; in each case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"INTEREST PAYMENT DATE" means, with respect to any Offshore Rate Loan, the
last day of the Interest Period applicable to such Loan and, with respect to
Base Rate Loans, the last Business Day of each calendar quarter and each date a
Base Rate Loan is converted into an Offshore Rate Loan, PROVIDED, HOWEVER, that
if any Interest Period for an Offshore Rate Loan exceeds three months, the date
which falls three months after the beginning of such Interest Period and after
each Interest Payment Date thereafter shall also be an Interest Payment Date.
"INTEREST PERIOD" means, with respect to any Offshore Rate Loan, the period
commencing on the Business Day the Loan is disbursed or continued or on the
Conversion Date on which the Loan is converted to the Offshore Rate Loan and
ending on the date one week or one, two, three or six months (or, for the
initial Borrowing and for any Borrowing within 45 days thereafter, with the
consent of all Banks, ending on any date up to one month thereafter) thereafter,
as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation;
PROVIDED that:
(i) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
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(iii) no Interest Period for any Revolving Loan shall extend beyond
the Revolving Termination Date.
"LEAD ARRANGERS" means X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx Xxxxxx
Inc.
"LENDING OFFICE" means, with respect to any Bank, the office or offices of
the Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, in its Administrative
Questionnaire, or such other office or offices of the Bank as it may from time
to time notify the Company and the Administrative Agent.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease Obligation, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an Operating Lease.
"LOAN" means an extension of credit by a Bank to the Company pursuant to
Article 2, and may be a Base Rate Loan or an Offshore Rate Loan.
"LOAN DOCUMENTS" means this Agreement and all documents delivered to the
Administrative Agent in connection herewith.
"MAJORITY BANKS" means at any time Banks then holding at least 51% of the
then aggregate unpaid principal amount of the Loans, or, if no such principal
amount is then outstanding, Banks then having at least 51% of the Aggregate
Revolving Commitment.
"MARGIN STOCK" means "margin stock" as such term is defined in Regulation
T, U or X of the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, any of the operations, business, properties or
condition (financial or otherwise) of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of the
Company to perform under any Loan Document and avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability of any Loan Document.
"MATERIAL SUBSIDIARY" means any Subsidiary, whether now owned or hereafter
formed or acquired, whose total assets at any time equal or exceed ten percent
(10%) of the Company's total assets as shown on the Company's consolidated
balance sheet for its most recent fiscal quarter, including, after the
Acquisition, Pillsbury.
"MERGER AGREEMENT" has the meaning specified in the recitals hereto.
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"XXXXXX" means Xxxxxx Guaranty Trust Company of New York, a New York state
banking corporation.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (within the meaning of
Section 4001(a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"NOTE" has the meaning set forth in Section 2.02(b).
"NOTICE OF BORROWING" means a notice given by the Company to the
Administrative Agent pursuant to Section 2.03, in substantially the form of
Exhibit A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice given by the Company to
the Administrative Agent pursuant to Section 2.04, in substantially the form of
Exhibit B.
"NOTICE OF LIEN" means any "notice of lien" or similar document intended to
be filed or recorded with any court, registry, recorder's office, central filing
office or other Governmental Authority for the purpose of evidencing, creating,
perfecting or preserving the priority of a Lien securing obligations owing to a
Governmental Authority.
"OBLIGATIONS" means all Loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Company to any Bank, the Administrative Agent,
or any other Person required to be indemnified, that arises under any Loan
Document, whether or not for the payment of money, whether arising by reason of
an extension of credit, loan, guaranty, indemnification or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired.
"OFFSHORE LENDING OFFICE" means with respect to each Bank, the office of
such Bank designated as such in its Administrative Questionnaire or such other
office of such Bank as such Bank may from time to time specify to the Company
and the Administrative Agent.
"OFFSHORE RATE" means for any Interest Period with respect to any Offshore
Rate Loan, a rate per annum determined by the Administrative Agent pursuant to
the following formula:
Offshore Base Rate
Offshore Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"OFFSHORE BASE RATE" means, for such Interest Period:
(a) the rate per annum (carried out to the fifth decimal place) equal
to the rate determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate Screen that displays an average
British Bankers Association Interest Settlement Rate (such page currently
being page number 3750) for deposits in dollars (for delivery on the first
day of such Interest Period) with a term approximately
9
equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) in the event 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 (carried out to the fifth decimal
place) equal to the rate 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 Business Days prior to the first day of such
Interest Period, or
(c) in the event the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the arithmetic average (expressed as a decimal,
carried out to the fifth decimal place and rounded upward if necessary) of
the rates reported to the Administrative Agent by each of the
Administrative Agent, Citicorp USA, Inc., UBS AG, Stamford Branch and
Deutsche Bank AG New York Branch (each, a "Reference Lender") as the rate
of interest at which dollar deposits (for delivery on the first day of such
Interest Period) in same day funds in the approximate amount of the
applicable Offshore Rate Loan and with a term equivalent to such Interest
Period would be offered by its London Branch to major banks in the offshore
dollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(d) in the case of an Offshore Rate Loan referenced in Section
2.03(a)(i), the rate per annum determined by the Agent as the arithmetic
average (expressed as a decimal, carried out to the fifth decimal place and
rounded upward if necessary) of the rates reported to the Administrative
Agent by each Reference Lender as the rate of interest at which dollar
deposits (for delivery on the first day of such Interest Period) in same
day funds in the approximate amount of the applicable Offshore Rate Loan
and with a term equivalent to such Interest Period would be offered by the
London Branch of such Reference Lender to major banks in the offshore
dollar market at their request at approximately 11:00 a.m. (London time) on
the first day of such Interest Period.
If any Reference Lender fails to provide such quotation to the
Administrative Agent pursuant to clause (c) or (d), then the Administrative
Agent shall determine the Offshore Rate on the basis of the quotation of
the remaining Reference Lenders.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Bank, under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan
shall be adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.
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"OFFSHORE RATE LOAN" means a Loan that bears interest based on the Offshore
Rate.
"OPERATING LEASE" means, as applied to any Person, any lease of Property
which is not a Capital Lease.
"ORDINARY COURSE OF BUSINESS" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, the ordinary course of
such Person's business, as conducted by any such Person and undertaken by such
Person in good faith and not for purposes of evading any covenant or restriction
in any Loan Document.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"OTHER TAXES" has the meaning specified in subsection 3.01(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any of its principal functions under ERISA.
"PARTICIPANT" has the meaning specified in subsection 10.08(b).
"PERSON" means an individual, partnership, corporation, business trust,
limited liability company, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"PILLSBURY" means The Pillsbury Company, a Delaware corporation.
"PLAN" means a Multiemployer Plan or a Qualified Plan.
"PRIME RATE" means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by Xxxxxx in New York City as its
"prime rate." It is a rate set by Xxxxxx based upon various factors including
Xxxxxx'x 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 the prime rate
announced by Xxxxxx shall take effect at the opening of business on the day
specified in the public announcement of such change.
"PROPERTY" means any estate or interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
"QUALIFIED PLAN" means a pension plan intended to be tax-qualified under
Section 401(a) of the Code, which is subject to Title IV of ERISA and which any
member of the Controlled Group sponsors, maintains, or to which it 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 period covering at least five (5)
plan years, but excluding any Multiemployer Plan.
11
"RATE CONTRACTS" means swap agreements (as such term is defined in Section
101 of the Bankruptcy Code) and any other agreements or arrangements designed to
provide protection against fluctuations in interest rates.
"RATIO OF EARNINGS TO FIXED CHARGES" means the Ratio of Earnings to Fixed
Charges as reported by the Company in its most recent Form 10-K Annual Report
filed with the Securities and Exchange Commission or in its most recent
officer's certificate delivered pursuant to Section 6.01(c), PROVIDED that the
components of the numerator and denominator of such ratio are computed in each
such filing or certificate in the same manner as computed in the Company's Form
10-K Annual Report for the period ended May 27, 2001. For purposes of computing
this ratio, earnings represent pretax income from continuing operations plus
fixed charges (net of capitalized interest). Fixed charges represent gross
interest (whether expensed or capitalized) and one-third (the proportion deemed
representative of the interest factor) of rents of continuing operations.
"REGISTER" has the meaning set forth in Section 2.02(a).
"REPORTABLE EVENT" means, as to any Plan, (a) any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC, (b) a withdrawal from a Plan described in
Section 4063 of ERISA, or (c) a cessation of operations described in Section
4062(e) of ERISA.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer, any vice chairman
or the president of the Company, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer, the senior vice
president, corporate finance or any director of finance of the Company, or any
other officer having substantially the same authority and responsibility.
"REVOLVING COMMITMENT" means, with respect to each Bank, the amount set
forth opposite such Bank's name in Schedule 2.01 under the heading "Revolving
Commitment", as such amount may from time to time be reduced pursuant to Section
2.05, Section 2.07(b) or Section 2.07(c) or increased or reduced as a result of
one or more assignments pursuant to Section 10.08.
"REVOLVING LOAN" has the meaning specified in Section 2.01.
"REVOLVING TERMINATION DATE" means the earlier to occur of:
(a) October 29, 2002;
(b) the date on which the Aggregate Revolving Commitment shall
terminate in accordance with the provisions of this Agreement;
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(c) November 29, 2001, only in the event that the Acquisition has not
been consummated on or before such date; and
(d) the date on which the net cash proceeds of any new public or
private Indebtedness issued by Pillsbury or the Company after the Closing
Date (and which Indebtedness matures 364 days or more after the date of
issuance thereof) aggregate $4,950,000,000 or more.
"SEC" means the Securities and Exchange Commission, or any entity
succeeding to any of its principal functions.
"SUBSIDIARY" of a Person means any corporation, association, partnership,
joint venture or other business entity of which more than 51% of the voting
stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"SURETY INSTRUMENTS" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"SYNDICATION AGENT" means Citibank, N.A., in its capacity as syndication
agent in respect of this Agreement.
"TAXES" has the meaning specified in subsection 3.01(a).
"TRANCHE" means a group of Offshore Rate Loans having the same Interest
Period.
"TRANSFEREE" has the meaning specified in subsection 10.09.
"TYPE" means, as to any Loan, its nature as a Base Rate Loan or an Offshore
Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York.
"UNFUNDED PENSION LIABILITIES" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used by the Plan's
actuaries for funding the Plan pursuant to Section 412 of the Code for the
applicable plan year.
"UNITED STATES" and "U.S." each means the United States of America.
"VOTING STOCK" means shares of stock of a corporation of any class or
classes (however designated) having ordinary voting power for the election of a
majority of the members of the board of directors (or other governing body) of
such corporation, other than stock having such power only by reason of the
happening of a contingency.
"WHOLLY-OWNED SUBSIDIARY" of a Person means any corporation, association,
partnership or other business entity in which (other than directors' qualifying
shares required by law) 100% of the capital stock of each class having ordinary
voting power and 100% of the capital stock of every other class, or 100% of all
other equity interests (in the case of Persons
13
other than corporations), in each case at the time as of which any determination
is being made, is owned, beneficially and of record, by such Person, or by one
or more of the other Wholly-Owned Subsidiaries of such Person, or both.
"WITHDRAWAL LIABILITIES" means, as of any determination date, the aggregate
amount of the liabilities, if any, pursuant to Section 4201 of ERISA if the
Controlled Group made a complete withdrawal from all Multiemployer Plans and any
increase in contributions pursuant to Section 4243 of ERISA.
Section 1.02 OTHER INTERPRETIVE PROVISIONS.
(a) DEFINED TERMS. Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. The meaning of
defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) THE AGREEMENT. The words "hereof", "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection,
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) CERTAIN COMMON TERMS.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(d) PERFORMANCE; TIME. Whenever any performance obligation hereunder
shall be stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including." If any provision of this Agreement refers to any action taken or to
be taken by any Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.
(e) CONTRACTS. Unless otherwise expressly provided herein, references
to agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of any
Loan Document.
14
(f) LAWS. References to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(g) CAPTIONS. The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(h) INDEPENDENCE OF PROVISIONS. The parties acknowledge that this
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.
Section 1.03 ACCOUNTING PRINCIPLES. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDIT
Section 2.01 THE REVOLVING CREDIT. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Loans to the Company (each such
Loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount of such Bank's Revolving
Commitment; PROVIDED, HOWEVER, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate principal amount of all outstanding Revolving
Loans shall not exceed the Aggregate Revolving Commitment. Within the limits of
each Bank's Revolving Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01, prepay pursuant to
Section 2.06 and reborrow pursuant to this Section 2.01.
Section 2.02 REGISTRY. (a) The Administrative Agent shall maintain a
register (the "Register") on which it will record the Revolving Commitment of
each Bank, each Loan made by such Bank and each repayment of any Loan made by
such Bank. Any such recordation by the Administrative Agent on the Register
shall be conclusive, absent manifest error. With respect to any Bank, the
assignment or other transfer of the Revolving Commitment of such Bank and the
rights to the principal of, and interest on, any Loan made and Note issued
pursuant to this Agreement shall not be effective until such assignment or other
transfer is recorded on the Register and otherwise complies with Section
10.08(a). The registration of assignment or other transfer of all or part of the
Revolving Commitment, Loans and Notes for a Bank shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption
15
Agreement referred to in Section 10.08(a). The Register shall be available at
the offices where kept by the Administrative Agent for inspection by the Company
and any Bank at any reasonable time upon reasonable prior notice to the
Administrative Agent. The Company may not replace any Bank pursuant to Section
3.07 unless, with respect to any Loans made by such Bank, the requirements of
this subsection have been satisfied. Each Bank shall record on its internal
records (including computerized systems) the foregoing information as to its own
Revolving Commitment and Loans. Failure to make any such recordation, or any
error in such recordation, shall not affect the obligations of the Company under
the Loan Documents.
(b) The Company hereby agrees that, upon the request of any Bank at
any time, such Bank's Loans shall be evidenced by a promissory note or notes of
the Company (each a "NOTE"), substantially in the form of Exhibit D hereto,
payable to the order of such Bank and representing the obligation of the Company
to pay the unpaid principal amount of the Loans made by such Bank, with interest
as provided herein on the unpaid principal amount from time to time outstanding.
Section 2.03 PROCEDURE FOR BORROWING. (a)Each Borrowing of Revolving Loans
shall be made upon the Company's irrevocable written notice delivered to the
Administrative Agent in accordance with Section 10.02 in the form of a Notice of
Borrowing, which notice must be received by the Administrative Agent (i) prior
to 12:00 noon (New York City time) one Business Day prior to the requested
Borrowing date, in the case of any portion of the initial Loan which is an
Offshore Rate Loan, (ii) prior to Noon (New York City time) three Business Days
prior to the requested Borrowing date, in the case of all other Offshore Rate
Loans; and (iii) prior to Noon (New York City time) on the requested Borrowing
date, in the case of Base Rate Loans, specifying in each case:
(A) the amount of the Borrowing, which shall be in an aggregate
minimum principal amount of Twenty Five Million Dollars ($25,000,000)
or any multiple of Five Million Dollars ($5,000,000) in excess thereof
for each Type of Loan;
(B) the requested Borrowing date, which shall be a Business Day;
(C) whether the Borrowing is to be comprised of Offshore Rate
Loans or Base Rate Loans;
(D) the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing shall fail to
specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be one
month.
The exercise by the Company of the elections specified above shall be subject to
the limitation that no more than twenty Tranches of Offshore Rate Loans may be
outstanding at any one time. In addition, the Company shall select Interest
Periods hereunder and under Section 2.04 so that not more than $3,000,000,000 of
Offshore Rate Loans shall have Interest Periods ending after June 15, 2002.
16
(b) Upon receipt of the Notice of Borrowing, the Administrative Agent
will promptly notify each Bank thereof and of the amount of such Bank's
Commitment Percentage of the Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage of the
Borrowing available to the Administrative Agent for the account of the Company
at the Administrative Agent's Payment Office by 2:00 p.m. (New York City time)
on the Borrowing date requested by the Company in funds immediately available to
the Administrative Agent. Any such amount which is received by the
Administrative Agent later than 2:00 p.m. (New York City time) shall be deemed
to have been received on the immediately succeeding Business Day. The proceeds
of all such Loans will then be made available to the Company by the
Administrative Agent by wire transfer in accordance with written instructions
provided to the Administrative Agent by the Company of like funds as received by
the Administrative Agent.
(d) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan be made as an Offshore Rate Loan.
Section 2.04 CONVERSION AND CONTINUATION ELECTIONS. (a) The Company may
upon irrevocable written notice to the Administrative Agent in accordance with
subsection 2.04(b):
(i) elect to convert on any Business Day, any Base Rate
Loans (or any part thereof in an amount not less than $25,000,000, or
that is in an integral multiple of $5,000,000 in excess thereof) into
Offshore Rate Loans; or
(ii) elect to convert on any Interest Payment Date any
Offshore Rate Loans maturing on such Interest Payment Date (or any
part thereof in an amount not less than $25,000,000, or that is in an
integral multiple of $5,000,000 in excess thereof) into Base Rate
Loans; or
(iii) elect to renew on any Interest Payment Date any
Offshore Rate Loans maturing on such Interest Payment Date (or any
part thereof in an amount not less than $25,000,000, or that is in an
integral multiple of $5,000,000 in excess thereof).
(b) The Company shall deliver a Notice of Conversion/Continuation in
accordance with Section 10.02 to be received by the Administrative Agent not
later than Noon (New York City time) at least three Business Days in advance of
the Conversion Date or continuation date, specifying in each case:
(A) the proposed Conversion Date or continuation date;
(B) the aggregate amount of Loans to be converted or
renewed;
(C) the nature of the proposed conversion or continuation;
and
(D) the duration of the requested Interest Period.
17
The exercise by the Company of the elections specified above shall be subject to
the limitation that no more than twenty Tranches of Offshore Rate Loans may be
outstanding at any one time.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to deliver timely a Notice of
Conversion/Continuation selecting a new Interest Period to be applicable to such
Offshore Rate Loans or if any Default or Event of Default shall then exist, the
Company shall be deemed to have elected to convert such Offshore Rate Loans into
Base Rate Loans effective as of the expiration date of such current Interest
Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Bank thereof, or, if no timely
notice is provided by the Company, the Administrative Agent will promptly notify
each Bank of the details of any automatic conversion. All conversions and
continuations shall be made pro rata according to the respective outstanding
principal amounts of the Loans held by each Bank with respect to which the
notice was given.
(e) Unless the Majority Banks shall otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or continued as an Offshore Rate Loan.
Section 2.05 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Company
may, upon not less than three Business Days' prior notice to the Administrative
Agent, terminate the Aggregate Revolving Commitment or permanently reduce the
Aggregate Revolving Commitment by an aggregate minimum amount of $25,000,000 or
any multiple of $5,000,000 in excess thereof; PROVIDED that no such reduction or
termination shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the then
outstanding principal amount of the Revolving Loans would exceed the amount of
the Aggregate Revolving Commitment then in effect. Any reduction of the
Aggregate Revolving Commitment shall be applied to each Bank's Revolving
Commitment in accordance with such Bank's Commitment Percentage. All accrued
facility fees to, but not including the effective date of any reduction or
termination of Commitments, shall be paid on the effective date of such
reduction or termination.
Section 2.06 OPTIONAL PAYMENTS. Subject to Section 3.04, the Company may,
at any time or from time to time, upon at least one Business Day's written
notice to the Administrative Agent, ratably prepay Loans in whole or in part, in
amounts of $25,000,000 or any multiple of $5,000,000 in excess thereof. Such
notice of prepayment shall specify the date and amount of such prepayment and
whether such prepayment is of Base Rate Loans, or Offshore Rate Loans, or any
combination thereof. Such notice shall not thereafter be revocable by the
Company and the Administrative Agent will promptly notify each Bank thereof and
of such Bank's Commitment Percentage of such prepayment. If such notice is given
by the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to each such date on the amount prepaid and any
amounts required pursuant to Section 3.04.
18
Section 2.07 REPAYMENT; MANDATORY PREPAYMENT AND COMMITMENT REDUCTION. (a)
The Company shall repay to the Banks in full on the Revolving Termination Date
the aggregate principal amount of the Revolving Loans outstanding on the
Revolving Termination Date.
(b) If, at any time after the Closing Date, Pillsbury or the Company
shall issue any new public or private Indebtedness which matures 364 days or
more after the date of issuance thereof, the Company shall promptly notify the
Administrative Agent of the estimated net cash proceeds, if any, of such
issuance to be received by the Company or Pillsbury in respect thereof. Promptly
upon receipt by the Company or Pillsbury, as the case may be, of the net cash
proceeds of such issuance, the Aggregate Revolving Commitment shall be
permanently reduced by an amount equal to such net cash proceeds. Any such
reduction of the Aggregate Revolving Commitment shall be applied to each Bank's
Revolving Commitment in accordance with such Bank's Commitment Percentage. If as
a result of such reduction, the aggregate principal amount of outstanding
Revolving Loans shall exceed the Aggregate Revolving Commitment then in effect,
the Company shall immediately prepay the Revolving Loans by an amount equal to
such excess, together with interest accrued thereon and any amounts required
pursuant to Section 3.04. For purpose of this Section 2.07(b) and the definition
of "Revolving Termination Date" contained in Section 1.01, "net cash proceeds"
of the issuance of public or private Indebtedness by the Company or Pillsbury
means the aggregate cash proceeds received by the Company or Pillsbury, as the
case may be, pursuant to such issuance, net of the direct costs relating to such
issuance (including sales and underwriter's commissions and legal, accounting,
rating agency and investment banking fees).
(c) If the Aggregate Revolving Commitment exceeds Three Billion
Dollars ($3,000,000,000) on June 15, 2002, the Aggregate Revolving Commitment
shall be permanently reduced on such date so that the Aggregate Revolving
Commitment equals Three Billion Dollars ($3,000,000,000). Such reduction of the
Aggregate Revolving Commitment shall be applied to each Bank's Revolving
Commitment in accordance with such Bank's Commitment Percentage. If as a result
of such reduction, the aggregate principal amount of outstanding Revolving Loans
shall exceed the Aggregate Revolving Commitment then in effect, the Company
shall immediately prepay the Revolving Loans by an amount equal to such excess,
together with interest accrued thereon and any amounts required pursuant to
Section 3.04.
Section 2.08 INTEREST. (a) Subject to subsection 2.08(c), each Loan shall
bear interest on the outstanding principal amount thereof from the date when
made until it becomes due at a rate per annum equal to the Offshore Rate or the
Base Rate, as the case may be, PLUS the Applicable Margin; provided that any
Loan which is outstanding on December 31, 2001 shall bear interest on the
outstanding principal amount thereof at a rate per annum equal to the Offshore
Rate or the Base Rate, as the case may be, plus the Applicable Margin, plus
0.40% for a period of (i) if such Loan is outstanding for the seven days from
and including December 31, 2001, such seven days or (ii) if such Loan is not
outstanding for such seven day period, for the period (not to exceed seven days)
during which such Loan is outstanding, including first successive days from and
after December 30, 2001 during which such Loan is outstanding and then (to the
extent necessary to reach seven days (or such lesser number of days during which
such Loan is outstanding) in the aggregate) including in reverse chronological
order days from and including December 29, 2001 during which such Loan is
outstanding; provided further that any Loan which is outstanding on March 31,
2002, June 30, 2002 or September 30, 2002 (each, a "Quarter
19
End Date") shall bear interest on the outstanding principal amount thereof at a
rate per annum equal to the Offshore Rate or the Base Rate, as the case may be,
plus the Applicable Margin, plus 0.15% for a period of (i) if such Loan is
outstanding for the seven days from and including such Quarter End Date, such
seven days or (ii) if such Loan is not outstanding for such seven day period,
for the period (not to exceed seven days) during which such Loan is outstanding,
including first successive days from and after such Quarter End Date during
which such Loan is outstanding and then (to the extent necessary to reach seven
days (or such lesser number of days during which such Loan is outstanding) in
the aggregate) including in reverse chronological order days from and including
the day prior to such Quarter End Date during which such Loan is outstanding.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of Loans
pursuant to Section 2.06 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand.
(c) While any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of judgment thereon to
the extent permitted by law) on the principal amount of all Obligations due and
unpaid, at a rate per annum which is determined by adding 2% per annum to the
Applicable Margin then in effect for such Loans and, in the case of Obligations
not subject to an Applicable Margin, at a rate per annum equal to the Base Rate
plus 2%; PROVIDED, HOWEVER, that, on and after the expiration of any Interest
Period applicable to any Offshore Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration, the principal amount of
such Loan shall, during the continuation of such Event of Default or after
acceleration, bear interest at a rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
Section 2.09 FEES.
(a) FACILITY FEES. The Company shall pay to the Administrative Agent
for the account of each Bank a facility fee on such Bank's Revolving Commitment,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, equal to 0.05% per annum. Such facility fee shall accrue from
the Closing Date to the Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on December 31, 2001 through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments pursuant to Section
2.05, 2.07(b) or 2.07(c), the accrued facility fee calculated for the period
ending on such date shall also be paid on the date of such reduction or
termination, with the next succeeding quarterly payment, if any, being
calculated on the basis of the period from the reduction date to such quarterly
payment date. The
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facility fees provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article 4 are not met.
(b) ADMINISTRATIVE AGENCY FEE. The Company shall pay to the
Administrative Agent for the Administrative Agent's own account an agency fee
and other sums in the amount and at the times set forth in the Fee Letter.
Section 2.10 COMPUTATION OF FEES AND INTEREST. (a) All computations of
interest at the Prime Rate and facility fees shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of interest under this Agreement shall be made on the basis of a
360-day year and actual days elapsed, which results in more interest being paid
than if computed on the basis of a 365-day year. Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) The Administrative Agent will, with reasonable promptness, notify
the Company and the Banks of each determination of an Offshore Rate; 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 resulting from a change in the
Eurocurrency Reserve Percentage shall become effective and shall apply to any
Loans then outstanding as of the opening of business on the day on which such
change becomes effective. 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.
(c) Each determination of an interest rate by the Administrative Agent
pursuant hereto shall be conclusive and binding on the Company and the Banks in
the absence of manifest error. The Administrative Agent will, at the request of
the Company or any Bank, deliver to the Company or the Bank, as the case may be,
a statement showing the quotations used by the Administrative Agent in
determining any interest rate.
Section 2.11 PAYMENTS BY THE COMPANY. (a) All payments (including
prepayments) to be made by the Company on account of principal, interest, fees
and other amounts required hereunder shall be made without set-off, recoupment
or counterclaim; shall, except as otherwise expressly provided herein, be made
to the Administrative Agent for the ratable account of the Banks at the
Administrative Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 2:00 p.m. (New York City time) on the
date specified herein. The Administrative Agent will promptly distribute on such
date to each Bank its Commitment Percentage (or other applicable share as
expressly provided herein) of such principal, interest, fees or other amounts,
in like funds as received. Any payment which is received by the Administrative
Agent later than 2:00 p.m. (New York City time) shall be deemed to have been
received on the immediately succeeding Business Day and any applicable interest
or fee shall continue to accrue.
21
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be; subject to the provisions
set forth in the definition of "Interest Period" herein.
(c) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full as and when required
hereunder, the Administrative Agent may assume that the Company has made such
payment in full to the Administrative Agent on such date in immediately
available funds and the Administrative Agent may (but shall not be so required),
in reliance upon such assumption, cause to be distributed to each Bank on such
due date an amount equal to the amount then due such Bank. If and to the extent
the Company shall not have made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent on demand such amount
distributed to such Bank, together with interest thereon for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Administrative Agent, at the Federal Funds Rate as in effect
for each such day.
Section 2.12 PAYMENTS BY THE BANKS TO THE ADMINISTRATIVE AGENT. (a) Unless
the Administrative Agent shall have received notice from a Bank on the Closing
Date or, with respect to each Borrowing after the Closing Date, prior to 2:00
p.m. (New York City time) on the date of any proposed Borrowing, that such Bank
will not make available to the Administrative Agent as and when required
hereunder for the account of the Company the amount of that Bank's Commitment
Percentage of the Borrowing, the Administrative Agent may assume that each Bank
has made such amount available to the Administrative Agent in immediately
available funds on the Borrowing date and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the extent any Bank
shall not have made its full amount available to the Administrative Agent in
immediately available funds and the Administrative Agent in such circumstances
has made available to the Company such amount, that Bank shall on the next
Business Day following the date of such Borrowing make such amount available to
the Administrative Agent, together with interest at the Federal Funds Rate for
and determined as of each day during such period. A notice given by the
Administrative Agent submitted to any Bank with respect to amounts owing under
this subsection 2.12(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Administrative Agent shall
constitute such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the next Business Day following the date of such Borrowing, the Administrative
Agent shall notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any date of borrowing
shall not relieve any other Bank of any obligation hereunder to make a Loan on
the date of such borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Loan to be made by such other Bank on the date of any
borrowing.
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Section 2.13 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Commitment Percentage of payments on
account of the Loans obtained by all the Banks, such Bank shall forthwith (a)
notify the Administrative Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them; PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's Commitment Percentage (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so recovered from
the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.10)
with respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased pursuant to this Section 2.13 and
will in each case notify the Banks following any such purchases or repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 TAXES. (a) Subject to subsection 3.01(g), any and all
payments by the Company to each Bank or Agent under this Agreement shall be made
free and clear of, and without deduction or withholding for, any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and Agent,
such taxes (including income taxes or franchise taxes) as are imposed on or
measured by each Bank's net income by the jurisdiction under the laws of which
such Bank or Agent, as the case may be, is organized or maintains a Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes"). If any Bank
becomes aware of the imposition of Other Taxes, it shall promptly notify the
Company and the Administrative Agent thereof.
(c) Subject to subsection 3.01(g), the Company shall indemnify and
hold harmless each Bank and Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by such Bank or Agent and any liability
(including penalties, interest, additions to tax and expenses)
23
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Payment under this indemnification
shall be made within 30 days from the date such Bank or Agent makes written
demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any Bank
or Agent, then, subject to subsection 3.01(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 3.01) such Bank or
Agent, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Administrative Agent
evidence of payment satisfactory to the Administrative Agent.
(f) Each Bank which is a foreign person (i.e., a person other than a
United States person for United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing Date (or, in the
case of a Bank which becomes a party hereto pursuant to Section 10.08
after the Closing Date, the date upon which the Bank becomes a party
hereto) deliver to the Company through the Administrative Agent two
accurate and complete signed originals of Internal Revenue Service
Form W-8ECI or any successor thereto ("Form W-8ECI"), or two accurate
and complete signed originals of Internal Revenue Service Form W-8BEN
or any successor thereto ("Form W-8BEN"), as appropriate, in each case
indicating that the Bank is on the date of delivery thereof entitled
to receive payments of principal, interest and fees under this
Agreement free from withholding of United States Federal income tax;
(ii) if at any time the Bank makes any changes necessitating
a new Form W-8ECI or Form W-8BEN, it shall with reasonable promptness
deliver to the Company through the Administrative Agent in replacement
for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form W-8ECI;
or two accurate and complete signed originals of Form W-8BEN, as
appropriate, in each case indicating that the Bank is on the date of
delivery thereof entitled to receive payments of principal, interest
and fees under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in or renewal of the most
recent Form W-8ECI or Form W-8BEN previously delivered by such Bank,
deliver to the Company through the Administrative Agent two
24
accurate and complete original signed copies of Form W-8ECI or Form
W-8BEN in replacement for the forms previously delivered by the Bank;
and
(iv) it shall, promptly upon the Company's or the
Administrative Agent's reasonable request to that effect, deliver to
the Company or the Administrative Agent (as the case may be) such
other forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to
establish such Bank's tax status for withholding purposes.
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to subsection 3.01(d) to
any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its
obligations under subsection 3.01(f) in respect of such Lending
Office;
(ii) if such Bank shall have delivered to the Company a Form
W-8ECI in respect of such Lending Office pursuant to subsection
3.01(f), and such Bank shall not at any time be entitled to exemption
from deduction or withholding of United States Federal income tax in
respect of payments by the Company hereunder for the account of such
Lending Office for any reason other than a change in United States law
or regulations or in the official interpretation of such law or
regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form W-8ECI; or
(iii) if the Bank shall have delivered to the Company a Form
W-8BEN in respect of such Lending Office pursuant to subsection
3.01(f), and such Bank shall not at any time be entitled to exemption
from deduction or withholding of United States Federal income tax in
respect of payments by the Company hereunder for the account of such
Lending Office for any reason other than a change in United States law
or regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form W-8BEN.
(h) If the Company is required to pay additional amounts to any Bank
or Agent pursuant to subsection 3.01(b) or 3.01(d), then such Bank shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office or to take other reasonable action
so as to eliminate any such additional payment by the Company which may
thereafter accrue if such change or action in the judgment of such Bank is not
otherwise disadvantageous to such Bank.
Section 3.02 ILLEGALITY. (a) If any Bank shall reasonably determine, based
upon the advice of its counsel, that the introduction of any Requirement of Law,
or any change in any Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for any
25
Bank or its Lending Office to make Offshore Rate Loans, then, on notice thereof
by the Bank to the Company through the Administrative Agent, the obligation of
that Bank to make Offshore Rate Loans shall be suspended until the Bank shall
have notified the Administrative Agent and the Company that the circumstances
giving rise to such determination no longer exist.
(b) If a Bank shall reasonably determine, based upon the advice of its
counsel, that it is unlawful to maintain any Offshore Rate Loan, the Company
shall prepay in full all Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon, either on the last day of the Interest
Period thereof if the Bank may lawfully continue to maintain such Offshore Rate
Loans to such day, or immediately, if the Bank may not lawfully continue to
maintain such Offshore Rate Loans, together with any amounts required to be paid
in connection therewith pursuant to Section 3.04.
(c) If the Company is required to prepay any Offshore Rate Loan
immediately as provided in subsection 3.02(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(d) If the obligation of any Bank to make or maintain Offshore Rate
Loans has been suspended as provided in subsection 3.02(a), the Company may
elect, by giving notice to the Bank through the Administrative Agent that all
Loans which would otherwise be made by the Bank as Offshore Rate Loans shall be
instead Base Rate Loans.
(e) Before giving any notice to the Administrative Agent pursuant to
this Section 3.02, the affected Bank shall designate a different Lending Office
with respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment of
the Bank, be illegal or otherwise disadvantageous to the Bank.
Section 3.03 INCREASED COSTS AND REDUCTION OF RETURN. (a) If on or after
the date hereof any Bank shall determine that, due to and as a direct result of
either (i) the introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the calculation of
the Offshore Rate) in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Bank of agreeing to make or making, funding or
maintaining its Revolving Commitment hereunder or any Offshore Rate Loans , then
the Company shall be liable for, and shall from time to time, upon demand
therefor by such Bank (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If after the date hereof any Bank shall have determined that (i)
the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof
(including any determination by any such central bank or other Governmental
Authority that for purposes of Capital Adequacy Regulations, the Revolving
Commitments do not constitute commitments with an original maturity of one year
or less), or
26
(iv) compliance by such Bank (or its Lending Office) or any corporation
controlling such Bank, with any Capital Adequacy Regulation; affects or would
affect the amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and (taking into consideration such
Bank's or such corporation's policies with respect to capital adequacy and such
Bank's desired return on capital) determines that the amount of such capital is
increased as a consequence of its Revolving Commitment, loans, credits or
obligations under this Agreement, then, upon demand of such Bank (with a copy to
the Administrative Agent), the Company shall upon demand pay to such Bank, from
time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank for such increase.
(c) If the Company is required to pay additional amounts to any Bank
pursuant to subsection 3.03(a) or (b), then such Bank shall use its reasonable
best efforts (consistent with legal and regulatory restrictions) to designate a
different Lending Office with respect to its Offshore Rate Loans so as to
eliminate any such additional payment by the Company which may thereafter accrue
if such change in the judgment of such Bank is not otherwise disadvantageous to
such Bank.
Section 3.04 FUNDING LOSSES. The Company agrees to reimburse each Bank and
to hold each Bank harmless from any loss or out-of-pocket expense which such
Bank may sustain or incur as a direct consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan (including payments made after any
acceleration thereof);
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment after the
Company has given a notice in accordance with Section 2.06;
(d) any principal payment in respect of an Offshore Rate Loan on a day
which is not the last day of the Interest Period with respect thereto; or
(e) the conversion pursuant to Section 2.04 of any Offshore Rate Loan
to a Base Rate Loan on a day that is not the last day of the respective Interest
Period; including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans
hereunder or from standard fees payable to terminate the deposits from which
such funds were obtained. Solely for purposes of calculating amounts payable by
the Company to the Banks under this Section 3.04, each Offshore Rate Loan made
by a Bank (and each related reserve, special deposit or similar requirement)
shall be conclusively deemed to have been funded at the Offshore Base Rate used
in determining the Offshore Rate for such Offshore Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Offshore Rate Loan is in
fact so funded.
Section 3.05 INABILITY TO DETERMINE RATES. If the Administrative Agent
shall have determined (i) that for any reason adequate and reasonable means do
not exist for ascertaining
27
the Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan or (ii) that the Offshore Rate applicable pursuant to
subsection 2.08(a) for any requested Interest Period with respect to a proposed
Offshore Rate Loan does not adequately and fairly reflect the cost to any Bank
of funding such Loan, the Administrative Agent will forthwith give notice of
such determination to the Company and each Bank. Thereafter, the obligation of
the Banks to make or maintain Offshore Rate Loans hereunder shall be suspended
until the Administrative Agent revokes such notice in writing. Upon receipt of
such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such notice, the Banks shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate Loans
instead of Offshore Rate Loans.
Section 3.06 CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation pursuant to this Article 3 shall deliver to the Company (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the basis for and the computation of the amount payable to the Bank
hereunder and such certificate shall be conclusive and binding on the Company in
the absence of manifest error.
Section 3.07 SUBSTITUTION OF BANKS. Upon (x) the receipt by the Company
from any Bank of a notice of illegality with respect to Offshore Rate Loans
pursuant to Section 3.02, (y) the receipt by the Company from any Bank of a
claim for additional amounts or compensation pursuant to Section 3.01 or Section
3.03, or (z) the failure of a Bank to make any Loan on any date of Borrowing in
violation of the terms of this Agreement, the Company may: (i) request one or
more of the other Banks to acquire and assume all or part of such Bank's Loans
and Revolving Commitment (but no other Bank shall be required to do so); or (ii)
designate a replacement bank meeting the qualifications of an Eligible Assignee.
Any such transfer under clause (i) or (ii) shall be subject to the provisions of
Sections 3.04 and 10.08 hereof.
Section 3.08 SURVIVAL. The agreements and obligations of the Company in
this Article 3 shall survive the payment of all other Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 CONDITIONS OF CLOSING DATE. The obligation of each Bank to
make its initial Loan hereunder is subject to the condition that the
Administrative Agent shall have received on or before the Closing Date all of
the following, in form and substance satisfactory to the Administrative Agent
and each Bank and in sufficient copies for the Administrative Agent and each
Bank:
(a) CREDIT AGREEMENT. This Agreement executed by the Company and each
of the Agents and the Banks;
(b) RESOLUTIONS; INCUMBENCY.
28
(i) Copies of the resolutions of the board of directors of
the Company approving and authorizing the execution, delivery and
performance by the Company of this Agreement and the other Loan
Documents to be delivered hereunder, and authorizing the borrowing of
the Loans, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company; and
(ii) A certificate of the Secretary or Assistant Secretary
of the Company, certifying the names and true signatures of the
officers of the Company authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be
delivered hereunder;
(c) ARTICLES OF INCORPORATION; BY-LAWS AND GOOD STANDING. Each of the
following documents:
(i) the articles or certificate of incorporation of the
Company as in effect on the Closing Date, certified by the Secretary
or Assistant Secretary of the Company as of the Closing Date, and the
bylaws of the Company as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of the Company as of the Closing
Date; and
(ii) a good standing certificate for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation as of a recent date, together with a
bring-down certificate by facsimile, dated the Closing Date;
(d) LEGAL OPINIONS. An opinion of Xxxxxxxxx Xxxxxxxxxx, Assistant
General Counsel of the Company, addressed to the Agents and the Banks, in form
and substance satisfactory to the Administrative Agent;
(e) PAYMENT OF FEES. The Company shall have paid all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of Xxxxxx to the extent invoiced
prior to or on the Closing Date, together with such additional amounts of
Attorney Costs as shall constitute Xxxxxx'x reasonable estimate of Attorney
Costs incurred or to be incurred through the closing proceedings, provided that
such estimate shall not thereafter preclude final settling of accounts between
the Company and Xxxxxx; including any such costs, fees and expenses arising
under or referenced in Sections 3.01, 10.04 and the Fee Letter and including all
pre-execution commitment fees agreed to by the Company;
(f) CERTIFICATE. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
(i) the representations and warranties contained in Article
5 are true and correct on and as of such date, as though made on and
as of such date;
(ii) no Default or Event of Default exists; and
(iii) there has occurred since May 27, 2001, no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
29
(g) HSR REQUIREMENTS. The Administrative Agent shall have received
evidence satisfactory to it that the waiting period (and any extension thereof)
applicable to the merger pursuant to which the Acquisition is to be accomplished
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended,
shall have been terminated or shall have expired; and
(h) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Bank may reasonably request.
Section 4.02 CONDITIONS TO ALL BORROWINGS. The obligation of each Bank to
make any Loan to be made by it hereunder (including its initial Loan) or to
continue or convert any Loan pursuant to Section 2.04 is subject to the
satisfaction of the following conditions precedent on the relevant borrowing,
continuation or conversion date:
(a) NOTICE OF BORROWING OR CONTINUATION/CONVERSION. Except as provided
in Section 2.04(c), the Administrative Agent shall have received a Notice of
Borrowing or a Notice of Continuation/ Conversion, as applicable; and
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company contained in Article 5 shall
be true and correct on and as of such borrowing, continuation or conversion date
with the same effect as if made on and as of such borrowing, continuation or
conversion date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date).
Each Notice of Borrowing and Notice of Continuation/Conversion
submitted by the Company hereunder (or the deemed continuation/conversion of
any Loan pursuant to Section 2.04(c)) shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice or
application and as of the date of each Borrowing, continuation or conversion, as
applicable, that the conditions in Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and Bank that:
Section 5.01 CORPORATE EXISTENCE AND POWER. The Company and each of its
Material Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all material governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and, as to the Company, to execute, deliver, and perform its
obligations under, the Loan Documents;
30
(c) is duly qualified as a foreign corporation, and licensed and in
good standing, under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Company of this Agreement, and any other Loan
Document to which the Company is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which the Company is a party or any order, injunction, writ or decree of any
Governmental Authority to which the Company or its Property is subject; or
(c) violate any Requirement of Law.
Section 5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
this Agreement or any other Loan Document.
Section 5.04 BINDING EFFECT. This Agreement and each other Loan Document to
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
Section 5.05 LITIGATION. Except as disclosed by the Company in writing from
time to time to the Agents and the Banks, there are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge of the
Company, expressly threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, against the Company, or its Subsidiaries
or any of their respective Properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect.
Section 5.06 NO DEFAULT. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. Neither the
Company nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect
31
which, individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect or that would, if such default had
occurred after the Closing Date, create an Event of Default under subsection
8.01(e).
Section 5.07 ERISA. (a) There is no outstanding liability under Title IV of
ERISA with respect to any Qualified Plan maintained or sponsored by the Company
or any ERISA Affiliate, nor with respect to any Qualified Plan to which the
Company or any ERISA Affiliate contributes or is obligated to contribute.
(b) No Qualified Plan subject to Title IV of ERISA has any Unfunded
Pension Liability in excess of $25,000,000 in the aggregate.
(c) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(d) Neither the Company nor any ERISA Affiliate has incurred nor
reasonably expects to incur (i) any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan or (ii) any liability under Title IV of ERISA (other than premiums due and
not delinquent under Section 4007 of ERISA) with respect to a Plan and which, in
either case, could reasonably be expected to have a Material Adverse Effect.
(e) Neither the Company nor any ERISA Affiliate has transferred any
Unfunded Pension Liability to a Person other than the Company or an ERISA
Affiliate or otherwise engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA and which could reasonably be expected to have a
Material Adverse Effect.
Section 5.08 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans
are intended to be and shall be used solely for the purposes set forth in and
permitted by Section 6.09, and are intended to be and shall be used in
compliance with Section 7.05. Neither the Company nor any of its Subsidiaries is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
Section 5.09 TITLE TO PROPERTIES. The Company and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real Property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect.
Section 5.10 TAXES. The Company and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP and no Notice of Lien has been filed or recorded. There is
no proposed tax assessment against the Company or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
32
Section 5.11 ENVIRONMENTAL MATTERS. In the ordinary course of its business,
the Company conducts evaluations of the effect of Environmental Laws on the
business, operations and properties of the Company and its Subsidiaries
consistent with the risks posed and the nature of its operations, in the course
of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for clean-up or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of these evaluations, the Company has
reasonably concluded that Environmental Laws are unlikely to have a Material
Adverse Effect.
Section 5.12 REGULATED ENTITIES. None of the Company, any Person
controlling the Company, or any Subsidiary of the Company, is (a) an "Investment
Company" within the meaning of the Investment Company Act of 1940; or (b)
subject to regulation under the Public Utility Holding Company Act of 1935.
Section 5.13 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company
or its Subsidiaries own or are licensed or otherwise have the right to use all
of the material patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Company,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
Section 5.14 FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Company as of May 27, 2001
and the related consolidated statements of earnings, stockholders' equity and
cash flows for the fiscal year then ended, reported on by KPMG LLP, and included
in the Company's most recent Form 10-K, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
the Company as of such date and its consolidated results of operations and cash
flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Company as of
August 26, 2001 and the related unaudited consolidated statements of earnings
and cash flows for the three months then ended, set forth in the Company's most
recent report on Form 10-Q, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in paragraph (a) of this Section, the consolidated
financial position of the Company as of such date and its consolidated results
of operations and cash flows for such three month period (subject to normal
year-end adjustments).
33
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as any Bank shall have any
Revolving Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in writing:
Section 6.01 FINANCIAL STATEMENTS. The Company shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative Agent
and the Majority Banks, with sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year, a copy of the Company's Form 10-K Annual Report for such year
as filed with the Securities and Exchange Commission and its Annual Report to
Shareholders for such year, and accompanied by the opinion of KPMG LLP or
another nationally-recognized independent public accounting firm which shall
state that the Company's consolidated financial statements contained in such
reports present fairly the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years. Such
opinion shall not be qualified or limited because of a restricted or limited
examination by such accountant of any material portion of the Company's or any
Subsidiary's records;
(b) as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each year, a copy of the Company's
Form 10-Q Quarterly Report for such quarter as filed with the Securities and
Exchange Commission; and
(c) concurrently with the delivery of each 10-Q Quarterly Report
referred to in Section 6.01(b) above, a certificate of a Responsible Officer (i)
stating the Company's Ratio of Earnings to Fixed Charges for the period ending
with the respective fiscal quarter of the Company reflected in such 10-Q
Quarterly Report, and (ii) showing in detail the calculations supporting the
determination of such ratio.
Section 6.02 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to
the Administrative Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.01(a) above, a certificate of a Responsible Officer
(i) stating that no Default or Event of Default has occurred during such period
except as specified (by applicable subsection reference) in such certificate,
and (ii) showing in detail the calculations supporting such statement in respect
of Section 7.06;
(b) promptly after the same are sent, copies of all financial
statements and reports which the Company sends to its shareholders; and promptly
after the same are filed, copies of all financial statements and regular,
periodical or special reports which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or similar Governmental
Authority (other than Form S-8s, pricing supplements to Form S-3s, Form 8-Ks
filing only exhibits to Form S-3s, Form 11-Ks, and Forms 3, 4 and 5); PROVIDED
that this subsection (b)
34
shall not require the Company to furnish any statements or reports which it has
previously furnished to the Administrative Agent and the Banks; and
(c) promptly, such additional business, financial, corporate affairs
and other information as the Administrative Agent, at the request of any Bank,
may from time to time reasonably request.
Section 6.03 NOTICES. The Company shall promptly notify the Administrative
Agent and each Bank:
(a) (i) of the occurrence of any Default or Event of Default, (ii) of
the occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default, and (iii) of the occurrence or existence
of any event or circumstance that would cause the condition to Borrowing set
forth in subsection 4.02(b) not to be satisfied if a Borrowing were requested on
or after the date of such event or circumstance;
(b) of (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Company or any of its Subsidiaries which could
foreseeably result in a Material Adverse Effect; and (ii) any dispute,
litigation, investigation, proceeding or suspension which may exist at any time
between the Company or any of its Subsidiaries and any Governmental Authority
which could foreseeably result in a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $50,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 30 days after, becoming aware of
(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company or
any of its Subsidiaries or any of their respective Properties pursuant to any
applicable Environmental Laws which may reasonably result in liability in excess
of $50,000,000, (ii) any other Environmental Claim which may reasonably result
in liability in excess of $50,000,000, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of
the Company or any Subsidiary that could reasonably be anticipated to cause such
property or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of such property under any Environmental Laws
and which restrictions could reasonably be expected to have a Material Adverse
Effect;
(e) of any of the following events affecting the Company or any member
of its Controlled Group (but in no event more than 10 days after such event),
together with a copy of any notice with respect to such event that may be
required to be filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any member or its Controlled Group with
respect to such event:
35
(i) an ERISA Event which could foreseeably result in a
Default or Event of Default or which could reasonably be expected to
have a Material Adverse Effect; or
(ii) the adoption of any new Plan that is subject to Title
IV of ERISA or section 412 of the Code by any member of the Controlled
Group, the adoption of any amendment to a Plan that is subject to
Title IV of ERISA or section 412 of the Code, or the commencement of
contributions by any member of the Controlled Group to any Plan if any
such adoption or commencement results in an increase in unfunded
liabilities of $50,000,000 or more, or could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section 6.03 shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, and stating in general what action the Company
proposes to take with respect thereto. Each notice under subsection 6.03(a)
shall describe with particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been breached or violated.
Section 6.04 PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to Section
7.02, the Company shall, and shall cause each of its Material Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business;
(c) remain in, and continue to operate substantially in, the food
products business; and
(d) preserve or renew all of its registered trademarks, trade names
and service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
Section 6.05 INSURANCE. The Company shall, and shall cause its Material
Subsidiaries to, (a) insure and maintain insurance with responsible insurance
companies in such amounts and against such risks as is customarily carried by
owners of similar businesses and property, or (b) maintain a system or systems
of self-insurance or assumption of risk which accords with the practices of
similar businesses.
Section 6.06 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause its
Material Subsidiaries to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
36
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its Property, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary; and
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
Section 6.07 COMPLIANCE WITH LAWS. (a) The Company shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
Requirements of Law (including, without limitation, Environmental Laws) of any
Governmental Authority having jurisdiction over it or its business, except such
as may be contested in good faith or as to which a bona fide dispute may exist
and where non-compliance could not be expected to result in a Material Adverse
Effect.
(b) Upon the written request of the Administrative Agent or any Bank,
the Company shall submit and cause each of its Subsidiaries to submit, to the
Administrative Agent and with sufficient copies for each Bank, at reasonable
intervals, a general report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to subsection 6.03(d), that may
reasonably, individually or in the aggregate, result in liability in excess of
$50,000,000.
Section 6.08 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company
shall maintain and shall cause each of its Subsidiaries to maintain books of
record and account in conformity with GAAP consistently applied. Subject to such
confidentiality restrictions as the Company may reasonably impose, the Company
shall permit, and shall cause each of its Subsidiaries to permit,
representatives and independent contractors of the Administrative Agent or any
Bank to visit and inspect any of their respective Properties, to examine their
respective records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours, upon reasonable advance notice to the
Company; PROVIDED, HOWEVER, when an Event of Default exists the Administrative
Agent or any Bank may do any of the foregoing at the expense of the Company at
any time during normal business hours and without advance notice.
Section 6.09 USE OF PROCEEDS. The Company shall use the proceeds of the
Loans solely for general corporate purposes, including the funding of the
Acquisition, but not in contravention of any Requirement of Law.
ARTICLE VII
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as any Bank shall
have any Revolving Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Majority Banks waive compliance in
writing:
37
Section 7.01 LIMITATION ON LIENS. The Company shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its Property, whether now owned or hereafter acquired, other than the
following:
(a) any Lien existing on the Property of the Company or its
Subsidiaries on the Closing Date and set forth in Schedule 7.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.06, provided that no Notice
of Lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the Ordinary Course of Business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the Property of the Company or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the Ordinary Course of Business, provided all
such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and all such
liens in the aggregate at any time outstanding for the Company and its
Subsidiaries do not exceed $10,000,000;
(h) 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 businesses of the Company and its Subsidiaries;
(i) Liens on assets of corporations which become Subsidiaries after
the date of this Agreement, PROVIDED, HOWEVER, that such Liens existed at the
time the respective corporations became Subsidiaries and were not created in
anticipation thereof;
(j) purchase money security interests on any Property acquired or held
by the Company or its Subsidiaries in the Ordinary Course of Business securing
Indebtedness incurred
38
or assumed for the purpose of financing all or any part of the cost of acquiring
such Property; PROVIDED THAT (i) any such Lien attaches to such Property
concurrently with or within 20 days after the acquisition thereof, (ii) such
Lien attaches solely to the Property so acquired in such transaction, (iii) the
principal amount of the debt secured thereby does not exceed 100% of the cost of
such Property, and (iv) the principal amount of the Indebtedness secured by any
and all such purchase money security interests shall not at any time exceed
$50,000,000;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to bankers' liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; PROVIDED THAT (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the Federal Reserve Board, and (ii) such deposit account is not intended by the
Company or any of its Subsidiaries to provide collateral to the depository
institution;
(l) other Liens on Property, PROVIDED that the sum of the aggregate
Indebtedness secured by such other Liens (exclusive of Indebtedness secured by
Liens permitted by clauses (a) through (k) hereof) shall not exceed an amount
equal to five percent (5%) of the Company's total assets as shown on its
consolidated balance sheet for its most recent prior fiscal quarter;
PROVIDED, HOWEVER, that for purposes of this Section 7.01, the term "Property"
shall exclude the Company's common and cumulative preference stock, short and
long-term marketable securities and options or other financial derivative
instruments related to any of the foregoing.
Section 7.02 DISPOSITION OF ASSETS; CONSOLIDATIONS AND MERGERS. The Company
shall not, and shall not suffer or permit any of its Subsidiaries to, (i)
directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any Property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, or (ii) merge or consolidate with or into
any Person, except:
(a) dispositions of inventory, or used, worn-out or surplus Property,
all in the Ordinary Course of Business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) dispositions of accounts and notes receivable, with or without
recourse; PROVIDED that at no time shall the aggregate outstanding face amount
of accounts and notes receivable disposed of pursuant to this Section 7.02(c)
exceed $900,000,000;
(d) dispositions of any Property in connection with Pillsbury's
dessert business and shelf-stable Green Giant business;
(e) any disposition of all or a portion of Pillsbury's joint venture
interest in Ice Cream Partners;
39
(f) disposition of the GMIS Data Center located in Minneapolis,
Minnesota in connection with the Acquisition; and
(g) other dispositions of Property during the term of this Agreement
whose net book value, together with any dispositions permitted under subsection
7.02(c), in the aggregate shall not exceed twenty percent (20%) of the Company's
total assets as shown on its consolidated balance sheet for its most recent
prior fiscal quarter.
PROVIDED, HOWEVER, that
(x) any Subsidiary of the Company may merge with the Company,
provided that the Company shall be the continuing or surviving corporation, or
with any one or more Subsidiaries of the Company, provided that if any
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation;
(y) the Company or any Subsidiary of the Company may sell or
otherwise transfer any or all of its assets (upon voluntary liquidation or
otherwise), to the Company or a Wholly-Owned Subsidiary of the Company; and
(z) subject to the other provisions of this Agreement, a Person may
merge with the Company or any Subsidiary in order to accomplish an acquisition,
provided that the surviving corporation shall be the Company or a Subsidiary or
it will become a Subsidiary as a result of such acquisition.
Section 7.03 PARI PASSU RANKING. The Company will ensure that the claims
and rights of the Banks against it under the Loan Documents will not be at any
time subordinate to, and will rank at all times at least PARI PASSU with, the
claims and rights of any other of its unsecured creditors, except as may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights in general.
Section 7.04 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall
not suffer or permit any of its Subsidiaries to, enter into any transaction with
any Affiliate of the Company or of any such Subsidiary, except (a) as expressly
permitted by this Agreement, (b) as permitted by Section 5.3 of the Merger
Agreement in connection with and prior to (or within 30 days after) the
Acquisition, (c) in connection with the repurchase by the Company of common
stock of the Company, or (d) in the Ordinary Course of Business and pursuant to
the reasonable conduct of the business of the Company or such Subsidiary.
Section 7.05 MARGIN STOCK. The Company shall not and shall not suffer or
permit any of its Subsidiaries to use any portion of the Loan proceeds, directly
or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
Section 7.06 RATIO OF EARNINGS TO FIXED CHARGES. The Company shall not
permit its Ratio of Earnings to Fixed Charges as determined for any period of
four (4) consecutive fiscal
40
quarters of the Company to be less than 2.5 to 1.0. During the term of this
Agreement, the Company shall continue to compute its Ratio of Earnings to Fixed
Charges in the same manner as computed in the Company's Form 10-K Annual Report
for the period ended May 27, 2001 and shall continue to report such ratio to the
Administrative Agent on a quarterly basis concurrently with the delivery of the
financial statements referred to in subsections 6.01(a) and (b).
Section 7.07 PAYMENTS BY MATERIAL SUBSIDIARIES. Neither the Company nor any
of its Material Subsidiaries will enter into or suffer to exist any consensual
agreement or arrangement which would by its express terms limit the ability of
any Material Subsidiary to pay any dividend to or otherwise advance funds to the
Company.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT. Subject to the provisos at the end of this
section, any of the following shall constitute an "Event of Default":
(a) NON-PAYMENT. The Company fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within three (3)
Business Days after the same shall become due, any interest, fee or any other
amount payable hereunder or pursuant to any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by the
Company made or deemed made herein, in any Loan Document, or which is contained
in any certificate, document or financial or other statement by the Company, or
its Responsible Officers, furnished at any time under this Agreement, or in or
under any Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe any
term, covenant or agreement contained in Section 6.03 or Article 7; or
(d) OTHER DEFAULTS. The Company fails to perform or observe any other
term or covenant contained in this Agreement or any Loan Document, and such
default shall continue unremedied for a period of (i) 10 days, in the case such
default arises under Section 6.01 or 6.02, or (ii) 30 days, in the case of any
other such default, after the date upon which written notice thereof is given to
the Company by the Administrative Agent or any Bank; or
(e) CROSS-DEFAULT. The Company or any Material Subsidiary shall (i)
fail to pay when due, subject to the applicable grace period, if any, whether at
stated maturity or otherwise, (A) any principal of, interest on, or premiums,
fees or expenses or any other amounts relating to, any Indebtedness or (B) the
deferred purchase price of any Property or asset or (C) any Contingent
Obligation, or (ii) fail to observe or perform, subject to the applicable grace
period, if any, any other term, covenant, condition or agreement contained in
any instrument or agreement evidencing, securing or relating to any Indebtedness
or Contingent Obligation, if the effect
41
thereof is to cause, or permit the holder or holders of any such Indebtedness or
obligation, or a trustee or agent on behalf of such holder or holders
(collectively, the "holder"), to cause, such Indebtedness or obligation to
become due prior to its stated maturity; PROVIDED, HOWEVER, that no Event of
Default shall exist hereunder if (x) in the case of clause (ii), such failure or
default has been waived by the holder thereof; (y) in the case of sub-clause
(i)(B) or (i)(C), such failure is being contested in good faith by appropriate
proceedings; or (z) the aggregate of all obligations which become (or, at the
option of the holder thereof, may thereupon become) due and payable prior to
their stated maturity as a result of any such failure or default, does not
exceed $50,000,000; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any of its
Material Subsidiaries (i) generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Company or any Material Subsidiary of the
Company, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Company's or any
of its Material Subsidiaries' Properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment, execution
or similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Company or any of its Material
Subsidiaries admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Company or any of its
Material Subsidiaries acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its Property or
business; or
(h) ERISA. (i) the Company or an ERISA Affiliate shall fail to satisfy
its contribution requirements under Section 412(c)(11) of the Code, whether or
not it has sought a waiver under Section 412(d) of the Code, and such failure
could result in liability of more than $50,000,000; (ii) in the case of an ERISA
Event involving the withdrawal from a Plan of a "substantial employer" (as
defined in Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing
employer's proportionate share of that Plan's Unfunded Pension Liabilities is
more than $50,000,000; (iii) in the case of an ERISA Event involving the
complete or partial withdrawal from a Multiemployer Plan, the withdrawing
employer has incurred a withdrawal liability in an aggregate amount exceeding
$50,000,000; (iv) in the case of an ERISA Event not described in clause (ii) or
(iii), the Unfunded Pension Liabilities of the relevant Plan or Plans exceed
$50,000,000; or (v) the commencement or increase of contributions to, or the
adoption of or the amendment of a Plan by, a member of the Controlled Group
shall result in a net increase in unfunded liabilities to the Controlled Group
in excess of $50,000,000; or
(i) MONETARY JUDGMENTS. There shall be entered against the Company or
any Material Subsidiary one or more judgments or decrees which in the aggregate
exceed $50,000,000 (not paid or fully covered by insurance or for which no
adequate reserve has been
42
established) and such judgments or decrees shall not have been vacated,
discharged, stayed or appealed within the applicable period for appeal from the
date of entry thereof;
PROVIDED, HOWEVER, that if no Loan is outstanding at the time any event or
circumstance specified in paragraph (b), (c), (d), (h) or (i) of this Section
8.01 shall occur or arise, then any such event or circumstance shall not be
deemed an Event of Default, but the Administrative Agent shall, at the request
of, or may, with the consent of, the Majority Banks, declare the Revolving
Commitment of each Bank to make Loans to be terminated, whereupon such
Commitments shall forthwith be terminated and the Company shall promptly pay to
the Administrative Agent all accrued but unpaid amounts then outstanding under
this Agreement or under any other Loan Document; provided further, however,
that:
(i) the Company shall promptly notify the Administrative
Agent and each Bank of any such event or circumstance, and
(ii) the obligation of each Bank to make any Loan hereunder
shall be immediately suspended for so long as any such event or
circumstance shall continue to exist.
Section 8.02 REMEDIES. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Majority Banks,
(a) declare the Revolving Commitment of each Bank to make Loans to be
terminated, whereupon such Commitments shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in paragraph
(f) or (g) of Section 8.01 above (in the case of clause (i) of paragraph (g)
upon the expiration of the 60-day period mentioned therein), the obligation of
each Bank to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent or any Bank.
Section 8.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
43
ARTICLE IX
THE AGENTS
Section 9.01 APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
Section 9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
Section 9.03 LIABILITY OF ADMINISTRATIVE AGENT. None of the Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the Properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
Section 9.04 RELIANCE BY AGENT. (a) The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation reasonably believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it
44
shall first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Majority Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter either sent by the Administrative Agent to such Bank
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Bank.
Section 9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Banks, unless the Administrative Agent shall have received written notice from a
Bank or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
requested by the Majority Banks in accordance with Article 8; PROVIDED, HOWEVER,
that unless and until the Administrative Agent shall have received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Banks.
Section 9.06 CREDIT DECISION. Each Bank expressly acknowledges that none of
the Administrative Agent-Related Persons has made any representation or warranty
to it and that no act by the Administrative Agent hereinafter taken, including
any review of the affairs of the Company and its Subsidiaries shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Company hereunder. Each Bank also represents
that it will, independently and without reliance upon the Administrative Agent
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the
45
Company which may come into the possession of any of the Administrative
Agent-Related Persons.
Section 9.07 INDEMNIFICATION. The Banks shall indemnify upon demand the
Administrative Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), ratably in accordance with their respective Revolving Commitments, or if no
Revolving Commitments are in effect, in accordance with their respective
outstanding Revolving Loans, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Loans and the termination
or resignation of the Administrative Agent) be imposed on, incurred by or
asserted against any such Person any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by any such Person under or in connection with any of the foregoing; PROVIDED,
HOWEVER, that no Bank shall be liable for the payment to the Administrative
Agent-Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company.
Without limiting the generality of the foregoing, if the Internal Revenue
Service or any other Governmental Authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because the
appropriate form was not delivered, was not properly executed, or because such
Bank failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Bank shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Administrative Agent
under this Section, together with all costs and expenses and attorneys' fees
(including Attorney Costs). The obligation of the Banks in this Section shall
survive the payment of all Obligations hereunder.
Section 9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Xxxxxx and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though Xxxxxx were not the
Administrative Agent hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, Xxxxxx or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Affiliates) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
46
respect to its Loans, Xxxxxx shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include Xxxxxx in
its individual capacity.
Section 9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Banks. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Company shall appoint from among the Banks a successor agent for the Banks
(unless an Event of Default then exists in which case the Majority Banks shall
appoint the successor agent). If no successor agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Banks and the
Company, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term "Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 9 and Sections
10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent by the date
which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Company or the
Majority Banks appoint a successor agent as provided for above.
Section 9.10 OTHER AGENTS. None of the Syndication Agent or the
Co-Documentation Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Banks as such. Each Bank acknowledges that it has not relied, and will not rely,
on any of such Agents in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks, the Company and
acknowledged by the Administrative Agent, and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, HOWEVER, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks, the Company and acknowledged by
the Administrative Agent, do any of the following:
(a) extend or increase the Revolving Commitment of any Bank (or
reinstate any Revolving Commitment terminated pursuant to subsection 8.02(a)) or
subject any Bank to any additional obligations;
47
(b) postpone or delay any date fixed for any payment or prepayment of
principal, interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or of any fees or other amounts payable hereunder or under any Loan
Document;
(d) change the percentage of the Revolving Commitments or of the
aggregate unpaid principal amount of the Loans which shall be required for the
Banks or any of them to take any action hereunder or change the definition of
Majority Banks; or
(e) amend this Section 10.01 or Section 2.13 or any provision
providing for consent or other action by all Banks;
and, PROVIDED FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by such Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of any Agent under this
Agreement or any other Loan Document.
Section 10.02 NOTICES. (a) All notices, requests and other communications
provided for hereunder to any party shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on the
signature pages hereof or in the applicable Administrative Questionnaire, as the
case may be, and (ii) shall be followed promptly by a hard copy original
thereof) and mailed, faxed or delivered, to such party: (A) in the case of the
Company or the Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (B) in the case of any Bank, at its address
or facsimile number set forth in its Administrative Questionnaire or (C) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Company.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except that notices pursuant
to Article 2 or 9 shall not be effective until actually received by the
Administrative Agent.
(c) The Company acknowledges and agrees that any agreement of the
Administrative Agent and the Banks in at Article 2 herein to receive certain
notices by telephone and facsimile is solely for the convenience and at the
request of the Company. The Administrative Agent and the Banks shall be entitled
to rely on the authority of any Person purporting to be a Person authorized by
the Company to give such notice and the Administrative Agent and the Banks shall
not have any liability to the Company or other Person on account of any action
taken or not taken by the Administrative Agent or the Banks in reliance upon
such telephonic or facsimile notice. The obligation of the Company to repay the
Loans shall not be affected in any way or to any extent by any failure by the
Administrative Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Banks of a confirmation which is at variance with the terms
48
understood by the Administrative Agent and the Banks to be contained in the
telephonic or facsimile notice.
Section 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or Bank, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
Section 10.04 COSTS AND EXPENSES. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse Xxxxxx (including in its capacity as
Administrative Agent) within fifteen Business Days after demand (subject to
subsection 4.01(e)) for all reasonable, demonstrable costs and out-of-pocket
expenses incurred by Xxxxxx (including in its capacity as Administrative Agent)
in connection with the development, preparation, delivery and execution of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable Attorney
Costs incurred by Xxxxxx (including in its capacity as Administrative Agent)
with respect thereto as agreed in the Fee Letter; and
(b) pay or reimburse each Bank and the Administrative Agent within
fifteen Business Days after demand (subject to subsection 4.01(e)) for all costs
and expenses incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding) under this Agreement, any other
Loan Document, and any such other documents, including Attorney Costs incurred
by the Administrative Agent and any Bank.
Section 10.05 INDEMNITY. (a) The Company shall pay, indemnify, and hold
each Bank and Agent and each of their respective officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs) of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement and any other Loan Documents, or the transactions contemplated hereby
and thereby, and with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to this
Agreement or the Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); PROVIDED, that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities to
the extent resulting from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall survive payment of all
other Obligations and termination of this Agreement.
49
(b) An Indemnified Person shall give prompt notice to the Company of
any claim asserted in writing, or the commencement of any action or proceeding,
in respect of which indemnity may be sought hereunder, provided that the
omission so to notify the Company will not relieve the Company from any
liability, if any, which it may have to the Indemnified Person otherwise than
under Section 10.05(a) unless and to the extent that the Company shall have been
materially damaged by the delay in notification or the failure to be notified.
(c) The Indemnified Person shall assist the Company in the defense of
any such action or proceeding by arranging discussions with (and the calling as
witnesses of) relevant officers, directors, employees and agents of the
Indemnified Person and providing reasonable access to relevant books and
records. The Company shall have the right to, and shall at the request of the
Indemnified Person, participate in, and assume the defense of, any such action
or proceeding at its own expense using counsel mutually acceptable to the
Company and the Indemnified Person. In any such action or proceeding which the
Company has participated in or assumed the defense of, the Indemnified Person
shall have the right to retain separate counsel, but the fees and expenses of
such counsel shall be at its own expense unless the named parties to any such
suit, action or proceeding (including any impleaded parties) include both the
Company and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them.
(d) The Company shall not be liable under Section 10.05 for any
settlement effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder. The Company may settle
any claim without the consent of the Indemnified Person if monetary damages are
paid in full by the Company, PROVIDED, that the Company shall not make any
admission of wrongdoing by such Indemnified Person and all claimants shall
execute a full release in favor of such Indemnified Person. An Indemnified
Person shall, subject to its reasonable business needs, use reasonable efforts
to minimize the indemnification sought from the Company under Section 10.05.
Section 10.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Administrative
Agent nor the Banks shall be under any obligation to xxxxxxxx any assets in
favor of the Company or any other Person or against or in payment of any or all
of the Obligations. To the extent that the Company makes a payment or payments
to the Administrative Agent or the Banks, or the Administrative Agent or the
Banks exercise their rights of set-off, and such payment or payments or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent with the
consent of the Majority Banks) to be repaid to a trustee, receiver or any other
party in connection with any Insolvency Proceeding, or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or set-off had not occurred,
and (b) each Bank severally agrees to pay to the Administrative Agent upon
demand its ratable share of the total amount so recovered from or repaid by the
Administrative Agent.
Section 10.07 SUCCESSORS AND ASSIGNS. 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
50
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).
Section 10.08 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) 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 Revolving 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 Revolving 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
Revolving Commitment (which for this purpose includes Loans outstanding
thereunder) subject to each such assignment (determined as of the date the
Assignment and Assumption Agreement, as hereinafter defined, with respect to
such assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consent (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
Loan or the Revolving Commitment assigned and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an agreement,
substantially in the form of Exhibit C hereto (an "ASSIGNMENT AND ASSUMPTION
AGREEMENT"), together with a processing and recordation fee of $3,500, and the
Eligible Assignee, if it shall not be a Bank, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to Section 2.02(a), from
and after the effective date specified in each Assignment and Assumption
Agreement, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption Agreement,
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 Assumption Agreement, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption Agreement 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 Sections 3.01, 3.03, 10.04, and 10.05). Any assignment or transfer
by a Bank of rights or obligations under this Agreement that does not comply
with this paragraph 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
paragraph (b) of this Section.
(b) 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 Revolving
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 Administrative Agent 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
51
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, modification or
waiver described in clause (a), (b) or (c) of Section 10.01 that affects such
Participant. Subject to paragraph (c) of this Section, the Company agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.02, 3.03
and 3.04 to the same extent as if it were a Bank and had acquired its interest
by assignment pursuant to paragraph (a) of this Section.
(c) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.03 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. A Participant organized under the laws of a jurisdiction
outside the United States shall not be entitled to the benefits of Section 3.01
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Company, to comply with Section
3.01(f) as though it were a Bank.
(d) Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Bank, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any
Bank (a "GRANTING BANK") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Company (an "SPC"), the option to provide to the
Company all or any part of any Loan that such Granting Bank would otherwise be
obligated to make to the Company pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
the Granting Bank's obligations under this Agreement shall remain unchanged and
(iii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Bank shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Revolving Commitment of the Granting Bank to the same extent,
and as if, such Loan were made by such Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.08, any SPC may with notice to, but without (except as specified below) the
prior written consent of, the Company and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Bank or to any financial institution (consented to by
the Administrative Agent and, so long as no Event of Default has occurred, the
Company, which consents shall not be unreasonably withheld or delayed) providing
liquidity and/or credit support to or for the account of such SPC to support
52
the funding or maintenance of Loans. Any SPC shall be a Transferee for purposes
of Section 10.09 hereof, provided that in addition to disclosures permitted
pursuant to Section 10.09, an SPC may disclose on a basis acknowledged by the
recipient as confidential any non-public information relating to its Loans to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC. An amendment to this subsection
(e) without the written consent of an SPC shall be ineffective insofar as it
alters the rights and obligations of such SPC.
Section 10.09 CONFIDENTIALITY. Each Bank agrees to take normal and
reasonable precautions and exercise due care (in the same manner as it exercises
for its own affairs) to maintain the confidentiality of all information
identified as "confidential" by the Company and provided to it by the Company or
any Subsidiary of the Company, or by the Administrative Agent on such Company's
or Subsidiary's behalf, in connection with this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information
(i) was or becomes generally available to the public other
than as a result of a disclosure by such Bank, or
(ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not
bound by a confidentiality agreement with the Company known to such
Bank; provided further, however, that any Bank may disclose such
information
(A) at the request or pursuant to any requirement of any
Governmental Authority to which such Bank is subject or in
connection with an examination of such Bank by any such
authority;
(B) pursuant to subpoena or other court process, provided
that the Company is given prompt notice of such subpoena or other
process (unless such Bank is legally prohibited from giving such
notice);
(C) when required to do so in accordance with the provisions
of any applicable Requirement of Law;
(D) to the extent reasonably required in connection with any
litigation or proceeding to which any Agent, any Bank or their
respective Affiliates may be party;
(E) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan
Document; and
(F) to such Bank's independent auditors and other
professional advisors as may be reasonably required in order for
any party to fulfill its obligations, provided further, that such
auditors or advisors shall be informed of the confidentiality
requirements of this Agreement.
53
Notwithstanding the foregoing, the Company authorizes each Bank to disclose
to any Participant or Assignee (each, a "TRANSFEREE") and to any prospective
Transferee, such financial and other information in such Bank's possession
concerning the Company or its Subsidiaries which has been delivered to the
Administrative Agent or the Banks pursuant to this Agreement or which has been
delivered to the Administrative Agent or the Banks by the Company in connection
with the Bank's credit evaluation of the Company prior to entering into this
Agreement; provided that, unless otherwise agreed by the Company, such
Transferee agrees in writing to such Bank to keep such information confidential
to the same extent required of the Banks hereunder.
Section 10.10 SET-OFF. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing to, such
Bank or any of its Affiliates to or for the credit or the account of the Company
against any and all Obligations owing to such Bank or Affiliate, now or
hereafter existing, irrespective of whether or not the Administrative Agent or
such Bank shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Company and the Administrative Agent after any such
set-off and application made by such Bank or Affiliate; PROVIDED, HOWEVER, that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Bank under this Section 10.10 are in
addition to the other rights and remedies (including other rights of set-off)
which the Bank may have.
Section 10.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank
shall notify the Administrative Agent in writing of any changes in the address
to which notices to the Bank should be directed, of addresses of its Offshore
Lending Office, of payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
Section 10.12 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
Section 10.13 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
Section 10.14 NO THIRD PARTIES BENEFITED. This Agreement is made and
entered into for the sole protection and legal benefit of the Company, the Banks
and the Agents, and their permitted successors and assigns, and no other Person
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this
54
Agreement or any of the other Loan Documents. No Agent or Bank shall have any
obligation to any Person not a party to this Agreement or other Loan Documents.
Section 10.15 TIME. Time is of the essence as to each term or provision of
this Agreement and each of the other Loan Documents.
Section 10.16 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE AGENTS AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENTS AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENTS AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENTS AND
THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 10.17 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENTS
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE AGENTS EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
55
Section 10.18 ENTIRE AGREEMENT. This Agreement, together with the other
Loan Documents and the Fee Letter, embodies the entire agreement and
understanding among the Company, the Banks and the Agents, and supersedes all
prior or contemporaneous agreements and understandings of such Persons, verbal
or written, relating to the subject matter hereof and thereof.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in their proper and duly authorized officers as
of the day and year first above written.
GENERAL XXXXX, INC.
By: /s/ Xxxxx X. XxxXxxxxxxxxx
-----------------------------
Title: Vice President, Treasurer
Address for notices:
Xxx Xxxxxxx Xxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 55440
Attn: Vice President, Treasurer
Tel: 000-000-0000
Facsimile: 000-000-0000
If by courier delivery:
Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
[signature page to 364-Day General Xxxxx Credit Agreement]
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
as Administrative Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Vice President
------------------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
CITIBANK, N.A.,
as Syndication Agent
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Title: Director
------------------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
UBS AG, Stamford Branch, as Co-Documentation
Agent
By: /s/ Xxxxxxx X. Saint
-------------------------------------
Name: Xxxxxxx X. Saint
-------------------------------------
Title: Associate Director, Banking Products
-------------------------------------
Services, US
-------------------------------------
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------------
Title: Associate Director, Banking Products
-------------------------------------
Services, US
-------------------------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
DEUTSCHE BANK AG NEW YORK BRANCH,
as Co-Documentation Agent and as a Bank
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxx
--------------------------------
Title: Vice President
--------------------------------
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxx
--------------------------------
Title: Director
--------------------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
CITICORP USA, INC.,
as a Bank
By: /s/ Xxxx X. X'Xxxxxxx
---------------------
Title: Vice President
---------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ Xxxx Xxxxxxx
-----------------
Title: Managing Director
-----------------
[signature page to 364-Day General Xxxxx Credit Agreement]
BARCLAYS BANK PLC,
as a Bank
By: /s/ L. Xxxxx Xxxxxx
-------------------
Title:
-------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
CREDIT SUISSE FIRST BOSTON,
as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Director
---------------------
By: /s/ Xxx Xxxxx
---------------------
Title: Director
---------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
UBS AG, STAMFORD BRANCH,
as a Bank
By: /s/ Xxxxxxx X. Saint
------------------------------------
Title: Associate Director, Banking Products
------------------------------------
Services, US
------------------------------------
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Title: Associate Director, Banking Products
------------------------------------
Services, US
------------------------------------
[signature page to 364-Day General Xxxxx Credit Agreement]
SCHEDULE 2.01
BANK REVOLVING COMMITMENT
Xxxxxx Guaranty Trust Company of New York $ 710,000,000
Citicorp USA, Inc. $ 710,000,000
Deutsche Bank AG New York Branch $ 706,000,000
UBS AG, Stamford Branch $ 706,000,000
Bank of America, N.A. $ 706,000,000
Barclays Bank PLC $ 706,000,000
Credit Suisse First Boston $ 706,000,000
--------------
Aggregate Revolving Commitment $4,950,000,000
SCHEDULE 7.01
EXISTING LIENS
The following are industrial revenue bond obligations of the Company (or, where
indicated, guarantees of the Company with respect to such industrial revenue
bonds where the property has been sold as part of a divestiture of operations).
BALANCE AS OF
ISSUING AUTHORITY OCTOBER 30, 2001
----------------- -----------------
Union County, NC, Industrial $4,700,000
Facilities & Pollution Control Financing
Authority (Company Guarantee)
EXHIBIT A
NOTICE OF BORROWING
Date: _________________
To: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent for the
Banks parties to the 364-Day Credit Agreement dated as of October 30, 2001
(as extended, renewed, amended or restated from time to time, the "Credit
Agreement") among General Xxxxx, Inc., Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent, and certain other Agents and Banks party
thereto
Ladies and Gentlemen:
The undersigned General Xxxxx, Inc. (the "Company") refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.03 of the Credit
Agreement, of the Borrowing specified herein:
1. The Business Day of the proposed Borrowing is ______________, 200__.
2. The aggregate amount of the proposed Borrowing is $_________.
3. The Borrowing is to be comprised of $______ of [Offshore Rate] [Base
Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the Offshore
Rate Loans included in the Borrowing shall be [one week or ___
month(s)].
The undersigned hereby certifies that the following statement is true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom: the representations and warranties of the Company contained in
Article 5 of the Credit Agreement are true and correct as though made on and as
of such date (except to the extent such representations and warranties relate to
an earlier date, in which case they are true and correct as of such date).
GENERAL XXXXX, INC.
By:_____________________________
Title:__________________________
By:_____________________________
Title:__________________________
A-1
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
Date: ____________
To: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent for the
Banks parties to the 364-Day Credit Agreement dated as of October 30, 2001
(as extended, renewed, amended or restated from time to time, the "Credit
Agreement") among General Xxxxx, Inc., Xxxxxx Guaranty Trust Company of New
York, as Administrative Agent, and certain other Agents and Banks party
thereto
Ladies and Gentlemen:
The undersigned, General Xxxxx, Inc., refers to the Credit Agreement, the
terms defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 2.04 of the Credit Agreement, of the
[conversion] [continuation] of the Loans specified herein, that:
1. The date of the [conversion] [continuation] is ______________,
200___.
2. The aggregate amount of the Loans [converted] is $_________ or
[continued] is $__________.
3. The Loans are to be [converted into] [continued as] [Offshore Rate]
[Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the Loans
included in the [conversion] [continuation] shall be [one week or ___
month(s)].
The undersigned hereby certifies that the following statement is true
on the date hereof, and will be true on the date of the proposed
[conversion] [continuation], before and after giving effect thereto and to
the application of the proceeds therefrom: the representations and
warranties of the Company contained in Article 5 of the Credit Agreement
are true and correct as though made on and as of such date (except to the
extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date).
GENERAL XXXXX, INC.
By:_____________________________
Title:__________________________
By:_____________________________
Title:__________________________
B-1
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________________ ___, ______ among [NAME OF
ASSIGNOR] (the "ASSIGNOR") and [NAME OF ASSIGNEE] (the "ASSIGNEE").
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT")
relates to the 364-Day Credit Agreement dated as of October 30, 2001 (as amended
from time to time, the "CREDIT AGREEMENT") among General Xxxxx, Inc., the Banks
party thereto, Citibank, N.A., as Syndication Agent, UBS AG, Stamford Branch and
Deutsche Bank AG New York Branch, as Co-Documentation Agents and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent;
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Revolving Commitment to make Loans to the Company in an aggregate principal
amount at any time outstanding not to exceed $____________;
WHEREAS, Loans made to the Company by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Revolving Commitment thereunder in an amount equal to $__________ (the "ASSIGNED
INTEREST"), together with a corresponding portion of each of its outstanding
Loans, and the Assignee proposes to accept such assignment and assume the
corresponding obligations of the Assignor under the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. ASSIGNMENT. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Interest and a corresponding portion of each of its
outstanding Loans, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the Assignor under the Credit
Agreement to the extent of the Assigned Interest. Upon the execution and
delivery hereof by the Assignor and the Assignee [and the execution of the
consent attached hereto by the Company and the Administrative Agent]* and the
payment of the amounts specified in Section 3 required to be paid on the date
hereof, (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Credit Agreement
with a Revolving Commitment in an amount equal to the Assigned Interest and
acquire the rights of the Assignor with respect to a corresponding portion of
each of its outstanding Loans and (ii) the
-----------------------------
* Delete if consent is not required.
C-1
Revolving Commitment of the Assignor shall, as of the date hereof, be reduced by
the Assigned Interest, and the Assignor shall be released from its obligations
under the Credit Agreement to the extent such obligations have been assumed by
the Assignee. The assignment provided for herein shall be without recourse to
the Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.**
Facility fees accrued before the date hereof are for the account of the Assignor
and such fees accruing on and after the date hereof with respect to the Assigned
Interest are for the account of the Assignee. Each of the Assignor and the
Assignee agrees that if it receives any amount under the Credit Agreement which
is for the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's interest therein
and promptly pay the same to such other party.
[SECTION 4. CONSENT OF THE COMPANY AND THE ADMINISTRATIVE AGENT. This
Agreement is conditioned upon the consent of the Company and the Administrative
Agent pursuant to Section 10.08 of the Credit Agreement.]***
[SECTION 5. NOTE. The Company has agreed to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.]****
SECTION 6. REPRESENTATIONS AND WARRANTIES.
(a) Assignor. The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby.
(b) Assignee. The Assignee represents and warrants that (i) it has full
power and authority and has taken all action necessary, to execute and deliver
this Assignment and to consummate the transactions contemplated hereby and to
become a Bank under the Credit Agreement and (ii) it meets all requirements of
an Eligible Assignee under the Credit Agreement.
(c) Limitation. The Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency,
financial condition or statements of the Company, or the validity and
enforceability of the Company's obligations under the Credit Agreement or any
Note. The Assignee acknowledges that it has, independently and without reliance
on the Assignor, and based on such documents and information as it has deemed
-----------------------------
** Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
*** Delete if consent is not required.
**** Delete if execution and delivery of a Note is not required.
C-2
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Company.
SECTION 7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
C-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
---------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
---------------------------------
Name:
Title:
The undersigned consent to the foregoing assignment.
GENERAL XXXXX, INC.
By:
---------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By:
---------------------------------
Name:
Title:
X-0
XXXXXXX X
XXXX
Xxx Xxxx, Xxx Xxxx
----------- --, -----
For value received, General Xxxxx, Inc., a Delaware corporation (the
"COMPANY"), promises to pay to the order of ______________________ (the "BANK"),
for the account of its applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Company pursuant to the Credit Agreement
referred to below on the Revolving Termination Date provided for in the Credit
Agreement. The Company promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Xxxxxx Guaranty Trust Company of New York, at
____________________.
The date and amount of each Loan made by the Bank and all repayments of
the principal thereof shall be recorded by the Bank and, if the Bank so elects
in connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding may be endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; PROVIDED that
the failure of the Bank to make (or any error in making) any such recordation or
endorsement shall not affect the Company's obligations hereunder or under the
Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of October 30, 2001 among General Xxxxx, Inc., Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent, and certain other
Agents and Banks party thereto (as the same may be amended from time to time,
the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment hereof and the acceleration of the maturity hereof.
GENERAL XXXXX, INC.
By:
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Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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DATE AMOUNT OF LOAN AMOUNT OF NOTATION MADE BY
PRINCIPAL REPAID
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