REVOLVING CREDIT AGREEMENT dated as of September 14, 2011 among CONAGRA FOODS, INC., The Banks That Have Signed This Agreement, JPMORGAN CHASE BANK, N.A., as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, BNP PARIBAS, WELLS FARGO...
EXHIBIT 10.1
dated as of September 14, 2011
among
CONAGRA FOODS, INC.,
The Banks That Have Signed This Agreement,
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
BANK OF AMERICA, N.A., as Syndication Agent,
BNP PARIBAS,
XXXXX FARGO BANK, N.A., and
THE ROYAL BANK OF SCOTLAND PLC, as Documentation Agents, and
XXXXX FARGO BANK, N.A., and
THE ROYAL BANK OF SCOTLAND PLC, as Documentation Agents, and
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Co-Documentation Agent
X.X. XXXXXX SECURITIES LLC,
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED,
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page | ||||
1. DEFINITIONS |
1 | |||
2. TERMS |
11 | |||
2.1. Syndicated Loans |
11 | |||
2.1.1. Commitment to Make Syndicated Loans |
11 | |||
2.1.2. Revolving Credit |
12 | |||
2.1.3. Payments |
12 | |||
2.1.4. Syndicated Notes |
12 | |||
2.2. Syndicated Loan Borrowings |
12 | |||
2.2.1. Company Notice |
12 | |||
2.2.2. Funding |
12 | |||
2.3. Bank Records of Loans and Payments |
12 | |||
2.4. Fees, Removal of Banks and Changes of Commitments |
12 | |||
2.4.1. Facility Fee |
12 | |||
2.4.2. Banks |
13 | |||
2.4.3. Commitments |
14 | |||
2.4.4. Consents |
14 | |||
2.4.5. Notice |
14 | |||
2.5. Determination of Applicable Margin and Applicable Facility Fee Rate |
14 | |||
2.6. Interest Rates and Selection of Eurodollar Rates |
15 | |||
2.7. Restrictions on Syndicated Loans, Interest Periods and Conversion |
16 | |||
2.8. Interest Basis and Payment Dates |
16 | |||
2.9. Payments |
16 | |||
2.9.1. Payment to Administrative Agent |
16 | |||
2.9.2. Application of Payments |
17 | |||
2.9.3. Payment to Banks |
17 | |||
2.9.4. Extension for Business Day |
17 | |||
2.10. Applicable Lending Installations |
17 | |||
2.11. Payment or Failure to Pay or Borrow on Certain Dates |
17 | |||
2.12. Taxes |
17 | |||
2.12.1. Certification |
18 | |||
2.12.2. Change of Law; Defaulting Lender |
18 | |||
2.12.3. Withholding of Taxes; Gross-Up |
19 | |||
2.12.4. Company Indemnity |
19 | |||
2.12.5. Notice to Company |
19 | |||
2.12.6. Notice of Withholding |
20 | |||
2.12.7. Timely Payment |
20 | |||
2.12.8. Mitigation |
20 | |||
2.12.9. Bank Indemnity |
21 | |||
2.12.10. Treatment of Certain Refunds |
21 | |||
2.13. Increased Costs |
21 | |||
2.13.1. Change of Law |
21 |
i
Page | ||||
2.13.2. Notice |
23 | |||
2.14. Availability of Interest Rate |
23 | |||
2.15. Bank Certificates; Survival of Indemnity |
23 | |||
2.16. Telephonic Notices |
23 | |||
2.17. Mitigation of Additional Costs or Adverse Circumstances |
24 | |||
2.18. Extension of Termination Date |
24 | |||
2.19. Pro Rata Treatment |
25 | |||
2.19.1. Borrowings, Fees, Etc |
25 | |||
2.19.2. Payment of Principal and Interest |
25 | |||
2.19.3. Application of Insufficient Payments |
25 | |||
2.20. Non-Receipt of Funds by the Administrative Agent |
25 | |||
2.21. Illegality |
26 | |||
2.22. Bid Option |
26 | |||
2.22.1. Bid Option; Repayment and Effect of Bid Absolute Rate Loans |
26 | |||
2.22.2. Bid Quote Request |
27 | |||
2.22.3. Invitation for Bid Quotes |
27 | |||
2.22.4. Submission and Contents of Bid Quotes |
27 | |||
2.22.5. Notice to the Company |
29 | |||
2.22.6. Acceptance and Notice by the Company |
29 | |||
2.22.7. Allocation by the Administrative Agent |
29 | |||
2.23. Increase of Commitments |
30 | |||
2.24. Defaulting Lenders |
31 | |||
2.25. Letters of Credit |
33 | |||
3. PREPAYMENT |
36 | |||
3.1. Generally |
36 | |||
4. REPRESENTATIONS AND WARRANTIES |
37 | |||
4.1. Corporate Existence and Standing |
37 | |||
4.2. Authorization and Validity |
37 | |||
4.3. Compliance with Laws and Contracts |
37 | |||
4.4. Financial Statements |
37 | |||
4.4.1. Audited |
37 | |||
4.4.2. No Material Adverse Change |
37 | |||
4.5. Taxes |
38 | |||
4.6. Litigation |
38 | |||
4.7. Employee Retirement Income Security Act of 1974 |
38 | |||
4.8. Defaults |
38 | |||
4.9. Accuracy of Information |
38 | |||
4.10. Regulation U |
38 | |||
4.11. Legal Authority |
38 | |||
4.12. Investment Company Status |
39 |
ii
Page | ||||
5. AFFIRMATIVE COVENANTS |
39 | |||
5.1. Financial Statements, Reports, Returns and Other Financial Data |
39 | |||
5.1.1. Quarterly Financial Statements |
39 | |||
5.1.2. Annual Financial Statements |
39 | |||
5.1.3. Stockholder and Governmental Reports |
39 | |||
5.2. Officer’s Certificate |
40 | |||
5.3. Sale and Lease-Back |
40 | |||
6. NEGATIVE COVENANTS |
40 | |||
6.1. Funded Debt |
40 | |||
6.2. Consolidation, Merger, Sale or Conveyance |
40 | |||
6.3. Fixed Charge Coverage |
41 | |||
6.4. Liens |
41 | |||
7. EVENTS OF DEFAULT AND REMEDIES |
41 | |||
7.1. Events of Default |
41 | |||
7.1.1. Failure to Pay Principal of Notes |
42 | |||
7.1.2. Failure to Pay Interest on Notes or Fees |
42 | |||
7.1.3. Default Under Other Obligations |
42 | |||
7.1.4. Breach of Representation |
42 | |||
7.1.5. Failure to Perform Negative Covenants |
42 | |||
7.1.6. Failure to Perform Other Terms and Conditions |
42 | |||
7.1.7. Assignment For Benefit of Creditors and Insolvency |
42 | |||
7.1.8. Order for Relief |
42 | |||
7.1.9. Voluntary Receiver or Bankruptcy |
42 | |||
7.1.10. Involuntary Receiver or Bankruptcy |
43 | |||
7.1.11. Involuntary Order for Relief |
43 | |||
7.1.12. Unsatisfied Judgment |
43 | |||
7.2. Rights and Duties After Default |
43 | |||
7.2.1. Acceleration |
43 | |||
7.2.2. Interest Rate After Acceleration |
43 | |||
8. WAIVERS, AMENDMENTS AND REMEDIES |
43 | |||
8.1. Waivers and Remedies |
43 | |||
8.2. Amendments |
44 | |||
9. CONDITIONS PRECEDENT TO CLOSING |
44 | |||
10. GENERAL PROVISIONS |
46 | |||
10.1. Benefit of Agreement |
46 | |||
10.1.1. Assignments |
46 | |||
10.1.2. [Intentionally Omitted] |
47 | |||
10.1.3. Effect of Assignments |
47 |
iii
Page | ||||
10.1.4. Participations |
47 | |||
10.1.5. General Restrictions |
48 | |||
10.1.6. Federal Reserve Bank |
49 | |||
10.2. Survival of Representations |
49 | |||
10.3. Governmental Regulation |
49 | |||
10.4. Taxes |
49 | |||
10.5. Choice of Law; Jurisdiction |
49 | |||
10.6. Headings |
49 | |||
10.7. Entire Agreement |
49 | |||
10.8. Several Obligations |
49 | |||
10.9. Expenses |
50 | |||
10.10. [Intentionally Omitted] |
50 | |||
10.11. Severability |
50 | |||
10.12. Accounting |
50 | |||
10.13. Confidentiality |
50 | |||
10.14. USA PATRIOT Act |
51 | |||
11. THE AGENTS |
51 | |||
11.1. Appointment and Powers |
51 | |||
11.2. Powers |
51 | |||
11.3. General Immunity |
51 | |||
11.4. No Responsibility for Loans, Recitals, Etc |
52 | |||
11.5. Right to Indemnity |
52 | |||
11.6. Action on Instructions of Banks |
52 | |||
11.7. Employment of Agents and Counsel |
52 | |||
11.8. Reliance on Documents; Counsel |
52 | |||
11.9. May Treat Payee as Owner |
52 | |||
11.10. Administrative Agent’s Reimbursement |
52 | |||
11.11. Rights as a Bank |
53 | |||
11.12. Bank Credit Decision |
53 | |||
11.13. Resignation of Administrative Agent |
53 | |||
11.14. Syndication Agent, Documentation Agents and Co-Documentation Agent |
54 | |||
12. SETOFF |
54 | |||
13. NOTICES |
54 | |||
13.1. Giving Notice |
54 | |||
14. COUNTERPARTS |
54 |
iv
EXHIBITS AND SCHEDULES
SCHEDULE 1
|
- | Banks, Commitments and Notice Information | ||
EXHIBIT A
|
- | Form of Note | ||
EXHIBIT B
|
- | Sample Confirmation Letter | ||
EXHIBIT C
|
- | Form of Section 2.12 Certificate | ||
EXHIBIT D
|
- | Form of Opinion of Counsel for the Company | ||
EXHIBIT E
|
- | Form of Bid Note | ||
EXHIBIT F
|
- | Form of Bid Quote | ||
EXHIBIT G
|
- | Form of Bid Quote Request | ||
EXHIBIT H
|
- | Form of Invitation for Bid Quotes | ||
EXHIBIT I
|
- | Form of Request for Extension | ||
EXHIBIT J
|
- | Form of Acceptance of Request for Extension | ||
EXHIBIT K
|
- | Form of Consent to Additional or Increasing Bank | ||
EXHIBIT L
|
- | Form of Assignment and Assumption |
v
CONAGRA FOODS, INC.
Dated as of September 14, 2011
This Revolving Credit Agreement (as the same may be amended, supplemented or otherwise
modified from time to time hereafter, the “Agreement”) is entered into by and among ConAgra
Foods, Inc., a Delaware corporation (the “Company”), the banks that have signed this
Agreement (the “Banks”), JPMorgan Chase Bank, N.A. (“JPMCB”), as administrative
agent for such banks (the “Administrative Agent”), Bank of America, N.A. (“BofA”),
as syndication agent (the “Syndication Agent”), BNP Paribas, Xxxxx Fargo Bank, N.A. and The
Royal Bank of Scotland plc, as Documentation Agents, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as
co-documentation agent (the “Co-Documentation Agent”) and X.X. Xxxxxx Securities LLC
(“JPMorgan”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated (“MLPFS”), as
joint lead arrangers and joint bookrunners (the “Arrangers”).
WHEREAS, the Company wishes to obtain certain revolving financing from the Banks;
WHEREAS, the Banks are willing to extend revolving financing to the Company on the terms and
conditions set forth herein;
NOW THEREFORE, the Company, the Banks, the Administrative Agent and the Syndication Agent
agree as follows:
1. DEFINITIONS.
As used in this Agreement,
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Banks pursuant to Section 11, and not in its individual
capacity as a Bank, together with its successors and permitted assigns.
“Affiliate” means any Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, the Company. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
“Aggregate Revolving Exposure” means, at any time, the aggregate Revolving Exposures
of all of the Banks.
“Agreement” means this Revolving Credit Agreement, as it may be amended or modified
from time to time.
“Alternate Base Rate” means, with respect to any Alternate Base Rate Loan, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (a) for
any day, the greatest of (i) the Prime Rate, (ii) the Federal Funds Rate in effect from time to
time plus 1/2% per annum, and (iii) the one-month Eurodollar Rate (excluding the Applicable
Margin) for such day plus 1.00%; provided, that for the avoidance of doubt, the
Eurodollar Rate for any day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page
(or on any successor or substitute page) at approximately 11:00 a.m. London time on the applicable
day (without any rounding) plus (b) the Applicable Margin.
“Alternate Base Rate Loan” means that portion of any Loan at the time the Alternate
Base Rate is applicable thereto.
“Applicable Facility Fee Rate” has the meaning given thereto in Section 2.5
hereof.
“Applicable Lending Installation” means any office or branch of any Bank or the
Administrative Agent.
“Applicable Margin” has the meaning given thereto in Section 2.5 hereof.
“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Bank, (b) an Affiliate
of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.
“Arrangers” means X.X. Xxxxxx Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated in their capacities as joint lead arrangers and joint bookrunners.
“Authorized Officer” means any of the Chief Executive Officer, the Chief Financial
Officer, the Controller, the Treasurer, any Assistant Treasurer or any other employee of the
Company who is designated in writing to the Banks by any of the foregoing and who holds a
substantially similar office to any of the foregoing.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding
or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a governmental
authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Person (or such governmental authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made by such Person.
2
“Banks” means the banks listed on Schedule 1 hereto and any Person that becomes a Bank
pursuant to this Agreement and their respective successors and permitted assigns.
“Base Eurodollar Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or
substitute page of such Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service, as determined by
the Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. If such rate is not available at such
time for any reason, then the “Base Eurodollar Rate” with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period.
“Bid Absolute Rate” means, with respect to a Bid Absolute Rate Loan made by a relevant
Bank for the relevant Bid Interest Period, the rate of interest per annum (rounded to the nearest
1/100th of 1%) offered by such Bank and accepted by the Company pursuant to Section 2.22.6.
“Bid Absolute Rate Loan” means that portion of any Loan at the time the Bid Absolute
Rate is applicable thereto.
“Bid Interest Period” means, with respect to a Bid Absolute Rate Loan, a period of not
less than 30 and not more than 270 days commencing on a Business Day selected by the Company in the
relevant Bid Quote Request pursuant to Section 2.22.2. If such Bid Interest Period would
end on a day which is not a Business Day, such Bid Interest Period shall end on the next succeeding
Business Day.
“Bid Note” means a promissory note in substantially the form of Exhibit E hereto, with
appropriate insertions, duly executed and delivered to the Administrative Agent by the Company and
payable to the order of a Bank, including any amendment, modification, renewal or replacement of
such promissory note.
“Bid Quote” means a Bid Quote substantially in the form of Exhibit F hereto completed
and delivered by a Bank to the Administrative Agent pursuant to Section 2.22.4.
“Bid Quote Request” means a Bid Quote Request substantially in the form of Exhibit G
hereto completed and delivered by the Company to the Administrative Agent pursuant to Section
2.22.2.
“Bid Rate Auction” means a solicitation of Bid Quotes pursuant to Section
2.22.
3
“Board” means the Board of Governors of the Federal Reserve Systems of the United
States.
“Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Notice” means a written, telex, telecopy or telephonic notice by the
Company to the Administrative Agent specifying (i) the Effective Date of making a Syndicated Loan,
(ii) the amounts of, and Rate Option(s) applicable to, the Syndicated Loans requested and (iii) the
duration of the Eurodollar Interest Period applicable to each Eurodollar Loan requested.
“Business Day” means (i) with respect to borrowing, payment or rate selection of
Eurodollar Loans, a day on which banks are open for business in New York and Omaha and on which
dealings in U.S. Dollars are carried on in the London interbank market and (ii) for any other
reason, including with respect to borrowing, payment or rate selection of Alternate Base Rate Loans
and Bid Absolute Rate Loans or with respect to a reduction of the Commitments, a day on which banks
are open for business in New York and Omaha.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commercial LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding commercial Letters of Credit plus (b) the aggregate amount of all
LC Disbursements relating to commercial Letters of Credit that have not yet been reimbursed by or
on behalf of the Company. The Commercial LC Exposure of any Bank at any time shall be its Pro Rata
share of the aggregate Commercial LC Exposure at such time.
“Commitments” means the aggregate of the amounts set forth opposite each Bank’s name
on Schedule 1 hereto, as such amounts are reduced or increased from time to time pursuant to this
Agreement, including Section 2.4, 2.12.2, 2.17, 2.21, 2.23
or 7.2, and “Commitment” means any one amount set forth opposite each Bank’s name on
Schedule 1 as so reduced or increased.
“Company” means ConAgra Foods, Inc., a Delaware corporation, together with its
successors and permitted assigns.
“Consolidated Capital Base” means the sum of (i) Consolidated Funded Debt,
plus (ii) consolidated deferred taxes of the Company and its Subsidiaries, plus
(iii) consolidated stockholders’ equity of the Company and its Subsidiaries, all determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles; provided, however,
that in determining consolidated stockholders’ equity, any contra account of up to $350,000,000
established for purposes of an employee stock ownership plan or the Company’s Employee Equity Fund
(EEF) or the like shall be disregarded and shall not be considered a reduction of stockholders’
equity.
“Consolidated Funded Debt” means the sum of (i) any obligation for borrowed money,
which under Generally Accepted Accounting Principles as of the date hereof would be shown on the
consolidated balance sheet of the Company and its Subsidiaries as a non-current liability
plus (ii) an amount equal to 60% of the principal amount payable by the Company or
4
any Subsidiary pursuant to any guaranty by the Company or any Subsidiary of “Third Party Debt”
upon the happening of every contingency to the enforcement of such guaranty. For purposes hereof,
“Third Party Debt” shall mean debt of any Person (other than the Company or any Subsidiary)
for borrowed money that (i) pursuant to Generally Accepted Accounting Principles as of the date
hereof, would be classified as a non-current liability, and (ii) the repayment of which is
guaranteed by the Company or any Subsidiary.
“Credit Party” means the Administrative Agent, any Issuing Bank or any other Bank.
“Defaulting Lender” means any Bank that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, (b) has notified the Company or any Credit Party in writing,
or has made a public statement to the effect, that it does not intend or expect to comply with any
of its funding obligations under this Agreement or generally under other agreements in which it
commits to extend credit, (c) has failed, within three Business Days after request by a Credit
Party or the Company, acting in good faith, to provide a certification in writing from an
authorized officer of such Person that it will comply with its obligations to fund prospective
Loans and participations in then outstanding Letters of Credit under this Agreement, provided that
such Bank shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Person’s
receipt of such written certification in form and substance satisfactory to it and the
Administrative Agent, or (d) has become the subject of a Bankruptcy Event.
“Documentation Agents” means BNP Paribas, Xxxxx Fargo Bank, N.A. and The Royal Bank of
Scotland plc in their capacity as Documentation Agents for the Banks pursuant to this Agreement.
“Effective Date” means any Business Day designated by the Company in a Borrowing
Notice, Bid Quote Request, Rate Selection Notice or Prepayment Notice as the date such borrowing,
rate selection or prepayment, as the case may be, shall become effective.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Eurodollar Rate.
“Eurodollar Interest Period” means, with respect to a Eurodollar Loan, a period of 1,
2, 3 or 6 months (or 9 or 12 months if all of the Banks agree that such periods are available to
them) commencing on a Business Day and selected by the Company in its Borrowing Notice or Rate
Selection Notice. If any Eurodollar Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the next succeeding Business Day,
provided, however, that if said next succeeding Business Day falls in a new month such Eurodollar
Interest Period shall end on the immediately preceding Business Day.
“Eurodollar Loan” means that portion of any Syndicated Loan at the time the Eurodollar
Rate is applicable thereto.
5
“Eurodollar Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the sum of (i) (a) the Base Eurodollar Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate plus (ii) the Applicable Margin.
“Event of Default” shall mean any of the events specified in Section 7,
provided that there has been satisfied any requirement in connection with such event for
the giving of notice, or the lapse of time, or the happening of any further condition, event or
act.
“Extraordinary Item” means extraordinary items and cumulative effect of changes in
accounting principles that are non-cash as those items are accounted for pursuant to Generally
Accepted Accounting Principles, and in addition, any other non-recurring and/or non-operating
charges or credits up to a maximum amount from May 29, 2011 to the Termination Date of 20% of the
Company’s consolidated stockholders’ equity as of the quarter ended immediately preceding the last
to occur of such charge or credit.
“Facility Fee” has the meaning set forth in Section 2.4.1 herein.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement, and any regulations or official interpretations thereof.
“Federal Funds Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fitch” means Fitch Ratings Ltd., together with its successors and assigns.
“Fixed Charges” means, for any period, on a consolidated basis for the Company and its
Subsidiaries, net interest expense plus non-cancelable lease rental payments payable during such
period.
“Fixed Rate” means a rate per annum equal to either the Bid Absolute Rate or the
Eurodollar Rate.
“Fixed Rate Loan” means a Eurodollar Loan or a Bid Absolute Rate Loan.
“Generally Accepted Accounting Principles” means generally accepted accounting
principles in effect from time to time; provided that, if after the date hereof there
occurs any change in Generally Accepted Accounting Principles or in the application thereof on the
operation of any provision hereof and the Company notifies the Administrative Agent that the
Company requests an amendment to any provision hereof to eliminate the effect of such change in
Generally Accepted Accounting Principles or in the application thereof, regardless of whether any
such notice is given before or after such change in Generally Accepted Accounting
6
Principles or in the application thereof, then such provision shall be interpreted on the
basis of Generally Accepted Accounting Principles as in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
“Indenture” means that certain Indenture dated as of October 8, 1990 between the
Company and The Chase Manhattan Bank (k/n/a JPMorgan Chase Bank, N.A.), as trustee, as in effect on
the date hereof.
“Interest Period” means a Bid Interest Period or a Eurodollar Interest Period.
“Invitation for Bid Quotes” means an Invitation for Bid Quotes substantially in the
form of Exhibit H hereto completed and delivered by the Administrative Agent to the Banks in
accordance with Section 2.22.3.
“Issuing Bank” means (i) JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and (ii) each other Bank that agrees to act as an Issuing Bank
hereunder and that is approved by the Company and the Administrative Agent, in each case together
with its successors in such capacity as provided in Section 2.25(i). Each Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing
Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
“JPMCB” means JPMorgan Chase Bank, N.A., in its individual capacity, together with its
successors and permitted assigns.
“LC Collateral Account” has the meaning assigned to such term in Section
2.25(j).
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.
“LC Exposure” means, at any time, the sum of the Commercial LC Exposure and the
Standby LC Exposure. The LC Exposure of any Bank at any time shall be its Pro Rata share of the
aggregate LC Exposure.
“Letter of Credit” means any letter of credit issued pursuant to this
Agreement.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any agreement to give any of the foregoing), conditional sale or other title
retention agreement, and any lease in the nature of security.
“Loan” means any loan made under this Agreement.
“Loan Closing Date” means a Revolving Credit Loan Closing Date or a date a Bid
Absolute Rate Loan is made.
7
“Loan Documents” means the Agreement, any Letter of Credit applications and the Notes.
“Material Subsidiary” means a Subsidiary that has total assets, determined in
accordance with Generally Accepted Accounting Principles, in excess of 20% of the Company’s total
consolidated assets, determined in accordance with Generally Accepted Accounting Principles.
“Minimum Notice Period” means a period commencing no later than 11:00 a.m. New York
City time (i) on the Effective Date of an Alternate Base Rate borrowing or rate selection and (ii)
three Business Days prior to the Effective Date of a Eurodollar Rate borrowing, prepayment or rate
selection.
“Moody’s” means Xxxxx’x Investors Service, Inc., together with its successors and
assigns.
“Non-U.S. Bank” means a Bank that is not incorporated under the laws of the United
States of America or a state thereof.
“Notes” means collectively the Syndicated Notes and the Bid Notes and “Note” means any
one of such Notes.
“Obligations” means all unpaid principal and interest in respect of the Loans, all LC
Exposure, facility fees and all other obligations of the Company or any Subsidiary to the Banks or
to any Bank, or to the Administrative Agent, the Issuing Banks or to any Issuing Bank, or the
Syndication Agent, in each case arising under the Loan Documents.
“Officer’s Certificate” shall mean a certificate signed in the name of the Company by
any Authorized Officer.
“Parent” means, with respect to any Bank, any Person as to which such Bank is,
directly or indirectly, a subsidiary.
“Participant Register” has the meaning given thereto in Section 10.1.4(c)
hereof.
“Person” shall mean and include an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an estate, an unincorporated organization and a
government, domestic or foreign, or any department or agency or political subdivision thereof.
“Potential Default” means an event which but for the lapse of time, the giving of
notice or the happening of any further condition, event or act would constitute an Event of
Default.
“Prepayment Notice” means a written, telex, telecopy or telephonic notice by the
Company to the Administrative Agent pursuant to Section 3 specifying the amount of
principal to be prepaid and the Effective Date of such prepayment.
8
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMCB as its prime rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
“Prior Agreement” means that certain Long-Term Revolving Credit Agreement dated as of
December 16, 2005 by and among the Company, certain financial institutions from time to time
parties thereto as Banks and JPMorgan Chase Bank, N.A., as Administrative Agent.
“Profit Before Taxes and Extraordinary Items” means on a consolidated basis for any
fiscal period of the Company, earnings of the Company and its Subsidiaries (exclusive of
Extraordinary Items) before provision for taxes in respect of, or measured by, income or excess
profits for such period.
“Pro Rata” means, with respect to any Bank, the percentage of the total Commitments
represented by such Bank’s Commitment. If the Commitments have terminated or expired, Pro Rata
shall be determined based upon the Commitments most recently in effect, giving effect to any
assignments; provided, that, in accordance with and subject to Section 2.24, when a
Defaulting Lender exists, such Defaulting Lender’s Commitment shall be excluded from any
determination hereof; provided, further, that no non-Defaulting Lender’s Commitment shall
increase as a result of such exclusion.
“Rate Option” means the Eurodollar Rate or the Alternate Base Rate.
“Rate Selection Notice” means a written, telex or telephonic notice by the Company to
the Administrative Agent specifying (i) the principal amount of the outstanding Syndicated Loans
that shall be governed by each Eurodollar Rate, if any, (ii) the Eurodollar Interest Period
applicable to each such Eurodollar Loan and (iii) the Effective Date of each such Eurodollar Rate
selection.
“Register” has the meaning given thereto in Section 10.1.1(b) hereof.
“Regulation D” means Regulation D of the Board (as modified) and shall include any
successor or other regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation U” means Regulation U of the Board (as modified) and shall include any
successor or other regulation or official interpretation of said Board relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks
of the Federal Reserve System.
“Relevant Taxes” means, with respect to any payment under this Agreement, any tax
other than (i) net income tax, a franchise tax or a branch profits tax, in each case imposed by the
United States of America, the United Kingdom or by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its principal office is
located or, in the case of any Bank in which its Applicable Lending Installation is located), (ii)
except in the case of an assignee pursuant to a request by the Company under this Agreement, any
withholding tax applicable to any Bank, any Issuing Bank or the Administrative
9
Agent on the date on which such Person becomes a party to this Agreement (or, in the case of a
Bank, designates a new Applicable Lending Installation), (iii) taxes imposed by FATCA and (iv)
taxes imposed if such Person: (a) is not entitled, on the date on which such Person becomes a party
to this Agreement, to submit Form W-8BEN, Form W-8ECI, a certificate substantially in the form of
the Exhibit C hereto, or any other form, certificate or documentation so as to meet its obligations
to submit such form, certificate or documentation pursuant to Section 2.12.1; (b) shall
have submitted an improper form or certificate; (c) shall have failed to submit any form,
certificate or documentation which it was required to submit pursuant to Section 2.12.1 and
required or entitled to file under applicable law (to the extent such taxes would not have been
imposed if a proper form or certificate had been submitted); or (d) shall have failed to provide in
a timely manner any notification required by Section 2.12.2.
“Required Banks” means, at any time, Banks having Revolving Exposures and unused
Commitments representing more than 50% of the sum of the total Revolving Exposures and unused
Commitments at such time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article 7, and for all purposes after the Loans become due and payable pursuant
to Article 7 or the Commitments expire or terminate, the outstanding Bid Absolute Rate Loans of the
Banks shall be included in their respective Revolving Exposures in determining the Required Banks;
provided, that no Defaulting Lender (including its Loans and Commitments) shall be included
in any determination of Required Banks.
“Revolving Credit Loan Closing Date” means any Business Day on which the
Administrative Agent has actually received within the applicable Minimum Notice Period prior notice
from the Company for a Syndicated Loan, specifying such date and requesting the amount to be
borrowed thereon and on which the applicable conditions set forth in Section 9 hereof are
satisfied.
“Revolving Exposure” means, with respect to any Bank at any time, the sum of the
outstanding principal amount of such Bank’s Syndicated Loans and LC Exposure.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business, together with its successors and assigns.
“Section” means a numbered section of this Agreement, unless another document is
specifically referenced.
“Standby LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount
of all outstanding standby Letters of Credit plus (b) the aggregate amount of all LC
Disbursements relating to standby Letters of Credit that have not yet been reimbursed by or on
behalf of the Company. The Standby LC Exposure of any Bank at any time shall be its Pro Rata share
of the aggregate Standby LC Exposure.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency
10
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Bank under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
“Subsidiary” means any Person whose accounts are consolidated with the accounts of the
Company in accordance with Generally Accepted Accounting Principles for purposes of preparing the
financial statements referred to in Section 5.1.
“Syndicated Loan” means a Loan made pursuant to Section 2.1.1 hereof.
“Syndicated Note” means a promissory note in substantially the form of Exhibit A
hereto, dated the date hereof, duly executed and delivered to the Administrative Agent by the
Company and payable to the order of a Bank in the amount of its Commitment.
“Syndication Agent” means Bank of America, N.A., in its capacity as syndication agent
for the Banks pursuant to this Agreement.
“Termination Date” means, subject to Section 2.18, September 14, 2016 or, with
respect to any individual Bank, such earlier date, if any, on which such Bank’s Commitment is
reduced to zero or terminated pursuant to and in accordance with this Agreement.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Eurodollar Rate or the Alternate Base Rate.
The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.
2. TERMS.
2.1. Syndicated Loans.
2.1.1. Commitment to Make Syndicated Loans. Each Bank severally agrees to make, at
the option of the Company, Syndicated Loans to the Company from time to time from the date hereof
to the Termination Date on the Effective Dates specified in Borrowing Notices received by the
Administrative Agent not less than the Minimum Notice Period prior to such Effective Date;
provided, however, the Banks shall not be obligated to make any Syndicated Loan
under this Section 2.1.1 to the extent that the sum of the outstanding principal amount of
all Syndicated Loans and all Bid Absolute Rate Loans and LC Exposures would exceed the amount of
the then applicable Commitments of all the Banks and provided further, no Bank
shall be obligated to make any Syndicated Loan to the extent that immediately after the making of
any such Syndicated Loan such Bank’s Pro Rata share of the outstanding Syndicated Loans under this
Section 2.1.1 and outstanding LC Exposures would exceed such Bank’s Commitment. Syndicated
Loans will be made available subject to the conditions set forth in Section 9.2.
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2.1.2. Revolving Credit. Subject to the terms of this Agreement, the Company may
borrow, repay and reborrow Loans prior to the Termination Date. Each Bank’s Commitment shall
expire on its Termination Date.
2.1.3. Payments. Any Loans outstanding on a Bank’s Termination Date shall be paid in
full on such date unless prepaid prior to such date in accordance with the terms of this Agreement.
2.1.4. Syndicated Notes. Any Bank may request that Syndicated Loans made by it be
evidenced by a Syndicated Note. In such event, the Company shall prepare, execute and deliver to
such Bank a Syndicated Note payable to the order of such Bank (or, if requested by such Bank, to
such Bank and its registered assigns).
2.2. Syndicated Loan Borrowings.
2.2.1. Company Notice. The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice (within the applicable Minimum Notice Period) of each borrowing
hereunder, stating the aggregate amount of the Syndicated Loans requested under Section
2.1, the Effective Date of the Syndicated Loans, the Interest Period applicable thereto, and
specifying whether such borrowing shall consist of Alternate Base Rate Loans or Eurodollar Loans
and the respective aggregate amounts of the Syndicated Loans of each type.
2.2.2. Funding. Not later than 1:00 p.m. New York City time on the Effective Date for
each borrowing under Section 2.1, each Bank shall make available to the Administrative
Agent its Pro Rata amount of the requested Syndicated Loans, to an account maintained by the
Administrative Agent with JPMCB, in immediately available funds, for the account of the Company;
provided that Alternate Base Rate Syndicated Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.25(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank. The amount so received by the Administrative Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company maintained with JPMCB, or such other
account, in either case as specified in writing by an Authorized Officer (or in such other manner
as may be specified by the Company and is reasonably acceptable to the Administrative Agent).
2.3. Bank Records of Loans and Payments. Each Bank is hereby authorized to record the
principal amount of each Syndicated Loan made under Section 2.1 and each repayment of any
such Syndicated Loan on the schedule attached to its Syndicated Note; however, failure to do so
shall not affect the Company’s obligations thereunder.
2.4. Fees, Removal of Banks and Changes of Commitments.
2.4.1. Facility Fee. (a) The Company agrees to pay to the Administrative Agent for
the account of each Bank a facility fee (the “Facility Fee”) equal to the Applicable
Facility Fee Rate on such Bank’s average daily Commitment (without regard to usage) from the date
hereof to and including the Termination Date, payable in arrears on the first day of each March,
June, September, and December to occur during the term of this Agreement and on the Termination
Date, with the first such payment to occur on December 1, 2011.
12
(b) The Company agrees to pay (i) to the Administrative Agent for the account of each Bank a
participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Margin used to determine the interest rate applicable to Eurodollar Loans, on
the average daily amount of such Bank’s LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the date hereof to but
excluding the later of the date on which such Bank’s Commitment terminates and the date on which
such Bank ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall
accrue at such rate (not in excess of 0.125% per annum) as agreed upon by the Company and the
applicable Issuing Bank on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) with respect to Letters of Credit issued by
such Issuing Bank, during the period from and including the date hereof to but excluding the later
of the date of termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as such Issuing Bank’s customary and standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees shall be payable quarterly in arrears on the first day of each
March, June, September, and December to occur during the term of this Agreement and on the
Termination Date, with the first such payment (if applicable) to occur on December 1, 2011;
provided that all such fees shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable
within 10 Business Days after invoice and demand. All participation fees and fronting fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed.
2.4.2. Banks. Subject to the provisions of Section 2.4.4 and in accordance
with Section 2.23, so long as no Event of Default shall have occurred and be continuing or
would result therefrom, the Company may, from time to time with the consent of the Administrative
Agent, add additional banks as parties to this Agreement; provided that if an executive
officer of the Company knows that a Potential Default exists at the time such bank is to be added
hereto, the Company shall provide written notice thereof to the Administrative Agent and such bank
prior to it agreeing (or declining) to become a party hereto. Unless the Company otherwise reduces
the Commitments in accordance with the terms hereof or removes a Bank pursuant to the terms hereof,
the addition of any new bank shall increase the aggregate Commitments; provided,
however, that the aggregate Commitments shall at no time exceed $2,000,000,000 and such
increase shall comply with Sections 2.23(a), (d) and (e). Any such
new bank shall execute a consent in substantially the form attached hereto as Exhibit K, which
executed consent shall be provided by the Company to the Administrative Agent. In addition, the
Company may, from time to time, remove any Bank from Schedule 1 by written notice to each Bank and
the Administrative Agent, so long as the Company has satisfied all Obligations (other than
contingent obligations in respect of which no claim has been made) to such removed Bank as of the
effective date of such removal. Upon such removal, the removed Bank shall no longer be deemed to
be a party to the Agreement and shall cease to have any rights or obligations pursuant hereto
except it shall continue to be entitled to the indemnities set forth in Sections 2.12.4
(subject to the requirements of Section 2.12) and 2.15.
13
2.4.3. Commitments. The Company may permanently reduce (or terminate in full) the
aggregate Commitments in whole or in part in multiples of $25,000,000, without penalty, upon at
least three Business Days written notice to the Administrative Agent, which shall specify the
amount of any such reduction, provided, however, that (a) the Commitments may not
be reduced below the Aggregate Revolving Exposure (with the understanding that if the Aggregate
Revolving Exposure consists solely of LC Exposure, then the Company may complete the applicable
reduction so long as such LC Exposure is cash collateralized on terms and conditions and in amounts
in each case reasonably satisfactory to the Administrative Agent and the Issuing Banks prior to or
substantially contemporaneously with giving effect to such reduction), and (b) any notice of
termination of the Commitments may state that such notice is conditioned upon the effectiveness of
other credit facilities, incurrence of other indebtedness, or consummation of another transaction,
in which case such notice may be revoked by the Company (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied. In addition, subject
to the provisions of Sections 2.4.4 and 2.23, and so long as the aggregate Commitments do
not at any time exceed $2,000,000,000, the Company may, from time to time, increase any Bank’s
Commitment so long as such Bank consents in writing to such increased Commitment.
2.4.4. Consents. Prior to adding any bank to Schedule 1 pursuant to Section
2.4.2 or increasing any Bank’s Commitment pursuant to Section 2.4.3, the Company shall
give written notice to each of the Administrative Agent and the Issuing Banks specifying the action
to be taken and the effective date of such action and, if applicable, a copy of the notice of
Potential Default referenced in Section 2.4.2. Each of the Administrative Agent and the
Issuing Banks shall have five (5) Business Days from receipt of such notice to provide to the
Company written notice that either the Administrative Agent or such Issuing Bank does not consent
to such action; provided that such consent shall not be unreasonably withheld, conditioned
or delayed. Within five (5) Business Days of receipt of any such notice, the Company shall rescind
such action and notify the Administrative Agent and the Issuing Banks that such action will not be
taken.
2.4.5. Notice. Within ten (10) Business Days following the effective date of the
addition or removal of any Bank or the increase or decrease of any Commitment, the Administrative
Agent shall notify each Bank of such change.
2.5. Determination of Applicable Margin and Applicable Facility Fee Rate. The
Administrative Agent, using the per annum rates set forth below, shall from time to time determine
the applicable margin used (in part) to calculate the Eurodollar Rate, the Alternate Base Rate and
the participation fee for Letters of Credit (the “Applicable Margin”), and the rate used to
calculate the Facility Fee (the “Applicable Facility Fee Rate”). The following per annum
rates correspond with ratings of the Company’s unsecured senior long-term indebtedness (without
giving effect to any third-party credit enhancement) by S&P, Xxxxx’x and Fitch.
14
Applicable | Applicable | Applicable | ||||||||||
Eurodollar Rate | Alternate Base | Facility Fee | ||||||||||
Pricing Levels | Margin | Rate Margin | Rate | |||||||||
I. ≥
A- or A3 |
0.90 | % | 0 | % | 0.10 | % | ||||||
II. ≥ BBB+ or Baa1 |
1.00 | % | 0 | % | 0.125 | % | ||||||
III. ≥ BBB or Baa2 |
1.10 | % | 0.10 | % | 0.15 | % | ||||||
IV. ≥ BBB- or Baa3 |
1.30 | % | 0.30 | % | 0.20 | % | ||||||
V. < BBB- and Baa3 |
1.50 | % | 0.50 | % | 0.25 | % |
For purposes of this Section 2.5, with respect to the rating of the Company’s unsecured
senior long-term indebtedness (without giving effect to any third-party credit enhancement) on any
date of determination, (i) “Pricing Level I” means a rating of A- or higher by S&P, or a
rating of A- or higher by Fitch, or a rating of A3 or higher by Xxxxx’x, (ii) “Pricing Level
II” means a rating of BBB+ or higher by S&P, or a rating of BBB+ or higher by Fitch, or a
rating of Baa1 or higher by Xxxxx’x, and that the Company does not qualify for Pricing Level I,
(iii) “Pricing Level III” means a rating of BBB or higher by S&P, or a rating of BBB or
higher by Fitch, or a rating of Baa2 or higher by Xxxxx’x, and that the Company does not qualify
for either Pricing Level I or Pricing Level II, (iv) “Pricing Level IV” means a rating of
BBB- or higher by S&P, or a rating of BBB- or higher by Fitch, or a rating of Baa3 or higher by
Xxxxx’x, and that the Company does not qualify for Pricing Level I, Pricing Level II, or Pricing
Level III, and (v) “Pricing Level V” means a rating of lower than BBB- by S&P, a rating of
lower than BBB- by Fitch and a rating lower than Baa3 by Xxxxx’x. If the Company’s unsecured
senior long-term indebtedness (without giving effect to any third-party credit enhancement) is
split-rated by S&P, Fitch and Xxxxx’x, as applicable, and the ratings differential is one level,
the better rating will apply. For example, if the S&P and Fitch rating on any date of
determination is A- and the Xxxxx’x rating on such date is Baa1, a rating of A-/A3 will apply and
Pricing Level I will be in effect on such date. If the Company’s unsecured senior long-term
indebtedness (without giving effect to any third-party credit enhancement) is split-rated by S&P,
Fitch and Xxxxx’x, as applicable, and the ratings differential is two levels or more, then the
operative rating shall be the middle rating. For example, if the S&P rating on any date of
determination is A-, the Xxxxx’x rating on such date is Baa1, and the Fitch rating on such date is
BBB, a rating of BBB+/Baa1 will apply and Pricing Level II will be in effect. If the Company’s
unsecured senior long-term indebtedness (without giving effect to any third-party credit
enhancement) is split-rated by one of S&P, Fitch or Xxxxx’x, as applicable, and the other two
agencies share the same rating and the ratings differential is two levels or more, then the
operative rating shall be the rating shared by the two agencies. For example, if the S&P rating on
any date of determination is BBB, the Xxxxx’x rating on such date is A3, and the Fitch rating on
such date is BBB, a rating of BBB/ Baa2 will apply and Pricing Level III will be in effect on such
date. The credit rating in effect on any date for purposes of this Section 2.5 is that
rating in effect at the close of business on such date. If at any time neither S&P nor Xxxxx’x
provides a rating of the Company’s senior unsecured long-term indebtedness (without third-party
credit enhancement), Pricing Level V shall at such time be in effect.
2.6. Interest Rates and Selection of Eurodollar Rates. Except as provided in this
Section 2.6, the Syndicated Notes shall bear interest at the Alternate Base Rate. Subject
to the terms and conditions of this Agreement, the Company may elect from time to time to pay
interest at a Eurodollar Rate and for a Eurodollar Interest Period selected hereunder for all or
any portion of the Syndicated Loans, by giving the Administrative Agent the appropriate Borrowing
15
Notice (in the case of a new Syndicated Loan) or a Rate Selection Notice (in the case of an
existing Syndicated Loan) in not less than the Minimum Notice Period applicable thereto. The
unpaid principal amount of each Eurodollar Loan shall bear interest from and including the first
day of the Eurodollar Interest Period applicable thereto to (but not including) the last day of
such Eurodollar Interest Period at the Eurodollar Rate applicable to such Loan, and during such
Eurodollar Interest Period the Rate Option applicable to such Eurodollar Loan shall not be changed
by the Company or any Bank. If, at the end of an Interest Period for an outstanding Eurodollar
Loan, the Company fails to select a new Rate Option by giving a Rate Selection Notice in not less
than the Minimum Notice Period provided therefor or to pay such Eurodollar Loan, then such Loan
shall be an Alternate Base Rate Loan on and after the last day of such Eurodollar Interest Period
until paid or until the Effective Date of a new Rate Option. The Company may not select a
Eurodollar Rate to apply to any portion of the Syndicated Loans if, on the Effective Date of such
selection, there exists an Event of Default or Potential Default.
2.7. Restrictions on Syndicated Loans, Interest Periods and Conversion. Each new
Syndicated Loan and each conversion of a Syndicated Loan to a new Rate Option shall be in an amount
of $25,000,000 or an integral multiple of $5,000,000 in excess thereof. Eurodollar Loans at any
one time outstanding may not be divided into more than 10 Interest Periods without the prior
consent of the Administrative Agent. No Eurodollar Interest Period for any Loan made by a Bank
shall extend beyond such Bank’s Termination Date.
2.8. Interest Basis and Payment Dates. Interest on Alternate Base Rate Loans shall be
calculated for actual days elapsed on the basis of a 365 or 366 day year and interest on Eurodollar
Loans and Bid Absolute Rate Loans and fees shall be computed on the basis of a year of 360 days and
actual days elapsed. The interest rate on Alternate Base Rate Loans shall change when and as the
Alternate Base Rate changes. Interest accrued on Alternate Base Rate Loans shall be payable
quarterly in arrears on the 1st day of each March, June, September and December to occur after the
date hereof, and upon any prepayment or at maturity, whether by acceleration on the Termination
Date or otherwise. Interest accrued on Fixed Rate Loans shall be payable on the last day of the
applicable Interest Period and, in the case of an Interest Period longer than three months (or
longer than 90 days in the case of a Bid Absolute Rate Loan), interest shall also be payable every
three months (or every 90 days in the case of a Bid Absolute Rate Loan) during the Interest Period,
upon any prepayment (whether due to acceleration or otherwise) and on the Termination Date. If any
Loan is not paid when due, whether at its scheduled maturity or upon acceleration, without
duplication and notwithstanding anything in any Loan Document to the contrary, interest shall
thereafter be payable on demand at the rate set forth in Section 7.2.2. Interest shall be
payable for the day a Loan is made but not for the day of any payment on the amount paid if payment
is received by the Administrative Agent prior to 1:00 p.m. New York City time.
2.9. Payments.
2.9.1. Payment to Administrative Agent. Except to the extent otherwise provided
herein, all payments of principal, interest and other amounts to be made by the Company under this
Agreement, the Letters of Credit and the Notes shall be made in U.S. Dollars, in immediately
available funds, to the Administrative Agent to an account maintained by the Administrative Agent
with JPMCB or as otherwise directed by the
16
Administrative Agent, not later than 1:00 p.m. New York
City time on the date on which such payment shall become
due (and the Administrative Agent may in its discretion deem any payment made after such time
on such due date to have been made on the next succeeding Business Day).
2.9.2. Application of Payments. Without prejudice to the other provisions of this
Agreement, the Company shall, at the time of making each payment under this Agreement, any Letters
of Credit or any Note, specify to the Administrative Agent the Loans, the Letters of Credit or
other amounts payable by the Company hereunder to which such payment is to be applied (and if it
fails to so specify, or if an Event of Default has occurred and is continuing, the Administrative
Agent may distribute such payment to the Issuing Banks or the Banks in such manner as it or the
Required Banks may determine to be appropriate, subject to Section 2.19 hereof).
2.9.3. Payment to Banks. Each payment received by the Administrative Agent under this
Agreement or any Note for account of a Bank shall be paid promptly to such Bank, in immediately
available funds, for account of such Bank’s Applicable Lending Installation for the Loan in respect
of which such payment is made.
2.9.4. Extension for Business Day. If the due date of any payment under this
Agreement or any Note would otherwise fall on a day which is not a Business Day such date shall
(unless otherwise expressly provided herein) be extended to the immediately succeeding Business Day
and interest shall be payable for any principal so extended for the period of such extension.
2.10. Applicable Lending Installations. Each Bank may book the Fixed Rate Loans at
any Applicable Lending Installation selected by the Bank and may change the Applicable Lending
Installation from time to time, provided that a Bank may not change its Applicable Lending
Installation to a new Applicable Lending Installation if, at the time of such change, the Company
would incur additional costs pursuant to Sections 2.12 or 2.13. All terms of this
Agreement shall apply to any such Applicable Lending Installation and the Notes shall be deemed
held by each Bank for the benefit of such Applicable Lending Installation. Each Bank may, by
written or telex notice to the Company and the Administrative Agent, designate an Applicable
Lending Installation through which Fixed Rate Loans are made and for whose account Fixed Rate Loan
payments are to be made.
2.11. Payment or Failure to Pay or Borrow on Certain Dates. If (i) any payment or
interest rate conversion of a Fixed Rate Loan occurs on a date which is not the last day of an
Interest Period, or (ii) a Fixed Rate Loan is not made on the date specified in a Borrowing Notice,
Bid Quote Request or Rate Selection Notice for any reason other than default by the Banks, the
Company will indemnify each Bank for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed Rate Loan, but in any case excluding loss of anticipated profit.
2.12. Taxes.
17
2.12.1. Certification. Each Bank, each Issuing Bank and the Administrative Agent shall
submit to the Company on or prior to the date on which such Bank, such Issuing
Bank or Administrative Agent becomes a party to this Agreement, two duly completed and signed
copies of Form W-8BEN (relating to such Person and entitling it to a complete exemption from
withholding on all amounts of interest and original issue discount to be received by such Person
pursuant to this Agreement), Form W-8ECI (relating to all amounts of interest and original issue
discount to be received by such Person pursuant to this Agreement) of the United States Internal
Revenue Service, a certificate substantially in the form of Exhibit C hereto, or any other form,
certificate or documentation prescribed by law or as reasonably requested by the Company or the
Administrative Agent as will permit payments required to be made in connection with the Notes and
this Agreement to be made without, or at a reduced rate of, withholding. Thereafter and from time
to time, each Bank, each Issuing Bank and the Administrative Agent shall, subject to Section
2.12.2 and 2.12.3, submit to the Company such additional duly completed and signed
copies of one or the other of such forms (or such successor, additional or replacement forms as
shall be adopted from time to time by the relevant United States taxing authorities) or of such a
certificate, form or other documentation as required by, and at the time or times prescribed by,
applicable law, or as the Company or the Administrative Agent may request from such Person which
may be required by United States Federal, State, local or foreign tax authorities or under then
current applicable law or regulations in connection with United States Federal, State, local or
foreign withholding taxes on, or backup withholding in respect of, payments to be received by such
Person under the Notes and this Agreement. In addition, if a payment made to a Bank or an Issuing
Bank under this Agreement would be subject to U.S. Federal withholding tax imposed by FATCA if such
Bank or such Issuing Bank were to fail to comply with the applicable reporting requirements of
FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such
Bank or such Issuing Bank shall deliver to the Company, at the time or times prescribed by law and
at such time or times reasonably requested by the Company, such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Company as may be necessary for the Company to
comply with its obligations under FATCA, to determine that such Bank or such Issuing Bank has or
has not complied with such Bank’s or such Issuing Bank’s obligations under FATCA and, as necessary,
to determine the amount to deduct and withhold from such payment. Solely for purposes of this
Section 2.12.1, “FATCA” shall include any amendments made to FATCA after the date of this
Agreement.
2.12.2. Change of Law; Defaulting Lender. If any Bank, any Issuing Bank or the
Administrative Agent determines, as a result of any change in applicable law, regulation or treaty,
or in any official publication or interpretation thereof, that it is unable (after taking any
reasonable steps available to it) to submit to the Company any form or forms or other certification
that such party would otherwise have been obliged to submit pursuant to Section 2.12.1, or
that such party is required to withdraw or cancel any such form or forms or other certification
previously submitted, or if any Bank shall be unable to extend credit to the Company pursuant to
Section 10.3, then such party shall promptly notify the Company of such fact, whereupon the
Company shall, notwithstanding any provision herein to the contrary, be entitled to terminate such
Bank’s Commitment. The Company will pay all principal, interest, fees, costs and other amounts due
under Section 2.11 to such Bank in connection with any prepayment hereunder. In addition,
if any Bank becomes a Defaulting Lender, then the
18
Company shall, notwithstanding any provision
hereof to the contrary, be entitled to terminate such Bank’s Commitment. The Company will pay all
principal, interest, fees, costs and other
amounts due under Section 2.11 to such Bank in connection with any prepayment
hereunder. The Company may, at its sole expense, upon notice to a Defaulting Lender and the
Administrative Agent, require such Defaulting Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 10.1.1), all its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Bank, if a Bank accepts such assignment);
provided that (i) the Company shall have received the prior written consent of the
Administrative Agent (and if a Commitment to make Syndicated Loans is being assigned, each Issuing
Bank), which consent shall not unreasonably be withheld, conditioned or delayed, and (ii) such
Defaulting Lender shall have received, or in connection with such assignment shall receive, payment
of an amount equal to the outstanding principal of its Loans, accrued interest hereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all other amounts). A Bank
shall not be required to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Bank or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply. The LC Exposure of any Bank terminated hereunder shall
be addressed as though such Bank were a Defaulting Lender and the provisions of Section
2.24 shall apply.
2.12.3. Withholding of Taxes; Gross-Up. If the Company or any paying agent is
required by law or regulation to make any deduction, withholding or backup withholding on account
of any Relevant Taxes hereafter imposed, levied, collected, withheld or assessed by the United
States, the United Kingdom or any other taxing authority (or any subdivision or taxing authority
thereof or therein) from any payment to any Bank, any Issuing Bank or the Administrative Agent
under this Agreement, then the amount payable in respect of such payment will be increased to the
amount which, after deduction from such increased amount of all Relevant Taxes required to be
withheld or deducted therefrom, will yield the amount required under this Agreement to be payable
with respect thereto had no such deduction, withholding or backup withholding been required.
2.12.4. Company Indemnity. Without prejudice to the provisions of Section
2.12.3 or the provisions of the Notes, if any Issuing Bank, any Bank or the Administrative
Agent on its behalf is required by law to make any payment on account of a Relevant Tax that is not
in effect or applicable on the date hereof on or in relation to any sum received or receivable
hereunder by such Issuing Bank, such Bank or the Administrative Agent on its behalf, of any
Relevant Tax liability in respect of any such payment, which payment is hereafter imposed, levied
or assessed against such Issuing Bank, such Bank or the Administrative Agent on its behalf, the
Company will, upon demand of the Administrative Agent, such Issuing Bank or such Bank, promptly
indemnify such Issuing Bank or such Bank against such payment or liability, together with any
interest, penalties and expenses payable or incurred in connection therewith or for any delay in
payment thereof.
2.12.5. Notice to Company. A Bank or an Issuing Bank intending to make a claim
pursuant to Section 2.12.4 shall notify the Administrative Agent of the event by reason of
which it is entitled to do so promptly after becoming aware of the circumstances giving rise to
19
the
claim, whereupon the Administrative Agent shall notify the Company thereof. Failure or delay on
the part of the Administrative Agent, an Issuing Bank or a Bank to demand
compensation pursuant to this Section 2.12.5 shall not constitute a waiver of such
Issuing Bank’s or such Bank’s or the Administrative Agent’s right to demand such compensation;
provided that the Company shall not be required to compensate a Bank or an Issuing Bank
pursuant to Section 2.12.4 for any such payment or liability incurred more than 180 days
prior to the date that such Issuing Bank or such Bank or the Administrative Agent on its behalf
notifies the Company of the event giving rise to such payment or liability pursuant to Section
2.12.4 and of such Issuing Bank’s or such Bank’s intention to claim compensation therefor;
provided further that, if the event giving rise to such payment or liability is retroactive, then
the 180-day period referred to above shall be extended to include the period of retroactive effect
thereof.
2.12.6. Notice of Withholding. If at any time the Company is required by law or
regulation to make any deduction, withholding or backup withholding on account of any taxes
hereafter imposed, levied, collected, withheld or assessed by the United States, the United Kingdom
or other taxing authority (or any subdivision or taxing authority thereof or therein) from any sum
payable by it hereunder (or if thereafter there is any change in the rates at which or the manner
in which such deductions or withholdings are calculated) the Company shall promptly notify the
Administrative Agent.
2.12.7. Timely Payment. If the Company makes any payment hereunder in respect of
which it is required by law or regulation to make any deduction, withholding or backup withholding
on account of any taxes hereafter imposed, levied, collected, withheld or assessed by the United
States, the United Kingdom or other taxing authority (or any subdivision or taxing authority
thereof or therein) it shall pay the full amount to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment under applicable law and shall
deliver to the Administrative Agent within thirty days after it has made such payment to the
applicable authority a receipt issued by such authority or other evidence reasonably satisfactory
to the Administrative Agent evidencing the payment to such authority of all amounts so required to
be deducted or withheld from such payment.
2.12.8. Mitigation. If any Bank or the Administrative Agent, as the case may be, is,
in its reasonable opinion, able to apply for or otherwise take advantage of any tax credit, tax
deduction or other reduction (which reduction is permanent in nature) in tax or similar benefit by
reason of any withholding or deduction made by the Company in respect of a payment made by it
hereunder which payment shall have been increased pursuant to Section 2.12.3, then such
Person will use reasonable efforts to obtain such credit, deduction or benefit and upon receipt
thereof will pay to the Company such amount (if any) not exceeding the increased amount paid by the
Company as equals the net after-tax value to such Person of such part of such credit, deduction or
benefit as it considers is allocable to such withholding or deduction having regard to all its
dealings giving rise to similar credits, deductions or benefits in relation to the same tax period
and to the cost of obtaining the same; provided that nothing herein contained shall
interfere with the right of any such Person to arrange its tax affairs in whatever manner it deems
fit and in particular no such Person shall be under any obligation to claim relief from its
corporate profits or similar tax liability in respect of any such deduction or withholding in
priority to any other reliefs, claims, credits or deductions available to it.
20
2.12.9. Bank Indemnity. Each Bank and each Issuing Bank shall severally indemnify the
Administrative Agent for any taxes (but, in the case of any taxes for which the
Company is required to indemnify or pay any additional amount to such Bank or such Issuing
Bank pursuant to Section 2.12.3 or 2.12.4, only to the extent that the Company has not already
indemnified the Administrative Agent for such taxes and without limiting the obligation of the
Company to do so) attributable to such Bank or such Issuing Bank that are paid or payable by the
Administrative Agent in connection with this Agreement and any reasonable expenses arising
therefrom or with respect thereto, whether or not such amounts were correctly or legally imposed or
asserted by the relevant taxing authority. The indemnity under this Section 2.12.9 shall
be paid within 30 days after the Administrative Agent delivers to the applicable Bank a certificate
stating the amount so paid or payable by the Administrative Agent. Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
2.12.10. Treatment of Certain Refunds. If a Bank, an Issuing Bank or the
Administrative Agent determines, in its sole discretion exercised in good faith, that it has
received a refund of any taxes at to which it has been indemnified by the Company pursuant to this
Section 2.12 (including additional amounts paid pursuant to this Section 2.12), it
shall pay to the Company an amount equal to such refund (but only to the extent of indemnity
payments made by the Company under this Section 2.12 with respect to the taxes giving rise
to such refund), net of all out-of-pocket expenses (including any taxes) of such indemnified Bank,
Issuing Bank or Administrative Agent and without interest (other than any interest paid by the
relevant governmental authority with respect to such refund). The Company, upon the request of
such Bank, such Issuing Bank or the Administrative Agent, shall repay to such Bank, such Issuing
Bank or the Administrative Agent the amount paid to the Company pursuant to the previous sentence
(plus any penalties, interest or other charges imposed by the relevant governmental authority) in
the event such Bank, such Issuing Bank or the Administrative Agent is required to repay such refund
to such governmental authority. This Section 2.12.10 shall not be construed to require any
Bank, any Issuing Bank or the Administrative Agent to make available its tax returns (or any other
information relating to this taxes which it deems confidential) to the Company or any other Person.
2.13. Increased Costs.
2.13.1. Change of Law. If, after the date hereof, by reason of any adoption of or
change in law, rule, regulation or treaty, or in the interpretation or administration thereof or
compliance by any Bank or any Issuing Bank with any request or directive (whether or not having the
force of law) by any central bank or other fiscal, monetary or other authority (including those
regarding capital adequacy):
(a) | a Bank or an Issuing Bank incurs an increased cost as a result of its having entered into and/or performed its obligations under this Agreement, and/or its maintaining its Commitment hereunder and/or making one or more Loans or issuing Letters of Credit or having participations therein hereunder; |
(b) | there is any increase in the cost to a Bank of funding or maintaining all or any of the Loans comprised in a class of loans formed by or including the |
21
Loans made or to be made by it hereunder, or any increase in the cost of issuing or participating in Letters of Credit; | |||
(c) | a Bank, an Issuing Bank or the Administrative Agent becomes subject to any taxes, duties, levies, imposts, deductions, assessments, fees, charges or withholdings, and any and all liabilities with respect to the foregoing (not being a tax for which the Company is required to indemnify or pay any additional amount to such Bank or such Issuing Bank pursuant to Section 2.12.3 or 2.12.4, nor a tax explicitly excluded from the definition of Relevant Taxes) on its loans, loan principal, letters of credit, commitment or other obligations, in each case hereunder, or its deposits, reserves, other liabilities or capital attributable thereto; or |
(d) | the amount of capital or liquidity required or expected to be maintained by any Issuing Bank or any Bank or any Person controlling any Bank or any Issuing Bank is increased because of the existence of this Agreement, the Letters of Credit issued and Loans outstanding hereunder or any Bank’s obligation to make Loans, hold participations in Letters of Credit or any Issuing Bank’s obligation to issue Letters of Credit hereunder, |
then such Bank shall comply with its obligations under Section 2.17 with a view to mitigating the Company’s obligations under this Section and the Company shall, within 15 days of receipt from such Person of the certificate described in Section 2.13.2, pay to such Person such amounts sufficient to indemnify such Person against, respectively: |
(w) | such cost; |
(x) | the lesser of (i) such increased cost and (ii) such proportion of such increased cost as is in the good faith opinion of that Person attributable to its funding or maintaining Loans and Letter of Credit related obligations hereunder; |
(y) | such liability; or |
(z) | any reduction in rate of return as a consequence of such increase in capital requirements. |
Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Agent and all requests, rules, guidelines, requirements and directives thereunder,
issued in connection therewith or in implementation thereof, and (ii) all requests, rules,
guidelines, requirements and directives promulgated by the Bank for International Settlements, the
Basel Committee on Banking Supervision (or any successor or similar authority) or the United States
or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed
a “Change of Law” for purposes of this
Section 2.13, Section 2.12.2, and each other
relevant section of this Agreement, regardless of the date enacted, adopted, issued or implemented.
22
2.13.2. Notice. A Person intending to make a claim pursuant to Section 2.13.1
shall deliver to the Company and the Administrative Agent, promptly after becoming aware of
the circumstances giving rise to the claim, a certificate to that effect specifying the event by
reason of which it is entitled to make such claim and setting out in reasonable detail the basis
and computation of such claim. Failure or delay on the part of any Person to demand compensation
pursuant to this Section 2.13.2 shall not constitute a waiver of such Person’s right to
demand such compensation; provided that the Company shall not be required to compensate
such Person pursuant to Section 2.13.1 for any increased costs or reductions incurred more
than 180 days prior to the date that such Person notifies the Company and the Administrative Agent
of the event giving rise to such increased costs or reductions pursuant to Section 2.13.1
and of such Person’s intention to claim compensation therefor; provided further that, if the event
giving rise to such increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
2.14. Availability of Interest Rate. If any Bank determines that (i) maintenance of
the Eurodollar Loans at an Applicable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, (ii) deposits of a type and
maturity appropriate to match fund a Eurodollar Loan are not available or (iii) that a Eurodollar
Rate does not accurately reflect the cost of making or maintaining a Eurodollar Loan, then such
Bank may suspend the availability of the affected Rate Option provided that such suspension
shall not affect any Loans outstanding under an affected Rate Option and provided that,
notwithstanding the foregoing, each Bank shall make Alternate Base Rate Loans available to the
Company in lieu of Eurodollar Loans whose availability has been suspended.
2.15. Bank Certificates; Survival of Indemnity. To the extent reasonably possible,
each Bank shall designate an alternate Applicable Lending Installation with respect to its
Eurodollar Loans to reduce any liability of the Company to such Bank under Section 2.12 or
Section 2.13 or to avoid the unavailability of a Rate Option under Section 2.14, so
long as such designation is not disadvantageous to such Bank. A certificate of a Bank as to the
amount due under Sections 2.11, 2.12 or 2.13 and the basis for the
determination of such amount shall be final, conclusive and binding on the Company in the absence
of manifest error. Determination of amounts payable under such Sections in connection with a Fixed
Rate Loan shall be calculated as though each Bank funded the Fixed Rate Loan through the purchase
of a deposit of the type, maturity and amount corresponding to the deposit used as a reference in
determining the Fixed Rate applicable to the Loan. Unless otherwise provided herein, the amount
specified in the certificate shall be payable within 15 days after receipt by the Company of the
certificate. The obligations under Sections 2.11, 2.12 and 2.13 shall
survive payment of the Loans and termination of this Agreement.
2.16. Telephonic Notices. The Company hereby authorizes the Banks and the
Administrative Agent to extend Loans and effect rate selection choices based on telephonic
Borrowing and Rate Selection Notices made by any Person or Persons to the Administrative Agent and
which the Administrative Agent in good faith believes to be acting on behalf of the Company. The
Company agrees to promptly confirm to the Administrative Agent any telephonic Borrowing Notice or
Rate Selection Notice in writing signed by an Authorized Officer substantially in the form of
Exhibit B hereto. If the written confirmation differs in any
23
material respect from the action
taken by the Administrative Agent, the records of the Administrative Agent shall govern absent
manifest error.
2.17. Mitigation of Additional Costs or Adverse Circumstances. If, in respect of any
Bank, circumstances arise which could reasonably be expected to, including upon the giving of
notice, result in (i) an increase in the amount of any payment to be made to it or for its account
pursuant to Section 2.12, or (ii) a claim for indemnification pursuant to Sections
2.12 or 2.13, then such Bank shall, promptly upon becoming aware of the same, notify
the Administrative Agent and the Company thereof and, in consultation with the Administrative Agent
and the Company, and, to the extent that it can do so without prejudice to its own position, take
such reasonable steps as may be reasonably open to it to avoid the effects of such circumstances
(including, without limitation, the transfer of its Applicable Lending Installation to another
jurisdiction or the transfer of its rights and obligations hereunder to another financial
institution acceptable to the Company (in its sole and absolute discretion) and willing to
participate in the Agreement or the restructure of its participation in the Agreement in a manner
which will avoid the event in question and on terms mutually acceptable to such Bank and the
Company). If and so long as a Bank has been unable to take, or has not taken, steps acceptable to
the Company to mitigate the effect of the circumstances in question, such Bank shall be obligated,
at the request of the Company, to transfer all its rights and obligations hereunder, subject to
payment of all principal, interest, fees, funding losses under
Sections 2.4 and
2.11 and any other amounts due such Bank hereunder, to another financial institution
nominated by the Company and willing to participate in the Agreement in place of such Bank.
2.18. Extension of Termination Date. The Company may request an extension (subject to
each Bank’s right to deny any such requested extension) of the Termination Date in effect at any
time by submitting a request for an extension substantially in the form of Exhibit I to the
Administrative Agent (an “Extension Request”) not more than 90 days and not less than 45
days prior to each anniversary of this Agreement. The request shall specify (i) the new
Termination Date, which shall be one year after the Termination Date then in effect, and (ii) the
date (which must be at least 45 days after the Extension Request is delivered to the Administrative
Agent) as of which the next Termination Date shall be effective (the “Extension Date”).
The failure of the Company to request an extension on any applicable anniversary date shall not
prevent the Company from requesting an extension on a future anniversary date under this
Section 2.18. Promptly upon receipt of an Extension Request, the Administrative Agent
shall notify each Bank of the contents thereof and shall request each Bank to approve the Extension
Request. Each Bank approving the Extension Request shall deliver its written Extension Acceptance
in the form of Exhibit J (“Acceptance of Extension”) no later than 15 days after receipt of
notice from the Administrative Agent. An extension hereunder shall only be effective if an
Acceptance of Extension is received by the Administrative Agent from the Required Banks within the
time period set forth above. Failure of a Bank to respond to an Extension Request shall be deemed
a denial of such request. If any Bank does not accept such extension, then either (i) on the
Termination Date then in effect with respect to such Bank (without giving effect to the Extension
Request rejected by such Bank), (a) the Company shall pay to such Bank all amounts then payable to
such Bank under this Agreement and the Note on its applicable Termination Date and (b) such Bank’s
Commitment shall terminate on the Termination Date applicable to such Bank or (ii) the Company may,
with the consent of the Administrative Agent (such consent not to be unreasonably withheld,
conditioned or delayed),
24
remove such Bank pursuant to the terms of Section 2.4. In
addition, if the Aggregate Revolving Exposure shall exceed the Commitments as of such date, the
Company shall prepay the Loans and/or cash collateralize LC Exposure (in such amounts and on terms
and conditions reasonably
satisfactory to the Administrative Agent and the Issuing Banks) prior to such date so that the
Aggregate Revolving Exposure is equal to or less than the aggregate Commitments remaining on such
date after giving effect to the applicable terminations or removals. No extension pursuant to this
Section 2.18 shall be effective as to any Bank unless, on the applicable Extension Date (a)
no Event of Default shall exist and (b) if an executive officer of the Company knows that a
Potential Default shall exist or would result upon giving effect to such extension, the Company
shall provide written notice thereof to the Administrative Agent and such Bank prior to such Bank
agreeing to (or declining) the Extension Request.
2.19. Pro Rata Treatment. Except to the extent otherwise expressly provided in this
Agreement:
2.19.1. Borrowings, Fees, Etc. Each Syndicated Loan hereunder shall be made from the
Banks, each payment of fees shall be made for account of the Banks, and each termination or
reduction of the amount of the Commitments shall, except as set forth in Sections 2.4.2,
2.4.4, 2.12, 2.17, 2.18, 2.20 and 2.21, be applied
to such Commitments of the Banks, Pro Rata according to the amounts of their unused Commitments.
The making, conversion and continuation of Loans (other than Bid Absolute Rate Loans) of any type
shall be Pro Rata among the Banks according to the amounts of their Commitments.
2.19.2. Payment of Principal and Interest. Except as provided in Sections
2.4.2, 2.4.4, 2.12, 2.13, 2.14, 2.17, 2.18,
2.20, 2.21 and 2.22, each payment and prepayment by the Company of
principal of or interest on the Loans shall be made to the Administrative Agent for account of the
Banks holding Loans of such type Pro Rata in accordance with the respective unpaid principal
amounts thereof.
2.19.3. Application of Insufficient Payments. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
2.20. Non-Receipt of Funds by the Administrative Agent. Unless the Administrative
Agent shall have been notified by a Bank or the Company prior to the date (or with respect to
Alternate Base Rate Loans by a Bank, prior to the time) on which it is scheduled to make payment to
the Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be made by it
hereunder or (in the case of the Company) a payment to the Administrative Agent for account of one
or more of the Banks hereunder (such payment being herein called the “Required Payment”),
which notice shall be effective upon receipt by the Administrative Agent, that it does not intend
to make the Required Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in
25
reliance upon such assumption (but shall not be
required to), make the amount thereof available to the intended recipient(s) on such date and, if
such Bank or the Company (as the case may be) has not in fact made the Required Payment to the
Administrative Agent by the close of business
on the date due, the recipient(s) of such payment shall, on demand, repay to the
Administrative Agent the amount so made available together with interest thereon in respect of each
day during the period commencing on and including the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such amount at a rate per
annum equal to the Federal Funds Rate less 0.50% per annum for each such day. If any Bank shall
fail to make any payment required to be made by it as and when required under this Agreement or
otherwise be a Defaulting Lender, then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Bank for the benefit of the Administrative Agent or
the Company to satisfy such Bank’s obligations (including unfunded Loans) to such Person hereunder
until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a
segregated account as cash collateral for, and application to, any future funding obligations of
such Bank hereunder in the case of each of clauses (i) and (ii) above, in any order as determined
by the Administrative Agent in its discretion.
2.21. Illegality. If at any time it is unlawful for a Bank to fund or allow to remain
outstanding all or any of the Loans made or to be made by it hereunder, then such Bank shall,
promptly after becoming aware of the same, deliver to the Company and the Administrative Agent a
certificate to that effect. Thereafter such Bank shall not be obligated to make Loans hereunder
and the amount of its Commitment shall be reduced to zero and, if unlawful for such Loans to remain
outstanding, all Loans made by such Bank shall be immediately repaid in full together with interest
accrued thereon and all other amounts payable hereunder with respect thereto including funding
losses under Section 2.11. For purpose of such Bank’s LC Exposure, such Bank shall be
treated as a Defaulting Lender, and its LC Exposure shall be addressed pursuant to Section
2.24.
2.22. Bid Option.
2.22.1. Bid Option; Repayment and Effect of Bid Absolute Rate Loans. (a) In addition
to Syndicated Loans pursuant to Section 2.1, but subject to the terms and conditions set
forth in this Agreement (including, without limitation, the limitation set forth in Section
2.1 as to the maximum aggregate principal amount of all outstanding Loans hereunder), the
Company may, as set forth in this Section 2.22.1, request the Banks, prior to the
Termination Date, to make offers to make Bid Absolute Rate Loans to the Company. Each Bank may,
but shall have no obligation to, make such offers and the Company may, but shall have no obligation
to, accept any such offers in the manner set forth in this Section 2.22. Bid Absolute Rate
Loans shall be evidenced by the Bid Notes at the request of such Bank providing such Bid Absolute
Rate Loans. Each Bid Absolute Rate Loan shall be repaid in full by the Company on the last day of
the Bid Interest Period applicable thereto.
(b) Any Bank may offer to make Bid Absolute Rate Loans in excess of its Commitment but
such Loans will not relieve the Bank of its obligation to fund its Pro Rata share of
Syndicated Loans.
26
2.22.2. Bid Quote Request. When the Company wishes to request offers to make Bid
Absolute Rate Loans under Section 2.22, the Company shall transmit to the Administrative
Agent by telex or telecopy a Bid Quote Request so as to be received no later than 10:00 a.m.,
New York City time, at least one Business Day prior to the borrowing date proposed therein,
specifying:
(i) | the proposed borrowing date for the proposed Bid Absolute Rate Loans; |
(ii) | the aggregate principal amount of such Bid Absolute Rate Loans; and |
(iii) | the Bid Interest Period applicable thereto (which must end on or prior to the Termination Date). |
The Company may request offers to make Bid Absolute Rate Loans for more than one Bid
Interest Period. No Bid Quote Request shall be given within five Business Days (or upon
reasonable prior notice to the Banks, such lesser number of days as the Company and the
Administrative Agent may agree) of any other Bid Quote Request. Each Bid Quote Request
shall be in a minimum amount of $5,000,000 or a larger multiple of $1,000,000;
provided that upon giving effect to such Bid Absolute Rate Loans, the then aggregate
outstanding principal amount of all Loans shall not exceed the aggregate amount of the
Commitments then in effect. A Bid Quote Request that does not conform substantially to the
format of Exhibit G hereto shall be rejected, and the Administrative Agent shall promptly
notify the Company of such rejection by telex or telecopy.
2.22.3. Invitation for Bid Quotes. Promptly upon receipt of a Bid Quote Request that
is not rejected pursuant to Section 2.22.2, the Administrative Agent shall send to each of
the Banks by telex or telecopy, an Invitation for Bid Quotes which shall constitute an invitation
by the Company to each Bank to submit Bid Quotes offering to make the Bid Absolute Rate Loans to
which such Bid Quote Request relates in accordance with Section 2.22.
2.22.4. Submission and Contents of Bid Quotes.
(i) | Each Bank may, in its sole discretion, submit a Bid Quote containing an offer or offers to make Bid Absolute Rate Loans in response to any Invitation for Bid Quotes. Each Bid Quote must comply with the requirements of this Section 2.22.4 and must be submitted to the Administrative Agent by telex or telecopy at its offices specified in or pursuant to Article 13 not later than 9:45 a.m., New York City time, in the case of JPMCB and 10:00 a.m., New York City time, in the case of each other Bank, on the proposed Borrowing Date (or, in any such case upon reasonable prior notice to the Banks, such later time as the Company and the Administrative Agent may agree, provided that JPMCB shall always be required to submit its Bid Quotes not less than fifteen minutes prior to the other Banks). No Bank may |
27
submit a Bid Quote for a Bid Absolute Rate Loan which has a Bid Interest Period later than such Bank’s Termination Date. Subject to Articles 7 and 9, any Bid Quote so made shall be irrevocable except with the written consent of the Administrative Agent given on the instructions of the Company. |
(ii) | Each Bid Quote shall in any case specify: |
(a) | the proposed borrowing date, which shall be the same as that set forth in the applicable Invitation for Bid Quotes; |
(b) | the principal amount of the Bid Absolute Rate Loan for which each such offer is being made, (1) which principal amount may be greater than, less than or equal to the Commitment of the quoting Bank, but in no case greater than the Commitments, (2) which principal amount must be at least $5,000,000 and an integral multiple of $1,000,000 in excess thereof, and (3) which principal amount may not exceed the principal amount of Bid Absolute Rate Loans for which offers were requested; |
(c) | the minimum or maximum amount, if any, of the Bid Absolute Rate Loan which may be accepted by the Company and/or the limit, if any, as to the aggregate principal amount of the Bid Absolute Rate Loans from such Bank which may be accepted by the Company; |
(d) | the Bid Absolute Rate offered for each such Bid Absolute Rate Loan; |
(e) | the applicable Bid Interest Period; and |
(f) | the identity of the quoting Bank. |
(iii) | The Administrative Agent shall reject any Bid Quote that: |
(a) | is not substantially in the form of Exhibit F hereto or does not specify all of the information required by Section 2.22.4(ii); |
(b) | contains qualifying, conditional or similar language, other than any such language contained in Exhibit F hereto; |
(c) | proposes terms other than or in addition to those set forth in the applicable Invitation for Bid Quotes; or |
(d) | arrives after the time set forth in Section 2.22.4(i). |
28
If any Bid Quote shall be rejected pursuant to this Section 2.22.4(iii), then the
Administrative Agent shall notify the relevant Bank of such rejection as soon as
practicable.
2.22.5. Notice to the Company. The Administrative Agent shall promptly notify the
Company of the terms (i) of any Bid Quote submitted by a Bank that is in accordance with
Section 2.22.4 and (ii) of any Bid Quote that is in accordance with Section 2.22.4
and amends, modifies or is otherwise inconsistent with a previous Bid Quote submitted by such Bank
with respect to the same Bid Quote Request. Any such subsequent Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Bid Quote specifically states that it is submitted
solely to correct a manifest error in such former Bid Quote. The Administrative Agent’s notice to
the Company shall specify the aggregate principal amount of Bid Absolute Rate Loans for which
offers have been received for each Bid Interest Period specified in the related Bid Quote Request
and the respective principal amounts and Bid Absolute Rates so offered.
2.22.6. Acceptance and Notice by the Company. Subject to the receipt of the notice
from the Administrative Agent referred to in Section 2.22.5, not later than 11:00 a.m. (New
York City time) on the proposed date of borrowing (or, in any such case upon reasonable prior
notice to the Banks, such later time as the Company and the Administrative Agent may agree), the
Company shall notify the Administrative Agent of the Company’s acceptance or rejection of the
offers so notified to it pursuant to Section 2.22.5; provided, however,
that the failure by the Company to give such notice to the Administrative Agent shall be deemed to
be a rejection of all such offers. In the case of acceptance, such notice (a “Competitive Bid
Borrowing Notice”) shall specify the aggregate principal amount of offers for each Bid Interest
Period that are accepted. The Company may accept or reject any Bid Quote in whole or in part
(subject to the terms of Section 2.22.4(ii)(c)); provided that:
(a) | the aggregate principal amount of all Bid Absolute Rate Loans may not exceed the applicable amount set forth in the related Bid Quote Request; |
(b) | acceptance of offers may only be made on the basis of ascending Bid Absolute Rates; and |
(c) | the Company may not accept any offer of the type described in Section 2.22.4(iii) or that otherwise fails to comply with the requirements of this Agreement for the purpose of obtaining a Bid Absolute Rate Loan under this Agreement. |
2.22.7. Allocation by the Administrative Agent. If offers are made by two or more
Banks with the same Bid Absolute Rates for a greater aggregate principal amount than the amount in
respect of which offers are permitted to be accepted for the related Bid Interest Period, the
principal amount of Bid Absolute Rate Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as possible (in such multiples,
not greater than $1,000,000, as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers; provided, however, that no Bank shall be
allocated a portion of any Bid Absolute Rate Loan which is less than the minimum
29
amount which such
Bank has indicated that it is willing to accept. Allocations by the Administrative Agent of the
amounts of Bid Absolute Rate Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event by noon (New York City time), notify each
Bank of its receipt of a Competitive Bid Borrowing Notice
and the aggregate principal amount of such Bid Absolute Rate Loan allocated to each
participating Bank.
2.23. Increase of Commitments.
(a) In addition to increases in the Commitment pursuant to Section 2.4, the
Company may from time to time, on the terms set forth below, request that the Commitments
hereunder be increased to an amount which does not exceed $2,000,000,000; provided,
however, that an increase in the Commitments hereunder may only be made at a time
when (i) no Event of Default shall have occurred and be continuing or would result therefrom
and (ii) the Company’s senior long-term indebtedness (without giving effect to any
third-party credit enhancement) is rated at least BBB- by S&P, Baa3 by Xxxxx’x or BBB- by
Fitch.
(b) In the event of such a requested increase in the Commitments, (i) each of the Banks
shall be given the opportunity to participate in the increased Commitments (x) initially
ratably in the proportion that its Commitment bears to the Commitments and (y) to the extent
that the requested increase of Commitments is not fulfilled pursuant to the preceding clause
(x) and subject to clause (d) below, in such additional amounts as a Bank desires, (ii) if
an executive officer of the Company knows that a Potential Default then exists or would
result upon giving effect to such increase in the Commitments, then the Company shall
provide written notice thereof to the Administrative Agent and such Bank prior to such Bank
agreeing to (or declining) such requested increase in the Commitments, and (iii) to the
extent that the Banks do not elect so to participate in such increased Commitments after
being afforded an opportunity to do so, then the Company shall consult with the
Administrative Agent as to the number, identity and requested Commitments of additional
financial institutions which the Company may, upon the written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, conditioned or delayed, invite to
participate in the Commitments.
(c) No Bank shall have any obligation to increase its Commitment pursuant to a request
by the Company hereunder. No Bank shall be deemed to have approved an increase in its
Commitment unless such approval is in writing. Failure on the part of a Bank to respond to
a request by the Company hereunder shall be deemed a rejection of such request.
(d) In no event shall any Bank’s Commitment, as a direct result of an increase in its
Commitment hereunder pursuant to this Section 2.23, exceed 20% of the Commitments
under this Agreement.
(e) If the Company and one or more of the Banks (or other financial institutions) agree
upon such an increase in the Commitments hereunder (i) the Company, the Administrative Agent
and each Bank or other financial institution increasing its
30
Commitment or extending a new
Commitment shall enter into a consent in substantially the form of Exhibit K hereto and (ii)
the Company shall furnish new Notes to each financial institution that is extending a new
Commitment and to each Bank which is
increasing its Commitment to the extent requested by any such financial institution or
Bank.
2.24. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Bank becomes a Defaulting Lender, then the following provisions shall apply for so
long as such Bank is a Defaulting Lender:
(a) | Fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Sections 2.4.1 and 2.5; |
(b) | The Commitment and Loans of such Defaulting Lender shall not be included in determining whether the Required Banks have taken or make take any action hereunder, including any consent to any amendment, waiver or other modification pursuant to Section 8.2; provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby; and |
(c) | If any LC Exposure exists at the time a Bank becomes a Defaulting Lender then: |
(i) all or any part of the LC Exposure of such Defaulting Lender shall be
reallocated among the non-Defaulting Lenders in accordance with their respective Pro
Rata shares but only to the extent (A) the sum of all non-Defaulting Lenders’
Revolving Exposures plus such Defaulting Lender’s LC Exposure does not exceed the
total of all non-Defaulting Lenders’ Commitments, (B) such reallocation does not
cause any non-Defaulting Lender’s Pro Rata share of the outstanding Syndicated Loans
under Section 2.1.1 and outstanding LC Exposures to exceed such Bank’s
Commitment and (C) no Event of Default or Potential Default has occurred and is
continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Company shall within three Business Days following
notice by the Administrative Agent (A) cash collateralize, for the benefit of the
Issuing Banks, the Company’s obligations corresponding to such Defaulting Lender’s
LC Exposure (after giving effect to any partial reallocation pursuant to clause (i)
above and less the face amount of letters of credit provided pursuant to clause (B)
below) in accordance with the procedures set forth in Section 2.25(j) for so long as
such LC Exposure is outstanding, and/or (B) cause the issuance of one or more
back-to-back letters of credit in favor of the Administrative Agent on behalf of the
Issuing Banks, which back-to-back letter(s) of credit shall be available to be drawn
to cover such LC Exposure, shall be in form and substance and in an aggregate face
amount reasonably acceptable to the Administrative Agent and the Issuing Banks (it
being agreed that an aggregate face amount equal
31
to 103% of the Company’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above and less the amount
of any cash collateral provided pursuant to clause (A)
above) shall be acceptable to the Administrative Agent and the Issuing Banks),
and shall be issued by a bank (or banks) reasonably acceptable to the Administrative
Agent and the Issuing Banks;
(iii) if the Company cash collateralizes or causes the issuance of back-to-back
letter(s) of credit in respect of any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Company shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 2.4.1(b) with respect to such
Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC
Exposure is cash collateralized or supported by back-to-back letter(s) of credit;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to clause (i) above, then the fees payable to the Banks pursuant to Sections
2.4.1(a) and 2.4.1(b) shall be adjusted in accordance with such non-Defaulting
Lenders’ Pro Rata shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is not
reallocated, cash collateralized or supported by back-to-back letter(s) of credit
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or
remedies of any Issuing Bank or any Bank hereunder, all letter of credit fees
payable under Section 2.4.1(b) with respect to such Defaulting Lender’s LC Exposure
shall be payable to the applicable Issuing Bank until such LC Exposure is
reallocated and/or cash collateralized or supported by back-to back letter(s) of
credit.
(d) | so long as such Bank is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit unless the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral or back-to-back letter(s) of credit will be provided by the Company in accordance with this Section 2.24(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). |
If each of the Administrative Agent, the Company and the Issuing Banks agrees that a
Defaulting Lender has adequately remedied all matters that caused such Bank to be a Defaulting
Lender, then the LC Exposure of the Banks shall be readjusted to reflect the inclusion of such
Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other
Banks (other than Bid Absolute Rate Loans) as the Administrative Agent shall determine may be
necessary in order for such Bank to hold such Loans in accordance with its Pro Rata share.
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2.25. Letters of Credit. (a) General. Subject to the terms and conditions set
forth herein, the Company may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time
and from time to time from the date hereof to the Termination Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Company to, or entered
into by the Company with, the applicable Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Company shall deliver by hand or facsimile (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (prior to 11:00 a.m., New York City time,
at least one Business Day prior to the requested date of issuance, amendment, renewal or extension
(or such later time as is acceptable to the Administrative Agent and applicable Issuing Bank (if
any)) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit
to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing
Bank, the Company also shall submit a letter of credit application on such Issuing Bank’s standard
form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Company shall be deemed to represent and warrant that), immediately after
giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $100,000,000 and (ii) the Aggregate Revolving Exposures shall not exceed the amount of the
then applicable Commitments of all of the Banks.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Banks, such Issuing Bank hereby grants to each Bank, and each Bank
hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such
Bank’s Pro Rata share of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Bank hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, such Bank’s Pro Rata share of each LC Disbursement made by such Issuing Bank and not
reimbursed by the Company on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Company for any reason. Each
33
Bank
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Potential Default or Event of Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than noon, New York City time, on the
Business Day immediately following the day that the Company receives notice of such LC
Disbursement; provided that if such LC Disbursement is not reimbursed by noon New York City
time on such date, and, so long as the conditions to borrowing in Section 9.2 are satisfied
as of the time at which such LC Disbursement is to be paid, the Company shall be automatically
deemed to have requested an Alternate Base Rate Borrowing in an amount equivalent to such LC
Disbursement, and the Lenders shall extend Alternate Base Rate Loans on such date to pay such
outstanding LC Disbursement. At such time, the Company’s obligation to make such payment in
respect of the LC Disbursement shall be discharged and replaced by the resulting Alternate Base
Rate Borrowing. If the Company fails to make such payment when due and no Alternate Base Rate
Borrowing may be completed as described above, the Administrative Agent shall notify each Bank of
the applicable LC Disbursement, the payment then due from the Company in respect thereof and such
Bank’s Pro Rata share thereof. Promptly following receipt of such notice, each Bank shall pay to
the Administrative Agent its Pro Rata share of the payment then due from the Company, in the same
manner as provided in Section 2.2.2 with respect to Loans made by such Bank (and
Section 2.2.2 shall apply, mutatis mutandis, to the payment obligations of
the Banks), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Banks. Promptly following receipt by the Administrative Agent
of any payment from the Company pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that Banks have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Banks and such
Issuing Bank as their interests may appear. Any payment made by a Bank pursuant to this paragraph
to reimburse an Issuing Bank for any LC Disbursement (other than the funding of Alternate Base Rate
Syndicated Loans as contemplated above) shall not constitute a Loan and shall not relieve the
Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein or herein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
34
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Company’s obligations hereunder. Neither the Administrative Agent, the Banks nor the
applicable Issuing Bank, nor any of their Affiliates (nor any directors, officers, employees,
agents and advisors of such Affiliates), shall have any liability or responsibility to the Company
or any affiliate thereof by reason of or in connection with the issuance or transfer of any Letter
of Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; provided that the foregoing shall not be construed to excuse such
Issuing Bank from liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Company to the extent
permitted by applicable law) suffered by the Company that are caused by such Issuing Bank’s (x)
failure to exercise care when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof or (y) gross negligence or willful misconduct. The
parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on
the part of an Issuing Bank (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The applicable Issuing Bank shall promptly notify the Administrative Agent and the Company
by telephone (confirmed by facsimile) of such demand for payment and whether such Issuing Bank has
made or will make an LC Disbursement thereunder; provided that any failure to give or delay
in giving such notice shall not relieve the Company of its obligation to reimburse such Issuing
Bank and the Banks with respect to any such LC Disbursement in accordance with the terms hereof.
(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement, at
the rate per annum then applicable to Alternate Base Rate Loans. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on
and after the date of payment by any Bank pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Bank to the extent of such payment.
35
(i) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent shall notify the Banks of any such
replacement of an Issuing Bank. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.4.1(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references
herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Company receives notice from the Required Banks (or, if the maturity
of the Loans has been accelerated, Banks with LC Exposure representing greater than 50% of the
aggregate LC Exposure), or the Administrative Agent on behalf of such Banks, demanding the deposit
of cash collateral pursuant to this paragraph, the Company shall deposit in an account with the
Administrative Agent (the “LC Collateral Account”), an amount in cash equal to 103% of the
LC Exposure as of such date plus accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Company described in Sections
7.1.7, 7.1.8, 7.1.9, 7.1.10, or 7.1.11. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
Obligations. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over the LC Collateral Account and the Company shall grant the
Administrative Agent a security interest in the LC Collateral Account. Other than any interest
earned on the investment of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Company’s risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall accumulate in the LC
Collateral Account. Moneys in the LC Collateral Account shall be applied by the Administrative
Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Banks with LC Exposure representing
greater than 50% of the aggregate LC Exposure), be applied to satisfy other Obligations. If the
Company is required to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to
the Company within three Business Days after all such Events of Default have been cured or waived.
3. PREPAYMENT.
3.1. Generally. Upon receipt by the Administrative Agent of a Prepayment Notice not
less than the Minimum Notice Period prior to the Effective Date thereof, the
36
Company may from time
to time pay, without penalty, all, or, in a minimum aggregate amount of $25,000,000, any part of
the principal of, the Loans prior to their stated maturities by paying, in
addition to the principal amount of such payment, all interest accrued on the payment to the
date thereof. Except as provided in Section 2.11 and Section 7.2, Fixed Rate Loans
may be paid only on the last day of the applicable Interest Period.
4. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Banks, the Issuing Banks and the Administrative
Agent that:
4.1. Corporate Existence and Standing. Each of the Company and the Material
Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite authority to conduct its business
in each jurisdiction in which the failure to obtain the necessary authority could reasonably be
expected to materially adversely affect the consolidated condition or operations of the Company or
the ability of the Company to perform the Obligations.
4.2. Authorization and Validity. The execution, delivery and performance by the
Company of the Loan Documents have been duly authorized by proper corporate proceedings and the
Loan Documents, when executed and delivered, will constitute valid, legal, binding and enforceable
obligations of the Company.
4.3. Compliance with Laws and Contracts. Neither the execution and delivery by the
Company of the Loan Documents, the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Company or any Material Subsidiary or articles
or certificates of incorporation or by-laws or the provisions of any indenture, instrument or
agreement in a principal amount of at least $35,000,000, or where aggregate payments due thereunder
or amounts received thereunder equal at least $35,000,000, to which the Company or any Material
Subsidiary is a party, or result in the creation or imposition of any Lien pursuant to the terms of
any such indenture, instrument or agreement, and, immediately after giving effect to the execution
and delivery of this Agreement and each of the Loan Documents, there will not exist any default (or
event which, with notice or lapse of time, would be a default) under any such indenture, instrument
or agreement as a result of such execution and delivery.
4.4. Financial Statements.
4.4.1. Audited. The May 29, 2011 consolidated financial statements of the Company
heretofore delivered to each Bank were prepared in accordance with Generally Accepted Accounting
Principles in effect on the date such statements were prepared and fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries at such date and
the consolidated results of their operations for the period then ended.
4.4.2. No Material Adverse Change. No material adverse change in the consolidated
financial position or results of operations of the Company and its Subsidiaries as
37
shown on said
May 29, 2011 financial statements has occurred from the date thereof to and including the date of
this Agreement.
4.5. Taxes. The Company and the Material Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any assessment received by the Company or any
Material Subsidiary, except (a) such taxes, if any, as are being contested in good faith and as to
which reserves have been provided in accordance with Generally Accepted Accounting Principles, or
(b) to the extent that the failure to do so could not reasonably be expected to materially
adversely affect the consolidated condition or operations of the Company or the ability of the
Company to perform the Obligations.
4.6. Litigation. As of the date of this Agreement, there is no litigation or
proceeding pending or, to the knowledge of any of their executive officers, threatened, against the
Company or any Material Subsidiary which could reasonably be expected to materially adversely
affect the consolidated financial position or results of operations of the Company and its
Subsidiaries or the ability of the Company to perform the Obligations.
4.7. Employee Retirement Income Security Act of 1974. As of the date hereof, neither
the Company nor any Material Subsidiary has failed to satisfy the minimum funding standard within
the meaning of Section 302 of the Employee Retirement Income Security Act of 1974, as amended, or
has incurred any material liability (which has become due but which has not been paid) to the
Pension Benefit Guaranty Corporation established under such Act (or any successor thereto under
such Act) in connection with any employee benefit plan established or maintained by the Company or
any Material Subsidiary.
4.8. Defaults. No Event of Default or Potential Default has occurred and is
continuing.
4.9. Accuracy of Information. As of the date of this Agreement, no written
information, exhibit or report furnished by the Company or any Material Subsidiary to the
Administrative Agent or to the Banks in connection with the negotiation of the Loan Documents,
taken as a whole, contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading in light of the
circumstances in which made.
4.10. Regulation U. Neither the Company nor any Subsidiary is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying “margin stock” (as defined in Regulation U of the Board). The Company shall
not use the proceeds of any Loan in a manner that would result in any violation of the provisions
of Regulation U.
4.11. Legal Authority. No approval, authorization, consent, adjudication or order of
any governmental authority, which has not been obtained by the Company is required to be obtained
by the Company in connection with the execution and delivery of the Loan Documents, the borrowing
under the Agreement or in connection with the performance by the Company of its obligations under
the Loan Documents.
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4.12. Investment Company Status. The Company is not an “investment company” as defined in,
or subject to regulation as such under, the Investment Company Act of 1940.
5. AFFIRMATIVE COVENANTS.
5.1. Financial Statements, Reports, Returns and Other Financial Data. The Company
covenants that, so long as any Issuing Bank or any Bank shall have any Commitment, Letters of
Credit or Loan outstanding, or any unreimbursed LC Disbursements, the Company will deliver to the
Administrative Agent (who will make such documents available to each Bank) the following:
5.1.1. Quarterly Financial Statements. Within 60 days after the end of each of the
first three quarterly accounting periods of the Company’s fiscal year, (i) quarterly consolidated
statements of earnings and cash flow of the Company and its Subsidiaries, and (ii) quarterly
consolidated balance sheets of the Company and its Subsidiaries, setting forth in each case in
comparative form consolidated figures for the corresponding period in the preceding fiscal year,
all in accordance with Generally Accepted Accounting Principles (except that footnote disclosures
required by Generally Accepted Accounting Principles may be omitted and that the statement of
stockholders’ equity will be omitted and subject to audit and changes resulting from year-end
adjustment) all in the form submitted by the Company to its shareholders.
5.1.2. Annual Financial Statements. Within 90 days after the end of the Company’s
fiscal year (i) annual consolidated statements of earnings, stockholders’ equity and cash flow of
the Company and its Subsidiaries for such year, and (ii) annual consolidated balance sheets of the
Company and its Subsidiaries, setting forth in each case in comparative form corresponding
consolidated figures from the preceding annual audit, all in accordance with Generally Accepted
Accounting Principles and certified by independent certified public accountants of recognized
national standing selected by the Company and all in a form submitted by the Company to its
shareholders.
5.1.3. Stockholder and Governmental Reports. Promptly upon transmission thereof,
copies of all such financial statements, proxy statements, notices and reports as it shall send to
its stockholders and of all registration statements (without exhibits) and all reports which it
files with the Securities and Exchange Commission or any governmental body or agency succeeding to
the functions of the Securities and Exchange Commission.
Notwithstanding the foregoing or anything to the contrary set forth herein, the Company shall
be deemed to have delivered the items described in Sections 5.1.1, 5.1.2
and 5.1.3 to the Administrative Agent and the Banks if the applicable item has been filed
with the Securities and Exchange Commission or other applicable governmental authority and is
freely and readily available without charge to the Administrative Agent and the Banks on the
website of the Securities and Exchange Commission or such other applicable governmental authority,
or such item has been made freely and readily available without charge to the Administrative Agent
and the Banks on the Company’s website xxx.xxxxxxxxxxxx.xxx, and the delivery date therefor shall
be deemed to be the first day on which the applicable item is available to the
39
Administrative Agent and the Banks on one of such web pages; provided,
further, that the Company will promptly notify the Administrative Agent (who shall use
reasonable efforts to notify the Banks) of each posting to such sites upon the occurrence thereof.
5.2. Officer’s Certificate. Together with each delivery of financial statements
required by Section 5.1.1 and 5.1.2 above, the Company will deliver to the
Administrative Agent for distribution to each of the Banks an Officer’s Certificate setting forth
the calculations necessary to determine compliance with Sections 6.1 and 6.3 of
this Agreement and stating that there exists no Event of Default or Potential Default or, if any
such Event of Default or Potential Default exists, specifying the nature thereof, the period of
existence thereof and what action the Company has taken or proposes to take with respect thereto.
The Company also covenants that forthwith upon any Authorized Officer obtaining knowledge of an
Event of Default or Potential Default under this Agreement, it will deliver to any Bank that has
any Loan or any Commitment outstanding an Officer’s Certificate specifying the nature thereof, the
period of existence thereof, and what action the Company has taken or proposes to take with respect
thereto. Where the financial statements required by Section 5.1.1 or 5.1.2 above
are necessary to determine whether all covenants herein have been complied with, or whether an
Event of Default has occurred, the most recent financial statements referred to in Section
5.1.1 and 5.1.2 above, shall be used to make such determination.
5.3. Sale and Lease-Back. If a “Sale and Lease-Back Transaction” (as defined in
Section 3.7 of the Indenture) occurs that (i) results in net proceeds to the Company or a
Subsidiary in excess of $50,000,000, and (ii) requires the retirement by the Company of debt
pursuant to Section 3.7(c) of the Indenture, then the Company shall, within 90 days
following the effective date of such Sale and Lease-Back Transaction, offer to the Banks to use the
net proceeds of such Sale and Lease-Back Transaction to prepay, without premium, an amount of the
principal amount of the Loans of the Banks (on a Pro Rata basis). Such amount shall be based on a
fraction, the numerator of which would be the principal amount of Loans then outstanding and the
denominator of which would be the principal amount outstanding of all funded debt for which the
Company is required by the terms thereof to make similar offers. Such offer would be terminated if
not accepted in writing within 5 Business Days following the date of such offer. For purposes of
this Section, the applicable provisions of the Indenture shall be deemed incorporated herein
mutatis mutandis without the effect of any amendment, waiver or termination of the Indenture.
6. NEGATIVE COVENANTS.
The Company covenants, so long as any Bank or any Issuing Bank shall have any Commitment,
Letters of Credit or Loan outstanding, or any unreimbursed LC Disbursements, as follows:
6.1. Funded Debt. The Company will not permit Consolidated Funded Debt to exceed 65%
of Consolidated Capital Base.
6.2. Consolidation, Merger, Sale or Conveyance. The Company will not merge or
consolidate with any other corporation or sell or convey (including by way of lease) all or
substantially all of its assets to any Person, unless (i) either the Company shall be the
40
continuing corporation or the successor corporation, or the continuing or successor
corporation, or the Person which acquires by sale or conveyance substantially all the assets of the
Company (if other than the Company) shall be a corporation or entity organized under the laws of
the United States of America or any State thereof and shall expressly assume the due and punctual
payment of the principal of and interest on the Loans and the due and punctual performance and
observance of all of the covenants and conditions of this Agreement to be performed or observed by
the Company, by written instrument executed and delivered to the Banks by such corporation or
entity, and (ii) immediately after such merger or consolidation, or such sale or conveyance, no
Potential Default or Event of Default shall exist and be continuing. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein. In the event of any such sale or conveyance (other
than a conveyance by way of lease) the Company or any successor corporation which shall theretofore
have become such in the manner described in this Section shall be discharged from all obligations
and covenants under this Agreement and the Notes and may be liquidated and dissolved. If a
successor corporation has been substituted for the Company or another corporation and has assumed
payment of the Loans and performance and observance of the covenants of this Agreement in
accordance with this Section 6.2, the Company or other corporation previously obligated
under the Agreement and the Notes shall be discharged from all obligations and covenants under this
Agreement and the Notes and may be liquidated and dissolved.
6.3. Fixed Charge Coverage. The Company and its Subsidiaries will maintain, on a
consolidated basis, a ratio of (i) Profit Before Taxes and Extraordinary Items plus Fixed
Charges plus amortization of intangible assets minus equity in earnings of
Affiliates to (ii) Fixed Charges greater than 1.75 to 1.0 on a four-quarter rolling basis
calculated at each quarter end.
6.4. Liens. The Company will perform, comply with and observe for the benefit of the
Banks its agreements in Section 3.6 of the Indenture. For purposes hereof, the provisions
of said Section 3.6 of the Indenture, together with related definitions and ancillary
provisions, are hereby incorporated herein by reference, mutatis mutandis, and shall be deemed to
continue in effect for the benefit of the Banks (as if they held Securities under the Indenture) as
in effect on the date hereof, whether or not said provisions otherwise remain in effect or are
modified or terminated; provided that for purposes of this incorporation by reference, each
reference in said Section to “Securities” shall be deemed to include the Notes issued hereunder,
and if the Company is required by said Section 3.6 to equally and ratably secure the
Securities, the Company shall cause the Notes and the Obligations to be secured by Liens equally
and ratably with the Securities (without implying in any way that the Notes are securities for
purposes of state or federal securities laws) and any and all other obligations and indebtedness
secured by such Liens.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1. Events of Default. For purposes of this Agreement, each of the following events
shall be Events of Default:
41
7.1.1. Failure to Pay Principal of Notes. The Company defaults in the payment of any
principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when the
same shall become due, either by the terms thereof or otherwise as herein provided.
7.1.2. Failure to Pay Interest on Notes or Fees. The Company defaults in the payment
of any interest on any Loan or any fees hereunder for more than 10 Business Days after the date
due.
7.1.3. Default Under Other Obligations. The Company or any Subsidiary defaults under
any agreement or indenture pursuant to which the Company or any Subsidiary has borrowed more than
$35,000,000 in principal amount (or has sold notes the aggregate principal amount of which exceeds
$35,000,000) and such default has not been cured within any period of grace provided with respect
thereto, provided, however, the Company may exclude from the operation of this
Section 7.1.3 one or more Subsidiaries so long as the Company’s equity investment in such
excluded Subsidiaries is less than 20% of the Company’s consolidated assets.
7.1.4. Breach of Representation. Any representation or warranty made by the Company
herein or in any writing furnished pursuant to this Agreement shall be false in any material
respect on the date as of which it was made.
7.1.5. Failure to Perform Negative Covenants. The Company defaults in the performance
or observance of any agreement contained in Section 6 and such default shall not have been
remedied within 30 days after an Authorized Officer obtained knowledge of such default.
7.1.6. Failure to Perform Other Terms and Conditions. The Company defaults in the
performance or observance of any other agreement, covenant, term or condition contained herein and
such default shall not have been remedied within 30 days after written notice thereof shall have
been received by the Company from any of the Banks.
7.1.7. Assignment For Benefit of Creditors and Insolvency. The Company or any
Material Subsidiary makes an assignment for the benefit of creditors, or admits in writing its
inability to pay its debts as they become due, or is unable generally to pay its debts or is
adjudicated bankrupt or insolvent.
7.1.8. Order for Relief. Any order for relief, judgment or decree is entered in any
proceeding described in Section 7.1.9 in respect of the Company or any Material Subsidiary.
7.1.9. Voluntary Receiver or Bankruptcy. The Company or any Material Subsidiary
petitions or applies to any tribunal for the appointment of a trustee, receiver or liquidator of
the Company or any Material Subsidiary, or of any substantial part of the assets of the Company or
any Material Subsidiary, or commences any proceedings (other than proceedings for the voluntary
liquidation and dissolution of a Material Subsidiary) relating to the Company or any Material
Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or law of any jurisdiction, whether now or hereafter in effect.
42
7.1.10. Involuntary Receiver or Bankruptcy. Any petition or application described in
Section 7.1.9 is filed, or any proceedings described in Section 7.1.9 are
commenced, against the Company or any Material Subsidiary, and the Company or any Material
Subsidiary by any act indicates its approval thereof, consent thereto, or acquiescence therein, or
an order, judgment or decree is entered appointing any such trustee, receiver or liquidator, or
approving the petition in any such proceedings, and such order, judgment or decree remains in
effect and unstayed for more than 60 consecutive days.
7.1.11. Involuntary Order for Relief. Any order for relief, judgment or decree is
entered in any proceedings against the Company or any Material Subsidiary decreeing the
dissolution, winding-up or liquidation of the Company or any Material Subsidiary and such order,
judgment or decree is unstayed and in effect for more than 60 consecutive days.
7.1.12. Unsatisfied Judgment. A final judgment or judgments for the payment of money
aggregating in excess of $35,000,000 (excluding amounts covered by insurance to the extent the
relevant insurer has not denied coverage thereof) is or are outstanding against the Company or any
Material Subsidiary and any one of such judgments has been outstanding for more than 30 days from
the date of its entry and has not been discharged in full or stayed.
7.2. Rights and Duties After Default.
7.2.1. Acceleration. If any Event of Default occurs and is continuing, then, if the
Required Banks so elect (which election shall be held in a manner determined by the Administrative
Agent and communicated by the Administrative Agent to the Banks), the Banks’ Commitments to make
Loans under this Agreement shall terminate and no further Letters of Credit shall be issued
hereunder, and, upon the election of the Required Banks, the Loans and all interest, fees and other
amounts payable under this Agreement or the Notes shall immediately become due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby expressly waived;
provided, however, that upon the occurrence of an Event of Default under
Section 7.1.7, 7.1.8, 7.1.9, 7.1.10
or 7.1.11, the
Commitments shall automatically terminate and the Loans and all interest, fees and other amounts
payable under the Agreement or the Notes shall become immediately due and payable without
declaration or notice to the Company.
7.2.2. Interest Rate After Acceleration. After any acceleration of any Loan or Loans
pursuant to Section 7.2.1, the Company agrees to pay, without duplication and
notwithstanding anything in any Loan Document to the contrary, interest on such accelerated Loan or
Loans and all unreimbursed LC Exposure at a per annum rate, in each case, equal to the Alternate
Base Rate (calculated with an Applicable Margin at Pricing Level V) plus one percent (1%),
changing when and as the Alternate Base Rate changes.
8. WAIVERS, AMENDMENTS AND REMEDIES.
8.1. Waivers and Remedies. No delay or omission of the Administrative Agent, any
Issuing Bank, the Required Banks, or any Bank to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Event of Default or an acquiescence
therein, and any single or partial exercise of any such right shall not preclude other
43
or further exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Required Banks or, if required under Section 8.2, all of the Banks, and then
only to the extent in such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available to the Banks until the
Obligations have been paid in full.
8.2. Amendments. With the consent in writing of Required Banks, the Administrative
Agent and the Company may, subject to the provisions of this Section 8, from time to time
enter into agreements supplemental hereto for the purpose of adding any provisions to this
Agreement or changing in any manner the rights of the Banks or the Company hereunder or waive any
Event of Default hereunder; provided, however, that no such supplemental agreement
shall (i) extend the Termination Date or the final scheduled maturity of any Loan or reduce the
principal amount of any Loan or LC Disbursement, or reduce any fees or reduce the rate or extend
the scheduled time of payment of interest thereon, without the consent of all Banks (except for
extensions in accordance with Section 2.18 and except that any of the foregoing with
respect to a Bid Note shall only require the consent of the holder of such Note); provided,
that (subject to the foregoing parenthetical) none of the foregoing may be amended or modified with
respect to a Defaulting Lender without the consent of such Defaulting Lender, (ii) change the
standard of “greater than 50%” specified in the definition of Required Banks without the consent of
all Banks other than Defaulting Lenders, (iii) increase the amount or extend the term of the
Commitment of any Bank without the consent of that Bank (including a Defaulting Lender), (iv)
change or amend this Section 8.2 without the consent of all Banks (including a Defaulting
Lender) or (v) amend Section 2.24 without the consent of the Administrative Agent, the
Company and the Required Banks. No agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Banks without the prior written consent of the
Administrative Agent or JPMCB, in its capacity as the Issuing Bank, as the case may be (it being
understood that any change to Section 2.24 shall require the consent of the Administrative
Agent and JPMCB, in its capacity as the Issuing Bank). Notwithstanding anything to the contrary in
this Section, if the Administrative Agent and the Company shall have jointly identified an obvious
error or any error or omission of a technical or immaterial nature, in each case, in any provision
of the Loan Documents, then the Administrative Agent and the Company shall be permitted to amend
such provision and such amendment shall become effective without any further action or consent of
any other party to any Loan Document if the same is not objected to in writing by the Required
Banks within five (5) Business Days following receipt of notice thereof.
9. CONDITIONS PRECEDENT TO CLOSING.
9.1. The closing shall be deemed to be held at the office of the Administrative Agent in
Chicago, Illinois, and on the date of execution of this Agreement, the Company shall deliver to the
Administrative Agent for the benefit of the Issuing Banks and the Banks:
(i) | an executed copy of this Agreement; |
44
(ii) | a certificate signed by any Authorized Officer or Secretary or Assistant Secretary of the Company stating that as of such closing date no Event of Default or Potential Default shall exist and that the representations and warranties contained in Article 4 are true and correct on such closing date; |
(iii) | copies of the Certificate of Incorporation of the Company, together with all amendments, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Company, and a certificate of good standing, certified on or within ten days prior to the date hereof by the Secretary of State of Delaware; |
(iv) | copies, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Company, of its By-Laws and its Board of Directors’ Resolutions, authorizing the execution, delivery and performance of the Loan Documents; |
(v) | an incumbency certificate, executed by any Authorized Officer or the Secretary or Assistant Secretary of the Company, which shall identify by name and title and bear the signature of the officers of the Company authorized to sign the Loan Documents and to sign any other documents, letters of credit, reports and notices in connection with this Agreement and to make borrowings hereunder (on which the Issuing Banks and the Banks shall be entitled to rely until informed of any change in writing by the Company); |
(vi) | a written opinion of the Company’s counsel, Xxxxx Day, addressed to the Administrative Agent, each Issuing Bank and the Banks, in the form of Exhibit D; |
(vii) | Syndicated Notes for those Banks that have requested Syndicated Notes at least two Business Days prior to the date hereof; |
(viii) | satisfactory evidence that those fees invoiced by and due to the Administrative Agent and the Banks on the date the Company executes this Agreement have been paid in full or shall be paid substantially concurrently with closing; and |
(ix) | satisfactory evidence that the Prior Agreement shall have been terminated and cancelled and any and all accrued and unpaid principal, interest, fees and expenses due and payable under the terms of the Prior Agreement or any other agreement, document or instrument executed in connection therewith have been paid in full or shall be paid substantially concurrently with closing. |
9.2. The Banks shall not be required to make Loans and the Issuing Banks shall not be
required to issue, amend, renew or extend Letters of Credit under this Agreement unless on each
Loan Closing Date (i) no Event of Default or Potential Default shall exist and (ii) the
representations and warranties contained in Sections 4.1, 4.2, 4.3,
4.4.1, 4.5, 4.8, 4.9, 4.10 and
45
4.11 shall be true and correct in all material respects as of such Loan Closing Date (except
with respect to those representations and warranties made as of a specific date, which
representations and warranties shall be true and correct in all material respects as of such date).
On each Loan Closing Date with respect to a Bid Absolute Rate Loan, the Company shall deliver to
the Administrative Agent, for the account of the relevant Bank, a duly executed and completed Bid
Note if requested.
9.3. On the date of (i) each extension pursuant to Section 2.18 hereof or (ii) the
date of each increase in Commitments pursuant to Section 2.23 hereof, the Company shall
deliver to the Administrative Agent for the benefit of the Issuing Banks and the Banks a
certificate, signed by an Authorized Officer, stating that as of such date no Event of Default
exists and, in the case of each extension pursuant to Section 2.18, that the
representations and warranties contained in Section 4 are true and correct in all material
respects on such date as if made on such date, except that the financial statements referred to in
Section 4.4 shall be deemed to be the audited consolidated financial statements of the
Company and its Subsidiaries most recently delivered to the Banks, and except with respect to those
representations and warranties made as of a specific date, which representations and warranties
shall be true and correct in all material respects as of such date).
10. GENERAL PROVISIONS.
10.1. Benefit of Agreement. Each Bank will accept its Notes as evidence of Loans made
in the ordinary course of its commercial banking business. The terms and provisions of this
Agreement and the Notes shall be binding upon and inure to the benefit of the Company, the
Administrative Agent, any Issuing Bank and the Banks and their respective successors and assigns
(including any Affiliate of a Issuing Bank that issues any Letter of Credit), except (a) the
Company may not, except as permitted under Section 6.2, assign its rights or obligations
hereunder or under the Notes without the prior consent of all Banks (including Defaulting Lenders)
and (b) a Bank may not assign its rights or obligations hereunder or under the Notes or sell or
grant any interest or participation herein, in the Commitments or any Loan except as follows:
10.1.1. Assignments.
(a) Any Bank may, in the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or other entities
(“Purchasers”) all or any part of its rights and obligations under the Loan
Documents. Such assignment shall be substantially in the form of Exhibit L or in such other
form as may be agreed to by the parties thereto and approved by the Administrative Agent.
The consent of the Company shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Bank, an Affiliate thereof or an Approved Fund;
provided, however, that (i) if an Event of Default has occurred and is
continuing, the consent of the Company shall not be required and (ii) the Company shall be
deemed to have consented to an assignment if it has not objected thereto in writing within
ten days after notice thereof to it as required by Section 13.1 and to ConAgra
Foods, Inc., Xxx XxxXxxx Xxxxx, Xxxxx, XX 00000, attention: General Counsel (facsimile no.
(000) 000-0000). The consent of the Administrative Agent shall be required prior to any
46
assignment becoming effective; provided that no consent of the Administrative
Agent shall be required for an assignment from a Bank to an Affiliate, or an Approved Fund,
of such Bank. The consent of the Issuing Bank, shall be required prior to any assignment
becoming effective; provided that no consent of the Issuing Banks shall be required
for an assignment of all or any portion of a Bid Absolute Rate Loan. Any required consent
shall not be unreasonably withheld, conditioned or delayed. Each such assignment shall be
in an amount not less than the lesser of (i) $5,000,000 unless otherwise agreed by the
Company and the Administrative Agent or (ii) the remaining amount of the assigning Bank’s
Commitment (calculated as at the date of such assignment); provided, that
any assignment by a Bank to an Affiliate of such Bank or an Approved Fund thereof may be
made in any lesser amount; provided, further, that such Bank shall give
prompt notice to the Company following such an assignment to the applicable Affiliate or
Approved Fund.
(b) The Administrative Agent, acting for this purpose as an agent of the Company, shall
maintain at one of its offices a copy of each assignment delivered to it and a register for
the recordation of the names and addresses of each Bank and each Purchaser, and the
Commitment of, or principal amount of, and any interest on, the Loans and LC Disbursements
owing to, each Bank or Purchaser pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, absent manifest
error, and the Company, the Administrative Agent, the Issuing Banks, the Banks and any
Purchasers may treat each Person whose name is recorded on this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Company at
any reasonable time and from time to time upon reasonable prior notice. No assignment shall
be effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this Section 10.1.1(b).
10.1.2. [Intentionally Omitted].
10.1.3. Effect of Assignments. Upon the effectiveness of any assignment pursuant to
Section 10.1.1 hereof, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned, shall have the rights and obligations of a Bank under this Agreement, and
the assigning Bank shall, to the extent of the interest assigned, be released from its obligations
(other than pursuant to Section 2.12) under this Agreement.
10.1.4. Participations.
(a) Any Bank may, without the consent of the Company, any Issuing Bank 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 obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Bank’s obligations under this Agreement shall remain
unchanged, (B) such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Company, the Issuing Banks, 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
47
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Bank will not,
without the consent of the Participant, agree to any amendment, modification or waiver
described in the proviso to Section 8.2 that affects such Participant. Subject to
paragraph (b) of this Section, the Company agrees that each Participant shall be entitled to
the benefits of Sections 2.11, 2.12 and 2.13 to the same extent as
if it were a Bank and had acquired its interest by assignment pursuant to Section
10.1.1. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12 as though it were a Bank.
(b) A Participant shall not be entitled to receive any greater payment under
Section 2.12 or 2.13 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 shall not be entitled to the benefits of Section 2.12 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 2.12 as though it were a Bank (it
being understood that the documentation required under Section 2.12.1 shall be
delivered to the participating Bank).
(c) Each Bank that sells a participation, acting solely for this purpose as an agent of
the Company, shall maintain at one of its offices a register for the recordation of the
names and addresses of each Participant and the principal amounts of, and stated interest
on, each participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”); provided that no Bank shall have any obligation to
disclose all or any portion of the Participant Register to the Company, the Administrative
Agent or any other Person (including the identity of any Participant or any information
relating to a Participant’s interest in the Commitments, Loans, Letters of Credit or other
obligations) except to the extent that disclosure is necessary to establish that such
Commitments, Loans or other obligations are in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be
conclusive, absent manifest error, and such Bank may treat each Person whose name is
recorded in the Participant Register pursuant to the terms hereof as the owner of such
participation for all purposes of this Agreement, notwithstanding notice to the contrary.
10.1.5. General Restrictions. Notwithstanding the foregoing, (i) all assignments
permitted hereunder shall be effected pursuant to forms of assignment agreements as may be approved
by the Administrative Agent in its reasonable discretion; (ii) any such assignment pursuant to this
Section will become effective five Business Days after the Administrative Agent’s receipt of a
written notice of such assignment from the assigning Bank and the assignee Bank and a processing
and recordation fee of $3,500 from the assigning Bank; (iii) no Bank shall effect any assignment or
participation that may require the Company to file a registration statement with the Securities and
Exchange Commission or apply to qualify the Loans or Commitments of that Bank or other Obligations
owed to that Bank under blue sky law of any state; and (iv) no Bank shall, as between Company and
that Bank, be relieved of any of its obligations hereunder as a result of any granting of
participations in all or any part of the Loans or participations therein, or Commitments of that
Bank or other obligations owed to such Bank.
48
10.1.6. Federal Reserve Bank. Notwithstanding anything herein to the contrary, any
Bank may at any time without the consent of the Company or the Administrative Agent and without
restrictions as to amount or otherwise, pledge and assign as collateral all or any portion of its
rights under this Agreement, any Note or any Loan to a Federal Reserve Bank, provided that
no such pledge or assignment shall release the transferor Bank from its obligations hereunder.
10.2. Survival of Representations. All representations and warranties of the Company
contained in this Agreement shall survive delivery of the Notes, the issuance of any Letters of
Credit and the making of the Loans herein contemplated.
10.3. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, neither any Issuing Bank nor any Bank shall be obligated to extend credit to the
Company in an amount in violation of any limitation or prohibition provided by any applicable
statute or regulation.
10.4. Taxes. Any stamp, court, documentary, intangible, recording, filing or similar
excise or property taxes payable or ruled payable by Federal, State, local or foreign authority
that arise from any payment made under, from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, the Loan Documents shall be paid by the Company,
together with interest and penalties, if any.
10.5. Choice of Law; Jurisdiction. The Loan Documents shall be construed in
accordance with and governed by the laws of the State of New York. Each party hereto irrevocably
and unconditionally submits to the exclusive jurisdiction of any U.S. Federal or New York state
court sitting in New York County, New York in any action or proceeding arising out of or relating
to any Loan Documents, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final non-appealable judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
10.6. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
10.7. Entire Agreement. The Loan Documents embody the entire agreement and
understanding between the Company and the Banks and supersede all prior agreements and
understandings between the Company and the Banks relating to the subject matter hereof.
10.8. Several Obligations. The respective obligations of the Banks hereunder are
several and not joint, and no Bank shall be the partner or agent of any other (except to the extent
to which the Administrative Agent is authorized to act as such). The failure of any Bank to
perform any of its obligations hereunder shall not relieve any other Bank from any of its
obligations hereunder.
49
10.9. Expenses. The Company shall reimburse the Administrative Agent, the
Issuing Banks and the Banks for any and all reasonable invoiced costs and out-of-pocket expenses
paid or incurred by the Administrative Agent, the Issuing Banks or the Banks in connection with the
collection and enforcement (including reasonable and invoiced attorneys fees for the counsel for
the Administrative Agent and one additional counsel for all the Issuing Banks and Banks other than
the Administrative Agent in light of actual or potential conflicts of interest or the availability
of different claims or defenses for the Administrative Agent, any Issuing Bank or any Bank) of the
Loan Documents. The obligations of the Company under this Section 10.9 shall survive the
termination of this Agreement.
10.10. [Intentionally Omitted].
10.11. 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.
10.12. Accounting. Except as provided to the contrary herein, all accounting terms
used herein shall be interpreted and all accounting determinations and calculations hereunder shall
be made on a consolidated basis for the Company and its Subsidiaries in accordance with Generally
Accepted Accounting Principles.
10.13. Confidentiality. Each Credit Party agrees to hold any information which it may
receive from the Company or its representatives pursuant to this Agreement in confidence, except
for disclosure as required (i) to its Affiliates and to other Banks and their respective Affiliates
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such information and instructed to keep such information confidential), (ii)
to legal counsel, accountants, and other professional advisors to such Credit Party (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information confidential), (iii) to
regulatory officials having jurisdiction over such Person to the extent requested thereby, (iv) to
any Person as required by law, regulation, or legal process, (v) to any Person in connection with
any legal proceeding to which such Bank is a party, (vi) to such Bank’s or such Issuing Bank’s
direct or indirect contractual counterparties in swap agreements relating to the Company or its
obligations or to legal counsel, accountants and other professional advisors to such
counterparties; provided that each counterparty agrees to be bound (with the Company an
express third party beneficiary) by the confidentiality provisions of this Section 10.13,
(vii) to rating agencies if requested or required by such agencies in connection with a rating
relating to the transactions evidenced hereby, (viii) to any Person with the consent of the
Company, (ix) to any credit insurance provider relating to the Company and its Obligations under
this Agreement, provided that such credit insurance provider agrees to be bound (with the
Company an express third party beneficiary) by the confidentiality provisions of this
Section 10.13, (x) to self regulatory officials having authority over such Person to the
extent requested thereby, and (xi) to the extent such information becomes publicly available other
than as a result of a breach of this Section 10.13. The Company authorizes each Bank to
disclose to any assignee or participant described in Section 10.1 or any other Person
acquiring an interest in the Loan Documents by operation of law (each a “Transferee”) and
any prospective Transferee
50
any and all information in such Bank’s possession concerning the
creditworthiness of the Company and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound (with the Company an express third party beneficiary) by
the confidentiality provisions of this Section 10.13.
10.14. USA PATRIOT Act. Each Bank that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby notifies the Company that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Company, which information includes the name and
address of the Company and other information that will allow such Bank to identify the Company in
accordance with the Act.
10.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
11. THE AGENTS.
11.1. Appointment and Powers. JPMCB is hereby appointed Administrative Agent
hereunder, and each Issuing Bank and each Bank irrevocably authorizes the Administrative Agent to
act as the administrative agent of such Bank and such Issuing Bank. BofA is hereby appointed
Syndication Agent. JPMorgan and MLPFS are hereby appointed the Arrangers. The Administrative
Agent agrees to act as such upon the express conditions set forth in this Section 11.
Except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to the Company or any
of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity.
11.2. Powers. The Administrative Agent shall have and may exercise such powers
hereunder as are specifically delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. Neither the Administrative
Agent nor the Syndication Agent shall have any implied duties to the Banks or the Issuing
Banks, or any obligation to the Banks or the Issuing Banks to take any action hereunder except any
action specifically provided by this Agreement to be taken by the Administrative Agent.
11.3. General Immunity. None of the Administrative Agent, the Syndication Agent, the
Arrangers, nor any of their respective directors, officers, agents or employees shall be
51
liable to
any Issuing Bank, the Banks or any Bank or any Issuing Bank for any action taken or omitted to be
taken by it or them hereunder or in connection herewith except for its or their own gross
negligence or willful misconduct.
11.4. No Responsibility for Loans, Recitals, Etc. None of the Administrative Agent,
the Syndication Agent, or the Arrangers shall be responsible to the Issuing Banks or the Banks for
any recitals, reports, statements, warranties or representations herein or any Loans hereunder or
be bound to ascertain or inquire as to the performance or observance of any of the terms of this
Agreement.
11.5. Right to Indemnity. The Administrative Agent shall have no liability to the
Banks for failing or refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Banks Pro Rata in accordance with the Commitments against any and all
liability and expense which may be incurred by it by reason of taking or continuing to take any
such action except in connection with its gross negligence or willful misconduct.
11.6. Action on Instructions of Banks. The Administrative Agent shall have no
liability to the Banks or the Issuing Banks for acting, or in refraining from acting, hereunder in
accordance with written instructions signed by the Required Banks (other than in connection with
amendments requiring consent of all Banks or an affected Bank under Section 8.2), and such
instructions and any action taken or failure to act pursuant thereto shall be binding on all of the
Banks, all of the Issuing Banks and on all holders of Notes.
11.7. Employment of Agents and Counsel. The Administrative Agent may execute any of
its duties as Administrative Agent hereunder by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Banks (except as to money or securities received by it or its
authorized agents) for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties hereunder.
11.8. Reliance on Documents; Counsel. The Administrative Agent shall, absent gross
negligence or willful misconduct, be entitled to rely in good faith upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Administrative Agent.
11.9. May Treat Payee as Owner. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a written notice of the
assignment of transfer thereof shall have been filed with the Administrative Agent. Any request,
authority or consent of any person, firm or corporation who at the time of making
such request or giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
11.10. Administrative Agent’s Reimbursement. Each Bank agrees to reimburse the
Administrative Agent in the amount of such Bank’s Pro Rata share of the Commitments for
52
any
expenses not reimbursed by the Company for which the Administrative Agent is entitled to
reimbursement by the Company under the Loan Documents and for any other expenses incurred by the
Administrative Agent on behalf of the Banks in connection with the enforcement of the Loan
Documents if such other expenses are not reimbursed by the Company.
11.11. Rights as a Bank. With respect to its Commitment, Loans made by it and Notes
issued to it, each of the Administrative Agent and the Syndication Agent shall have the same rights
and powers hereunder as any Bank and may exercise the same as though it were not the Administrative
Agent or the Syndication Agent, as the case may be, and the term “Bank” or “Banks” shall, unless
the context otherwise indicates, include each such party in its individual capacity. The
Administrative Agent and the Syndication Agent may accept deposits from, lend money to, and
generally engage in any kind of banking or trust business with the Company as if it were not the
Administrative Agent or Syndication Agent.
11.12. Bank Credit Decision. Each Issuing Bank and each Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent, the Syndication Agent, or
the Arrangers or any other Bank and based on the financial statements referred to in Section
4.4 and such other documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Issuing Bank and each Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent, the
Syndication Agent, or the Arrangers or any other Bank and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
11.13. Resignation of Administrative Agent. Subject to the appointment and acceptance
of a successor Administrative Agent as provided below, the Administrative Agent may resign at any
time by giving notice thereof to the Banks, the Issuing Banks and the Company. Upon any such
resignation, the Company shall have the right to appoint a successor Administrative Agent
reasonably satisfactory to the Required Banks. If no such successor Administrative Agent shall
have been so appointed by the Company and shall have accepted such appointment within 30 days after
the retiring Administrative Agent’s giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks and the Issuing Banks, appoint a successor
Administrative Agent reasonably satisfactory to the Company, which shall be a bank which has an
office in the United States of America with a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent. If at any time any Bank serving as the Administrative Agent becomes a
Defaulting Lender, or an Affiliate of a Defaulting Lender is serving as the Administrative Agent,
and such Defaulting Lender fails to cure all defaults that caused it to become a Defaulting Lender,
and cease being a Defaulting Lender or an Affiliate of a Defaulting Lender, within ten Business
Days from the date it become a Defaulting Lender, then the Required Banks may, but shall not be
required to, direct the Administrative Agent to resign as such, and upon the direction
53
of the
Required Banks, the Administrative Agent shall be required to so resign, in accordance with this
Section 11.13.
11.14. Syndication Agent, Documentation Agents and Co-Documentation Agent. None of
the Banks identified in this Agreement as Syndication Agent, as Documentation Agents or as
Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Banks as such. Without limiting the
foregoing, none of such Banks shall have or be deemed to have a fiduciary relationship with any
Bank. Each Bank hereby makes the same acknowledgements with respect to the applicable Banks in
their capacity as Syndication Agent, Documentation Agent and Co-Documentation Agent as it makes
with respect to the Administrative Agent in this Agreement.
12. SETOFF.
If the Company becomes insolvent, however evidenced, or any Event of Default occurs, the
Company agrees to recognize, honor and comply with each Bank’s right of setoff under any applicable
law and each Bank with a Loan agrees that any assets available to such Bank for setoff shall be
shared with all the Banks with an outstanding Loan so that each such Bank receives for offset a
share of such assets equal to the proportion that such Bank’s Loans bear to the sum of all the then
outstanding Loans.
13. NOTICES.
13.1. Giving Notice. Any notice (except Borrowing Notices and Rate Selection Notices)
required or permitted to be given under this Agreement may be, and shall be deemed, given when
delivered, or three Business Days after being deposited in the United States mail, postage prepaid,
or one Business Day after transmission, by overnight delivery service, telegraph, telecopy or
telex, in each case to the appropriate office for transmission, charges, prepaid, addressed to the
addresses indicated in each Bank’s administrative questionnaire, other than for each of the
Company, each Issuing Bank and the Administrative Agent, whose notice information appears on its
signature page to this Agreement. The Company and the Banks may each change the address for
service of notice upon it by a notice in writing to the others.
14. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall be effective when it has been executed by the
Administrative Agent and the Company on one counterpart and each Bank shall
have signed a counterpart and notified the Administrative Agent by telex, telecopy, telephone
or electronic transmission (to the extent in compliance with Section 13.1) that it has
taken such action.
The remainder of this page is intentionally blank.
54
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
CONAGRA FOODS, INC., as the Company |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Senior Vice President, Treasurer and
Assistant Corporate Secretary |
|||
Address: | ||||
Xxx XxxXxxx Xxxxx | ||||
Xxxxx, Xxxxxxxx 00000 | ||||
Attention: | Xxxxx X. Xxxxxx | |||
Telephone No.: | (000) 000-0000 | |||
Facsimile No.: | (000) 000-0000 | |||
E-mail Address: | xxxxx.xxxxxx@xxxxxxxxxxxx.xxx |
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
JPMORGAN CHASE BANK, N.A., as Administrative Agent, an Issuing Bank and as a Bank |
||||
By: | /s/ Xxxx Xxxx | |||
Name: | Xxxx Xxxx | |||
Title: | Executive Director | |||
Address: | ||||
000 Xxxxxxx Xxxxxx | ||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||
Attention: | Xxxx Xxxx | |||
Telephone No.: | (000) 000-0000 | |||
Facsimile No.: | (000) 000-0000 | |||
E-mail Address: | xxxx.xxxx@xxxxxxxx.xxx |
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
BANK OF AMERICA, N.A. |
||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Managing Director | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
BNP PARIBAS |
||||
By: | /s/ Fik Durmus | |||
Name: | Fik Durmus | |||
Title: | Director | |||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Managing Director | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
||||
By: | /s/ Xxxxxx Xxxxxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
THE ROYAL BANK OF SCOTLAND PLC |
||||
By | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | Director | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
XXXXX FARGO BANK, N.A. |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Executive Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
DEUTSCHE BANK AG NEW YORK BRANCH |
||||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Director | |||
By: | /s/ Xxxx X. Xxx | |||
Name: | Xxxx X. Xxx | |||
Title: | Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
MIZUHO CORPORATE BANK (USA) |
||||
By: | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
U.S. BANK NATIONAL ASSOCIATION |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
BARCLAYS BANK PLC |
||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Assistant Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
XXXXXX XXXXXXX BANK, N.A. |
||||
By: | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
STATE STREET BANK AND TRUST COMPANY |
||||
By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Vice President | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
THE BANK OF NOVA SCOTIA |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Director | |||
Signature Page to Revolving Credit Agreement
ConAgra Foods, Inc.
ConAgra Foods, Inc.
CONAGRA FOODS, INC.
REVOLVING CREDIT AGREEMENT
SCHEDULE 1
BANK | COMMITMENT | |||
JPMORGAN CHASE BANK, N.A. |
$ | 200,000,000 | ||
BANK OF AMERICA, N.A. |
$ | 200,000,000 | ||
BNP PARIBAS |
$ | 150,000,000 | ||
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
$ | 150,000,000 | ||
THE ROYAL BANK OF SCOTLAND PLC |
$ | 150,000,000 | ||
XXXXX FARGO BANK, N.A. |
$ | 150,000,000 | ||
DEUTSCHE BANK AG NEW YORK BRANCH |
$ | 100,000,000 | ||
MIZUHO CORPORATE BANK (USA) |
$ | 100,000,000 | ||
U.S. BANK NATIONAL ASSOCIATION |
$ | 100,000,000 | ||
BARCLAYS BANK PLC |
$ | 50,000,000 | ||
XXXXXX XXXXXXX BANK, N.A. |
$ | 50,000,000 | ||
STATE STREET BANK AND TRUST COMPANY |
$ | 50,000,000 | ||
THE BANK OF NOVA SCOTIA |
$ | 50,000,000 | ||
TOTAL COMMITMENTS |
$ | 1,500,000,000 |
Sch. 1-1
EXHIBIT A
Syndicated Note
$[____________________] | September 14, 2011 |
ConAgra Foods, Inc., a Delaware corporation (“Company”), promises to pay to the order
of [NAME OF BANK] (“Bank”) on or before the Bank’s Termination Date (as defined in the
Agreement hereinafter referred to) for the account of its Applicable Lending Installation the
principal sum of [__________________] and 00/100 Dollars ($[__________________]) or the aggregate
unpaid principal amount of all Syndicated Loans made by the Bank to the Company pursuant to
Section 2.1 of the Agreement, whichever is less, in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the Agreement.
The Bank shall, and is hereby authorized to, record on the Schedule of Loans, Payments of
Principal and Extension attached hereto, or to otherwise record in accordance with customary
practice, the date and amount of each Syndicated Loan, the date and amount of each principal
payment and the date to which payment of this Note has been extended, provided, however, that
failure to do so shall not affect the Company’s obligation to pay amounts due hereunder.
The Company expressly waives any presentment, demand, protest or notice in connection with
this Note now, or hereafter, required by applicable law.
This Syndicated Note is one of the Syndicated Notes issued pursuant to the provisions of the
Revolving Credit Agreement, dated as of September 14, 2011, among the Company, JPMorgan Chase Bank,
N.A., individually and as Administrative Agent, Bank of America, N.A., individually and as
Syndication Agent, X.X. Xxxxxx Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated, as Arrangers, and the Banks named therein, to which Agreement, as it may be amended
from time to time, reference is hereby made for a statement of the terms and conditions under which
this Syndicated Note may be prepaid or its maturity date extended or accelerated.
This Syndicated Note shall be construed in accordance with and governed by the laws of the
State of New York.
CONAGRA FOODS, INC. |
||||
By: | ||||
Name: | ||||
Title: |
A-1
SCHEDULE OF LOANS, PAYMENTS OF PRINCIPAL AND EXTENSION
Amount of | ||||||||||||||||||||||||
Principal | Unpaid | Extension of | ||||||||||||||||||||||
Amount | Interest | Paid or | Principal | Termination | Notation | |||||||||||||||||||
Date | of Loan | Period/Rate | Prepaid | Balance | Date | Made By | ||||||||||||||||||
A-2
EXHIBIT B
Sample Confirmation Letter
Date: __________________
(Administrative Agent’s name and address)
Attention:__________________________
Re:
|
Revolving Credit Agreement dated as of September 14, 2011 with ConAgra Foods, Inc. (the “Agreement”). |
Ladies and Gentlemen:
Please accept this letter as confirmation of the conversation _________________ had with your
office today whereby we requested a Syndicated Loan from you under the Agreement on the following
terms:
Principal Amount:
Rate Option:
Interest Rate Quoted:
Maturity (if Eurodollar Loan):
Effective Date of Loan:
We understand that the proceeds of such Syndicated Loan were [deposited in our demand deposit
account no. ________] [transferred to the following account(s)]:
Bank
|
Account Number | |
Very truly yours, ConAgra Foods, Inc. |
||||
By: | ||||
[Authorized Officer] | ||||
B-1
EXHIBIT C
Certificate Pursuant to Section 2.12 of the
ConAgra Foods, Inc.
Revolving Credit Agreement
dated as of September 14, 2011
ConAgra Foods, Inc.
Revolving Credit Agreement
dated as of September 14, 2011
To: ConAgra Foods, Inc.
Ladies and Gentlemen:
In connection with the above-referenced facility, we hereby certify that the undersigned is a
corporation (within the meaning of Section 7701(a) (3) of the United States Internal Revenue Code
of 1986) created or organized in or under the laws of the United States or a state thereof, and
having its principal office located at __________, U.S.A.
By: | ||||
Title: |
X-0
XXXXXXX X
Xxxxxxx xx Xxxxxxx
Xxxxxxxx
X-0
EXHIBIT E
Bid Note
$[____________] | ___________ __, 20__ |
ConAgra Foods, Inc., a Delaware corporation (“Company”), promises to pay to the order
of [NAME OF BANK] (“Bank”) on _____________ (which may not be later than the then effective
Termination Date) for the account of its Applicable Lending Installation the principal sum of
[_______________] and 00/100 Dollars ($[______________]) in immediately available funds at the main
office of the Bank in [___________________________], together with interest on the unpaid principal
amount hereof at the rate of [____] percent per annum.
The Company expressly waives any presentment, demand, protest or notice in connection with
this Note now, or hereafter, required by applicable law.
This Bid Note is a Bid Note issued pursuant to the provisions of the Revolving Credit
Agreement, dated as of September 14, 2011, among the Company, JPMorgan Chase Bank, N.A.,
individually and as Administrative Agent, Bank of America, N.A., individually and as Syndication
Agent, and X.X. Xxxxxx Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, as
Arrangers and the Banks named therein, to which Agreement, as it may be amended from time to time,
reference is hereby made for a statement of the terms and conditions under which this Bid Note may
be prepaid or its maturity date extended or accelerated.
CONAGRA FOODS, INC. |
||||
By: | ||||
Name: | ||||
Title: |
E-1
EXHIBIT F
Bid Quote
To:
|
JPMorgan Chase Bank, N.A., as Administrative Agent | |
Attn: ______ | ||
Re:
|
Bid Quote to ConAgra Foods, Inc. (the “Company”) |
In response to your Invitation For Bid Quotes on behalf of the Company dated ___, 20__, the
undersigned Bank hereby makes the following Bid Quote on the following terms:
1. | Name of Quoting Bank: | ||
2. | Person to contact at Quoting Bank: | ||
3. | Borrowing Date: _______, 20__1 | ||
4. | The undersigned Bank hereby offers to make Bid Absolute Rate Loan(s) in the following principal amounts, for the following Bid Interest Periods and rates: |
Bid | Bid | Maximum | ||||||||||
Principal | Interest | Absolute | Minimum | |||||||||
Amount2 | Period3 | Rate4 | (§2.22.4(ii)(c)) | |||||||||
$ |
The undersigned Bank understands and agrees that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Revolving Credit Agreement, dated as of
September 14, 2011, with the Company (the “Agreement”), irrevocably obligates the
undersigned Bank to make the Bid Absolute Rate Loan(s) for which any offer(s) are accepted, in
whole or in part, in accordance with Section 2.22 of the Agreement. Terms used herein and
not otherwise defined herein shall have the meanings set forth for such terms in the Agreement.
1 | As specified in the relevant Invitation for Bid Quotes. | |
2 | Principal amount bid for each Bid Interest Period may not exceed principal amount requested in the relevant Invitation for Bid Quotes and is subject to further requirements as described in the Agreement, including without limitation, Section 2.22.4(ii)(b). | |
3 | As specified in the relevant Invitation for Bid Quotes. | |
4 | Specify rate of interest per annum (rounded to the nearest 1/100th of 1%). |
F-1
Very truly yours, [Name of Bank] |
||||
By: | ||||
[Authorized Officer] | ||||
Dated: ______________, 20__
F-2
EXHIBIT G
Bid Quote Request
__________, 20___
To:
|
JPMorgan Chase Bank, N.A., | |
as Administrative Agent | ||
From:
|
ConAgra Foods, Inc. | |
Re:
|
Revolving Credit Agreement (the “Agreement”), dated as of September 14, 2011, with ConAgra Foods, Inc. |
ConAgra Foods, Inc., pursuant to Section 2.22.2 of the Agreement, hereby requests Bid
Quotes for the following proposed Bid Absolute Rate Loans:
1. | Borrowing Date: _______, 200_ | |
2. | Principal Amount Bid Interest Period | |
$ |
Terms used herein have the meanings assigned to them in the Agreement.
ConAgra Foods, Inc. |
||||
By: | ||||
Its: | ||||
G-1
EXHIBIT H
Invitation For Bid Quotes
To:
|
[Name of Bank] | |
From:
|
JPMorgan Chase Bank, N.A., | |
as Administrative Agent | ||
Re:
|
Revolving Credit Agreement (the “Agreement”), dated as of September 14, 2011, with ConAgra Foods, Inc. (the “Company”) |
Pursuant to Section 2.22 of the Agreement, the Administrative Agent is pleased on behalf of
the Company to invite you to submit Bid Quotes to the Company for the following proposed Bid
Absolute Rate Loan(s):
1. | Borrowing Date: _______, 20 | |
2. | Principal Amount Bid Interest Period | |
$ |
Please respond to this invitation by no later than [10:00 a.m. New York City time] on _________,
20. Capitalized terms used herein and not otherwise defined herein shall have the meanings set
forth for such terms in the Agreement.
JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
By: | ||||
Its: | ||||
H-1
EXHIBIT I
Request for Extension
(Administrative Agent’s name and address) | ______________, 20_____ |
Attention:__________________________
Dear ________________:
Pursuant to Section 2.18 of the Revolving Credit Agreement dated as of September 14,
2011 with ConAgra Foods, Inc., (“Agreement”), we request a one year extension of the
Termination Date (as defined in the Agreement) as such date pertains to each Bank’s Commitment (as
each term is defined in the Agreement). If this extension is accepted by the Required Banks (as
defined in the Agreement), the new Termination Date will be ___________. We acknowledge that such
extension will not otherwise constitute an alteration, amendment or waiver of any other term,
condition or covenant contained in the Agreement.
Each Bank is also entitled to retroactively accept any previous extension requests by ConAgra,
Foods, Inc. that were rejected by such Bank.
We hereby authorize and request you to deliver a copy of this Request for Extension to each
Bank.
To accept our requested extension, or to retroactively accept any previous extension requests,
the Banks must give written notice to you, in the form attached as Exhibit J to the Agreement,
within __ days following your receipt of this request. Failure by the Banks to give the required
notice within such __ day time period will constitute a denial of our request.
Very truly yours, CONAGRA FOODS, INC. |
||||
By: | ||||
[Authorized Officer] | ||||
I-1
EXHIBIT J
Acceptance of Request For Extension
(Administrative Agent’s name and address) | __________________, 20____ |
Attention:__________________________
Re:
|
Revolving Credit Agreement dated as of September 14, 2011 with ConAgra Foods, Inc. (“ConAgra”) |
Dear ________________:
We have received from you a copy of ConAgra’s Request for Extension, dated___________ 20___,
and pursuant to Section 2.18 of the Agreement, we hereby accept the extension as set forth
in ConAgra’s request. [In addition, we retroactively accept ConAgra’s previous Request for
Extension dated ________________ 20_.] As a result of such extension the new Termination Date will
be ___________.
We hereby authorize and request you to deliver a copy of this Acceptance of Request for
Extension to ConAgra.
We have made a notation of this extension on the Schedule of Loans, Payments of Principal and
Extension attached to our Syndicated Note(s).
Very truly yours, [The Bank] |
||||
By: | ||||
[Name and Title] | ||||
J-1
EXHIBIT K
Consent to Additional or Increasing Bank
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Treasurer
Ladies and Gentlemen:
We desire to [participate as a “Bank”] [increase our Commitment as a Bank] in that certain
Revolving Credit Agreement dated as of September 14, 2011, (the “Agreement”). To
effectuate such participation, we agree as follows:
1. Definitions. All capitalized terms used in this letter shall have the meanings set
forth in the Agreement, except as otherwise defined herein.
[2. Effective Date. Subject to the conditions contained in this letter, by execution
and delivery to the Company of this letter, _________________ (“New Bank”) shall,
effective______________ 20___, (“Effective Date”), become a Bank pursuant to the Agreement.
New Bank acknowledges and agrees that it shall have all rights, duties and obligations of a Bank
as set forth in the Agreement as if New Bank was a signatory to the Agreement as of the Effective
Date.
3. Commitment and Notices. New Bank’s Commitment shall be $___________ and New Bank’s
address for purposes of its administrative questionnaire delivered in connection with the Credit
Agreement shall be as follows:
Fax Number:_________________________
Contact Person:________________________
Telephone Number:___________________]
[2. Increased Commitment. Subject to the conditions contained in this letter, by
execution and delivery to the Company of this letter, __________ (“Increase Bank”) shall,
effective __________ have a Commitment of $__________ under the Agreement.]
4[3]. Enforcement. [New Bank/Increase Bank] acknowledges that it has executed and
delivered this letter for the benefit of the Company, the Banks, and the Administrative Agent and
that the terms and provisions hereof shall inure to the benefit of each such Person.
K-1
If you are in agreement with the foregoing, please sign the acceptance set forth below.
Yours very truly, [NEW BANK] |
||||
By: | ||||
Name: | ||||
Title: | ||||
cc:
|
JPMorgan Chase Bank, N.A. as Administrative Agent, [ADDRESS] | |
Attn: [__________] | ||
Bank of America, N.A., as Syndication Agent, [ADDRESS] | ||
Attn: [__________] |
AGREED AND ACCEPTED this ____ day of _______________________, 20___________
CONAGRA FOODS, INC.
By: | ||||
Name: | ||||
Title: |
K-2
EXHIBIT L
Form of Assignment Agreement
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the Assignor under
the respective facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Bank) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
1.
|
Assignor: | |||||
2.
|
Assignee: | |||||
[and is an Affiliate/Approved Fund of [identify Bank]]1 | ||||||
3. | Company: | ConAgra Foods, Inc. | ||||
4. | Administrative Agent: | JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
1 | Select as/if applicable. |
L-1
5.
|
Credit Agreement: | The $1,500,000,000 Revolving Credit Agreement dated as of September 14, 2011 among ConAgra Foods, Inc., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto | ||
6.
|
Assigned Interest: |
Aggregate Amount of | Amount of | Percentage Assigned | ||||||||||
Commitment/Loans | Commitment/ | of | ||||||||||
for all Banks | Loans Assigned | Commitment/Loans2 | ||||||||||
$ | $ | % | ||||||||||
$ | $ | % | ||||||||||
$ | $ | % |
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR [NAME OF ASSIGNOR] |
||||
By: | ||||
Name: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] |
||||
By: | ||||
Name: | ||||
Title: | ||||
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks thereunder. |
L-2
Consented to and Accepted:
JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Consented to: JPMORGAN CHASE BANK, N.A., as an Issuing Bank |
||||
By | ||||
Name: | ||||
Title: | ||||
Consented to:
[______________], as an Issuing Bank
By | ||||
Name: | ||||
Title: | ]3 | |||
[Consented to:]4
CONAGRA FOODS, INC.
By: | ||||
Name: | ||||
Title: | ||||
3 | To be added only if the consent of the Issuing Banks is required by the terms of the Credit Agreement. | |
4 | To be added only if the consent of the Company is required by the terms of the Credit Agreement. |
L-3
Annex 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) 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 Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Bank under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 4.4
thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Bank, and (v) if it is
a Non-U.S. Bank, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the
Annex 1-1
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the laws of the State of New York.
Annex 1-2