EXHIBIT 10.1
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
X.X. XXXXXXXX TOBACCO HOLDINGS, INC. (f/k/a RJR Nabisco, Inc.),
JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank),
AS ADMINISTRATIVE AGENT,
CITIBANK, N.A.,
AS SYNDICATION AGENT,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA AND
XXXXXX COMMERCIAL PAPER INC.,
AS DOCUMENTATION AGENTS,
CREDIT LYONNAIS NEW YORK BRANCH AND MIZUHO CORPORATE BANK, LTD.,
AS CO-DOCUMENTATION AGENTS,
X.X. XXXXXX SECURITIES INC.
AND
XXXXXXX XXXXX XXXXXX INC.,
EACH AS A LEAD ARRANGER
AND
BOOK MANAGER,
AND
VARIOUS LENDING INSTITUTIONS
Dated as of May 10, 2002
$622,000,000
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TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit................................................... 1
1.01 Commitments............................................................... 1
1.02 Minimum Amount of Each Borrowing; Maximum Number of Borrowings............ 3
1.03 Notice of Borrowing of Committed Loans.................................... 3
1.04 Competitive Bid Borrowings................................................ 4
1.05 Disbursement of Funds..................................................... 6
1.06 Notes; Register........................................................... 7
1.07 Conversions............................................................... 7
1.08 Pro Rata Borrowings....................................................... 8
1.09 Interest.................................................................. 8
1.10 Interest Periods.......................................................... 9
1.11 Increased Costs, Illegality, etc.......................................... 10
1.12 Compensation.............................................................. 12
1.13 Change of Lending Office.................................................. 12
1.14 Maturity Date Extensions.................................................. 13
1.15 Replacement of Lenders.................................................... 13
1.16 Notice of Certain Costs................................................... 14
SECTION 2. Letters of Credit............................................................ 14
2.01 Letters of Credit......................................................... 14
2.02 Letter of Credit Requests................................................. 16
2.03 Letter of Credit Participations........................................... 16
2.04 Agreement to Repay Letter of Credit Drawings.............................. 18
2.05 Increased Costs........................................................... 19
2.06 Indemnification; Nature of Letter of Credit Issuers' Duties............... 20
SECTION 3. Fees; Commitments............................................................ 21
3.01 Fees...................................................................... 21
3.02 Voluntary Reduction of Commitments........................................ 22
3.03 Mandatory Reduction of Commitments, etc................................... 22
SECTION 4. Payments..................................................................... 23
4.01 Voluntary Prepayments..................................................... 23
4.02 Mandatory Prepayments..................................................... 24
4.03 Method and Place of Payment............................................... 25
4.04 Net Payments.............................................................. 26
SECTION 5. Conditions Precedent......................................................... 27
5.01 Conditions Precedent to the Second Restatement Effective Date............. 27
5.02 Conditions Precedent to All Credit Events................................. 29
SECTION 6. Representations, Warranties and Agreements................................... 29
6.01 Status.................................................................... 29
Page
6.02 Power and Authority....................................................... 29
6.03 No Violation.............................................................. 30
6.04 Litigation................................................................ 30
6.05 Use of Proceeds; Margin Regulations....................................... 30
6.06 Governmental Approvals.................................................... 30
6.07 Investment Company Act.................................................... 31
6.08 True and Complete Disclosure.............................................. 31
6.09 Financial Condition; Financial Statements................................. 31
6.10 Tax Returns and Payments.................................................. 31
6.11 Compliance with ERISA..................................................... 32
6.12 Subsidiaries.............................................................. 32
6.13 Patents, etc.............................................................. 32
6.14 Pollution and Other Regulations........................................... 32
6.15 Properties................................................................ 32
SECTION 7. Affirmative Covenants........................................................ 32
7.01 Information Covenants..................................................... 33
7.02 Books, Records and Inspections............................................ 34
7.03 Insurance................................................................. 34
7.04 Payment of Taxes.......................................................... 34
7.05 Consolidated Corporate Franchises......................................... 35
7.06 Compliance with Statutes, etc............................................. 35
7.07 ERISA..................................................................... 35
7.08 Good Repair............................................................... 36
7.09 End of Fiscal Years; Fiscal Quarters...................................... 36
7.10 Competitive Bid Loan Outstandings......................................... 36
7.11 Subsidiary Guaranty; Collateral........................................... 36
SECTION 8. Negative Covenants........................................................... 37
8.01 Changes in Business....................................................... 37
8.02 Consolidation, Merger, Sale of Assets, etc................................ 37
8.03 Liens..................................................................... 39
8.04 Indebtedness.............................................................. 41
8.05 Limitation on Dividends................................................... 42
8.06 Transactions with Affiliates.............................................. 44
8.07 Consolidated Net Worth.................................................... 44
8.08 Fixed Charge Coverage Ratio............................................... 44
8.09 Investments............................................................... 44
8.10 No Negative Pledge........................................................ 45
8.11 Prepayments of Indebtedness............................................... 45
SECTION 9. Events of Default............................................................ 45
9.01 Payments.................................................................. 46
9.02 Representations, etc...................................................... 46
9.03 Covenants................................................................. 46
9.04 Default Under Other Agreements............................................ 46
9.05 Bankruptcy, etc........................................................... 46
Page
9.06 ERISA..................................................................... 47
9.07 Subsidiary Guaranty....................................................... 47
9.08 Judgments................................................................. 47
9.09 Security Documents........................................................ 48
9.10 Special Defaults.......................................................... 48
SECTION 10. Definitions................................................................. 49
SECTION 11. The Senior Managing Agents.................................................. 72
11.01 Appointment.............................................................. 72
11.02 Delegation of Duties..................................................... 73
11.03 Exculpatory Provisions................................................... 73
11.04 Reliance by Senior Managing Agents....................................... 73
11.05 Notice of Default........................................................ 74
11.06 Non-Reliance on Senior Managing Agents and Other Lenders................. 74
11.07 Indemnification.......................................................... 74
11.08 Senior Managing Agents in Their Individual Capacities.................... 75
11.09 Successor Senior Managing Agents, etc.................................... 75
SECTION 12. Miscellaneous............................................................... 75
12.01 Payment of Expenses, etc................................................. 75
12.02 Right of Setoff.......................................................... 76
12.03 Notices.................................................................. 76
12.04 Benefit of Agreement..................................................... 76
12.05 No Waiver; Remedies Cumulative........................................... 79
12.06 Payments Pro Rata........................................................ 80
12.07 Calculations; Computations............................................... 80
12.08 Governing Law; Submission to Jurisdiction; Venue......................... 81
12.09 Counterparts............................................................. 82
12.10 Execution................................................................ 82
12.11 Headings Descriptive..................................................... 82
12.12 Amendment or Waiver...................................................... 82
12.13 Survival................................................................. 83
12.14 Domicile of Loans........................................................ 83
12.15 Confidentiality.......................................................... 83
12.16 Waiver of Jury Trial..................................................... 83
12.17 Special Provisions Regarding Certain Amendments.......................... 83
ANNEX I -- List of Lenders and Commitments
ANNEX II -- Lender Addresses
ANNEX III -- Existing Letters of Credit
ANNEX IV -- Certain Litigation
ANNEX V -- Schedule of Material Subsidiaries
ANNEX VI -- Existing Liens
ANNEX VII -- Existing Debt
EXHIBIT A -- Form of Note
EXHIBIT B -- Form of Letter of Credit Request
EXHIBIT C-1 -- Form of Opinion of Executive Vice President, General Counsel and Assistant Secretary of the Borrower
EXHIBIT C-2 -- Form of Opinion of White & Case LLP
EXHIBIT D -- Form of Second Amended and Restated Subsidiary Guaranty
EXHIBIT E-1 -- Form of Notice of Assignment
EXHIBIT E-2 -- Form of Assignment Agreement
EXHIBIT F -- Form of Confidentiality Agreement
EXHIBIT G -- Form of Second Amended and Restated Intercompany
Subordination Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May
10, 2002, among X.X. XXXXXXXX TOBACCO HOLDINGS, INC. (f/k/a/ RJR Nabisco, Inc.),
a Delaware corporation (the "Borrower"), and the lending institutions listed
from time to time on Annex I hereto (each, a "Lender" and, collectively, the
"Lenders"). Unless otherwise defined herein, all capitalized terms used herein
and defined in Section 10 are used herein as so defined.
W I T N E S S E T H:
WHEREAS, the Borrower and certain financial institutions are
party to a Credit Agreement, dated as of May 7, 1999 and amended and restated as
of November 17, 2000 (as so amended and restated and as the same has been
further amended, modified, supplemented to, but not including, the Second
Amendment and Restatement Effective Date, the "First Amended and Restated Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the
First Amended and Restated Credit Agreement in its entirety as herein provided;
NOW, THEREFORE, the parties hereto agree that the First
Amended and Restated Credit Agreement shall be and is hereby amended and
restated in its entirety as follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (A) Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees to make a loan or
loans (each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Borrower, which Revolving Loans:
(i) shall be made at any time and from time to time on
and after the Original Effective Date and prior to such Lender's Final
Maturity Date;
(ii) may, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Reference Rate Loans or
Eurodollar Loans, provided that all Revolving Loans made by all Lenders
pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Revolving Loans of the same Type;
(iii) may be repaid and reborrowed in accordance with the
provisions hereof; and
(iv) shall not exceed for any Lender at any time
outstanding that aggregate principal amount which, when added to (A)
the product of (x) such Lender's Adjusted Percentage and (y) the sum of
(I) the aggregate Letter of Credit Outstandings plus (II) the aggregate
outstanding principal amount of all Swingline Loans then outstanding
plus (B) the product of (x) such Lender's Percentage and (y) the
aggregate outstanding principal amount of all Competitive Bid Loans
then outstanding, equals the Commitment of such Lender at such time.
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(B) Subject to and upon the terms and conditions herein set
forth, each Swingline Lender severally agrees, at any time and from time to time
on and after the Original Effective Date and prior to such Swingline Lender's
Swingline Maturity Date, to make a loan or loans (each, a "Swingline Loan" and,
collectively, the "Swingline Loans") to the Borrower, which Swingline Loans:
(i) shall be Reference Rate Loans;
(ii) shall have the benefit of the provisions of Section
1.01(C);
(iii) shall not exceed in the aggregate at any one time
outstanding the Swingline Commitment of such Swingline Lender at such
time;
(iv) shall not exceed in the aggregate for all Swingline
Lenders at any one time outstanding, when combined with the aggregate
principal amount of all Revolving Loans and Competitive Bid Loans then
outstanding and all Letter of Credit Outstandings at such time, the
Total Commitment then in effect; and
(v) may be repaid and reborrowed in accordance with the
provisions hereof.
On (x) the Swingline Maturity Date of each Swingline Lender, all Swingline Loans
of such Swingline Lender shall be repaid in full and (y) the last Business Day
of each calendar quarter, all Swingline Loans shall be repaid in full and may
not be reborrowed until the next succeeding Business Day, provided that
repayment of the Swingline Loans pursuant to this clause (y) shall not be
required to the extent that the aggregate outstanding principal amount of
Swingline Loans to be repaid is less than $10,000,000. No Swingline Lender will
make a Swingline Loan after it has received written notice from the Required
Lenders that one or more of the applicable conditions to Credit Events specified
in Section 5 are not then satisfied.
(C) On any Business Day, a Swingline Lender (the
"Notifying SL Lender") may, in its sole discretion, give notice to the Lenders
that all then outstanding Swingline Loans shall be funded with a Borrowing of
Revolving Loans (provided that such notice shall be deemed to have been
automatically given by each Swingline Lender and each Swingline Lender shall
constitute a Notifying SL Lender upon the occurrence of an Event of Default
under Section 9.05), in which case a Borrowing of Revolving Loans constituting
Reference Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be
made on the immediately succeeding Business Day by all Lenders pro rata based on
each Lender's Adjusted Percentage (with each such Borrowing by a Lender (other
than a Non-Extending Lender) prior to its First Maturity Date to be applied as a
utilization of the Short-Term Commitment and Long-Term Commitment of such Lender
on a pro rata basis (based upon the relative amounts of the Short-Term
Commitment and the Long-Term Commitment of such Lender, in each case as in
effect immediately prior to giving effect to such Borrowing)), and the proceeds
thereof shall be applied directly to repay ratably all Swingline Lenders for
their outstanding Swingline Loans. Each Lender hereby irrevocably agrees to make
Reference Rate Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Notifying SL Lender, notwithstanding
(i) that the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount
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otherwise required hereunder, (ii) whether any conditions specified in Section 5
are then satisfied, (iii) whether a Default or an Event of Default has occurred
and is continuing, (iv) the date of such Mandatory Borrowing and (v) any
reduction in the Total Commitment after any such Swingline Loans were made. In
the event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code in respect of the
Borrower), each Lender (other than each Swingline Lender with respect to its
Swingline Loans) hereby agrees that it shall forthwith purchase from each
Swingline Lender (without recourse or warranty) such assignment of its
outstanding Swingline Loans as shall be necessary to cause the Lenders to share
in such Swingline Loans ratably based upon their respective Adjusted
Percentages; provided that all interest payable on such Swingline Loans shall be
for the account of the Swingline Lenders until the date the respective
assignment is purchased and, to the extent attributable to the purchased
assignment, shall be payable to the Lender purchasing same from and after such
date of purchase.
(D) Subject to and upon the terms and conditions herein
set forth, each Lender severally agrees that the Borrower may incur a loan or
loans (each, a "Competitive Bid Loan" and, collectively, the "Competitive Bid
Loans") pursuant to a Competitive Bid Borrowing from time to time on and after
the Original Effective Date and prior to the date which is the third Business
Day preceding the date which is 14 days prior to the Facility Maturity Date;
provided that, after giving effect to any Competitive Bid Borrowing and the use
of the proceeds thereof, (x) the aggregate outstanding principal amount of
Competitive Bid Loans when combined with the aggregate outstanding principal
amount of all Revolving Loans and Swingline Loans then outstanding and the
aggregate Letter of Credit Outstandings at such time shall not exceed the Total
Commitment at such time or (y) if the Interest Period applicable to such
Competitive Bid Borrowing extends beyond the then First Maturity Date of any
Lender, the aggregate outstanding principal amount of all Competitive Bid Loans
and Revolving Loans with Interest Periods that extend beyond such First Maturity
Date when combined with the Stated Amount of all outstanding Letters of Credit
with expiration dates that extend beyond such First Maturity Date will not
exceed the Expected Total Commitment in effect for each day of the Interest
Period applicable to such Competitive Bid Loan that occurs beyond such First
Maturity Date. Within the foregoing limits and subject to the conditions set out
in Section 1.04, Competitive Bid Loans may be repaid and reborrowed in
accordance with the provisions hereof.
1.02 Minimum Amount of Each Borrowing; Maximum Number of
Borrowings. The aggregate principal amount of each Borrowing of Committed Loans
shall not be less than the Minimum Borrowing Amount with respect thereto (except
that Mandatory Borrowings shall be made in the amounts required by Section
1.01(C)). More than one Borrowing may be incurred on any date; provided, that at
no time shall there be outstanding more than twenty Borrowings of Eurodollar
Loans under this Agreement.
1.03 Notice of Borrowing of Committed Loans. (a) Whenever
the Borrower desires to incur Revolving Loans hereunder (other than Mandatory
Borrowings), it shall give the Administrative Agent at the Administrative
Agent's Office (x) prior to 11:00 A.M. (New York time) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Revolving Loans constituting Eurodollar Loans and (y) prior
to 11:00 A.M. (New York time) at least one Business Day's prior written notice
(or telephonic
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notice promptly confirmed in writing) of each Borrowing of Revolving Loans
constituting Reference Rate Loans. Each such notice (each, together with each
notice of a Borrowing of Swingline Loans pursuant to Section 1.03(b), a "Notice
of Borrowing") shall be irrevocable and shall specify (i) the aggregate
principal amount of the Revolving Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of Reference Rate Loans or Eurodollar Loans
and, if Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each Lender written notice
(or telephonic notice promptly confirmed in writing) of each proposed Borrowing
of Revolving Loans, of such Lender's proportionate share thereof and of the
other matters covered by the Notice of Borrowing.
(b) Whenever the Borrower desires to incur Swingline
Loans hereunder, it shall give the Administrative Agent at the Administrative
Agent's Office written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Swingline Loans prior to 11:00 A.M. (New York
time) on the date of such Borrowing. Each such notice shall be irrevocable and
shall specify (i) the aggregate principal amount of the Swingline Loans to be
made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a
Business Day). The Administrative Agent shall promptly give each Swingline
Lender written notice (or telephonic notice promptly confirmed in writing) of
each proposed Borrowing of Swingline Loans, of such Swingline Lender's
proportionate share thereof and of the other matters covered by the Notice of
Borrowing.
(c) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(C), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set
forth in such Section.
(d) Without in any way limiting the obligation of the
Borrower to confirm in writing any notice it may give hereunder by telephone,
the Administrative Agent may act prior to receipt of written confirmation
without liability upon the basis of such telephonic notice, believed by the
Administrative Agent in good faith to be from the Chairman, Chief Financial
Officer or Treasurer of the Borrower, or from any other person designated in
writing to the Administrative Agent by the Chief Financial Officer or Treasurer
of the Borrower as a person entitled to give telephonic notices under this
Agreement on behalf of the Borrower. In each such case, the Borrower hereby
waives the right to dispute the Administrative Agent's record of the terms of
any such telephonic notice.
1.04 Competitive Bid Borrowings. (a) Whenever the Borrower
desires to incur a Competitive Bid Borrowing, it shall deliver to the
Administrative Agent at the Administrative Agent's Office, prior to 11:00 A.M.
(New York time) at least three Business Days prior to the date of such proposed
Competitive Bid Borrowing, a written notice (each, a "Notice of Competitive Bid
Borrowing"), which notice shall specify in each case (i) the date (which shall
be a Business Day) and the aggregate amount of the proposed Competitive Bid
Borrowing, (ii) the maturity date for repayment of each Competitive Bid Loan to
be made as part of such Competitive Bid Borrowing (which maturity date may not
be earlier than 14 days after the date of such Competitive Bid Borrowing or
later than the earlier to occur of (x) 180 days after the date of such
Competitive Bid Borrowing and (y) the third Business Day preceding the Facility
Maturity Date), (iii) the interest payment date or dates relating thereto and
(iv) any other terms to
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be applicable to such Competitive Bid Borrowing. The Administrative Agent shall
promptly notify each Bidder of each such request for a Competitive Bid Borrowing
received by it from the Borrower by telecopying to each such Bidder a copy of
the related Notice of Competitive Bid Borrowing.
(b) Each Bidder shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid Loans to
the Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole discretion and determined
by such Lender independently of each other Lender, by notifying the
Administrative Agent (which shall give prompt notice thereof to the Borrower)
before 11:00 A.M. (New York time) on the date (the "Reply Date") which is two
Business Days before the date of such proposed Competitive Bid Borrowing, of the
minimum amount and maximum amount of each Competitive Bid Loan which such Lender
would be willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of Section
1.01(D), exceed such Lender's Commitment), the rate or rates of interest
therefor and such Lender's lending office with respect to such Competitive Bid
Loan; provided, that if the Administrative Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall notify the
Borrower of such offer before 9:30 A.M. (New York time) on the Reply Date. Any
Bidder not giving the Administrative Agent the notice specified in the preceding
sentence shall not be obligated to, and shall not, make any Competitive Bid Loan
as part of such Competitive Bid Borrowing.
(c) The Borrower shall, in turn, before 12:00 Noon (New
York time) on the Reply Date, either:
(i) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to such effect, or
(ii) accept one or more of the offers made by any Bidder
or Bidders by giving notice (in writing or by telephone confirmed in
writing) to the Administrative Agent of the amount of each Competitive
Bid Loan (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to the
Borrower by the Administrative Agent on behalf of such Bidder for such
Competitive Bid Borrowing) to be made by each Bidder as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Bidders by giving the Administrative Agent notice to that effect;
provided, that (x) acceptance of offers may only be made on the basis
of ascending Absolute Rates commencing with the lowest rate so offered
and (y) if offers are made by two or more Bidders at the same rate and
acceptance of all such equal offers would result in a greater principal
amount of Competitive Bid Loans being accepted than the aggregate
principal amount requested by the Borrower, the Borrower shall then
have the right to accept one or more such equal offers in their
entirety and reject the other equal offer or offers or to allocate
acceptance among all such equal offers (but giving effect to the
minimum and maximum amounts specified for each such offer), as the
Borrower may elect in its sole discretion; provided further, that in no
event shall the aggregate principal amount of the Competitive Bid Loans
accepted by the Borrower as part of a Competitive Bid Borrowing exceed
the amount specified by the Borrower in the related Notice of
Competitive Bid Borrowing.
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(d) If the Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is canceled, the Administrative Agent shall
give prompt notice thereof to the Bidders and such Competitive Bid Borrowing
shall not be made.
(e) If the Borrower accepts one or more of the offers
made by any Bidder or Bidders, the Administrative Agent shall in turn promptly
notify (x) each Bidder that has made an offer of the date and aggregate amount
of such Competitive Bid Borrowing and whether or not any offer or offers made by
such Bidder have been accepted by the Borrower and (y) each Bidder that is to
make a Competitive Bid Loan as part of such Competitive Bid Borrowing of the
amount of each Competitive Bid Loan to be made by such Bidder.
(f) On the last Business Day of each calendar quarter,
the Administrative Agent shall notify the Lenders of the aggregate principal
amount of Competitive Bid Loans outstanding at such time.
1.05 Disbursement of Funds. (a) No later than 1:00 P.M.
(New York time) on the date of each Borrowing (including Mandatory Borrowings),
each Lender will make available its pro rata portion, if any, of each Borrowing
requested to be made on such date in the manner provided in Section 1.05(b)
below. The amount of each Borrowing of Revolving Loans made available by a
Lender (other than a Non-Extending Lender) prior to its First Maturity Date
shall be applied as a utilization of the Short-Term Commitment and Long-Term
Commitment of such Lender on a pro rata basis (based upon the relative amounts
of the Short-Term Commitment and the Long-Term Commitment of such Lender, in
each case as in effect immediately prior to giving effect to such Borrowing).
(b) Each Lender shall make available all amounts it is to
fund under any Borrowing in U.S. dollars and immediately available funds to the
Administrative Agent at the Administrative Agent's Office and the Administrative
Agent will (except in the case of Mandatory Borrowings) make available to the
Borrower by depositing to its account at the Administrative Agent's Office the
aggregate of the amounts so made available in U.S. dollars and the type of funds
received. Unless the Administrative Agent shall have been notified by any Lender
prior to the date of any such Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from such Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (x) if paid by such Lender, the overnight
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Federal Funds Rate or (y) if paid by the Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.09, for the respective Loans.
(c) Nothing in this Section 1.05 shall be deemed to
relieve any Lender from its obligation to fulfill its commitments hereunder or
to prejudice any rights which the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
1.06 Notes; Register. (a) The Borrower's obligation to pay
the principal of, and interest on, the Revolving Loans made by each Lender
shall, except as provided in Sections 1.15 and 12.04 and only to the extent
requested by such Lender, be evidenced by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit A with blanks
appropriately completed in conformity herewith (each, a "Note" and,
collectively, the "Notes").
(b) The Note issued to each Lender shall (i) be payable
to the order of such Lender and be dated the Second Restatement Effective Date,
(ii) be in a stated principal amount equal to the Commitment of such Lender and
be payable in the principal amount of the Revolving Loans evidenced thereby,
(iii) mature on such Lender's Final Maturity Date and (iv) bear interest as
provided in the appropriate clause of Section 1.09 in respect of the Reference
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby.
(c) Each Lender will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of its Note endorse on the reverse side thereof the
outstanding principal amount of Revolving Loans evidenced thereby. Failure to
make any such notation or any error in any such notation shall not affect the
Borrower's obligations in respect of such Revolving Loans.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a register for the recordation of the names and
addresses of the Lenders, the Commitments (and Short-Term Commitments and
Long-Term Commitments, if any) of the Lenders from time to time, and the
principal amount of the Revolving Loans, Swingline Loans and Competitive Bid
Loans owing to each Lender from time to time together with the maturity and
interest rates applicable to each such Competitive Bid Loan, and other terms
applicable thereto (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
1.07 Conversions. The Borrower shall have the option to
convert on any Business Day all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Revolving Loans of one
Type into a Borrowing or Borrowings of another Type; provided that (i) no
partial conversion of Eurodollar Loans shall reduce the outstanding principal
amount of Eurodollar Loans made pursuant to a single Borrowing to less than the
Minimum Borrowing Amount, (ii) Reference Rate Loans may only be converted into
Eurodollar Loans if no Event of Default is in existence on the date of the
conversion and (iii) Borrowings resulting from conversions pursuant to this
Section 1.07 shall be limited in number as provided in Section 1.02. Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at the Administrative Agent's Office prior to 11:00 A.M. (New York time) at
least three Business Days' (or one Business Day's in the case of a conversion
into
- 7 -
Reference Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each, a "Notice of Conversion") specifying the Revolving
Loans to be so converted, the Type of Revolving Loans to be converted into and,
if to be converted into Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender notice as
promptly as practicable of any such proposed conversion affecting any of its
Revolving Loans.
1.08 Pro Rata Borrowings. All Borrowings of Revolving
Loans under this Agreement shall be loaned by the Lenders pro rata on the basis
of their Percentages or, in the case of Borrowings of Revolving Loans pursuant
to a Mandatory Borrowing, their Adjusted Percentages (with each such Borrowing
loaned by a Lender (other than a Non-Extending Lender) prior to its First
Maturity Date to be incurred from such Lender on a pro rata basis among the
Short-Term Commitment and Long-Term Commitment of such Lender (based upon the
relative amounts of the Short-Term Commitment and Long-Term Commitment of such
Lender, in each case as in effect immediately prior to giving effect to such
Borrowing)). All Borrowings of Swingline Loans shall be loaned by the Swingline
Lenders pro rata on the basis of their Swingline Commitments. It is understood
that no Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fulfill its commitments hereunder.
1.09 Interest. (a) The unpaid principal amount of each
Reference Rate Loan shall bear interest from the date of the Borrowing thereof
until maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be the Applicable Reference Rate Margin plus the Reference
Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at all
times be the Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) The unpaid principal amount of each Competitive Bid
Loan shall bear interest from the date the proceeds thereof are made available
to the Borrower until maturity (whether by acceleration or otherwise) at the
rate or rates per annum specified by a Bidder or Bidders, as the case may be,
pursuant to Section 1.04(b) and accepted by the Borrower pursuant to Section
1.04(c).
(d) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan shall bear interest at a rate per
annum equal to the Reference Rate in effect from time to time plus the sum of
(i) 2% and (ii) the Applicable Reference Rate Margin; provided, that each
Eurodollar Loan and Competitive Bid Loan shall bear interest after maturity
(whether by acceleration or otherwise) until the end of the Interest Period then
applicable thereto at a rate per annum equal to 2% in excess of the rate of
interest applicable thereto at maturity.
(e) Interest on each Loan shall accrue from and including
the date of any Borrowing to but excluding the date of any repayment thereof and
shall be payable (i) in respect of each Reference Rate Loan, quarterly in
arrears on the 15th day of each January, April, July
- 8 -
and October, (ii) in respect of any Competitive Bid Loan, at such times as
specified in the Notice of Competitive Bid Borrowing relating thereto, (iii) in
respect of each Eurodollar Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three-month intervals after the first day of
such Interest Period, (iv) in respect of each Loan (other than a Reference Rate
Loan), on any prepayment (on the amount prepaid) and (v) in respect of each
Loan, at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(f) All computations of interest hereunder shall be made
in accordance with Section 12.07(b).
(g) The Administrative Agent, upon determining the
interest rate for any Borrowing of Eurodollar Loans for any Interest Period,
shall promptly notify the Borrower and the Lenders thereof.
1.10 Interest Periods. At the time the Borrower gives a
Notice of Competitive Bid Borrowing in respect of the making of a Competitive
Bid Borrowing or at the time it gives a Notice of Borrowing or Notice of
Conversion in respect of the making of, or conversion into, a Borrowing of
Eurodollar Loans (in the case of the initial Interest Period applicable thereto)
or prior to 11:00 A.M. (New York time) on the third Business Day prior to the
expiration of an Interest Period applicable to a Borrowing of Eurodollar Loans,
it shall have the right to elect by giving the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) the Interest Period
applicable to such Borrowing, which Interest Period shall, at the option of the
Borrower, be (x) in the case of a Eurodollar Loan, a one, two, three or six
month period and (y) in the case of a Competitive Bid Loan, subject to
availability, a period of 14 to 180 days as elected by the Borrower in the
related Notice of Competitive Bid Borrowing. Notwithstanding anything to the
contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Reference
Rate Loans) and each Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period relating to a Borrowing of
Eurodollar Loans begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such
calendar month;
(iii) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any Interest Period
in respect of a Eurodollar Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day; and
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(iv) no Interest Period in respect of any Borrowing of
Eurodollar Loans shall extend beyond a Maturity Date for any Lender
participating in such Borrowing.
Notwithstanding the foregoing, if an Event of Default is in existence at the
time any Interest Period in respect of any Eurodollar Loans is to expire, such
Eurodollar Loans may not be continued as Eurodollar Loans but instead shall be
automatically converted on the last day of such Interest Period into Reference
Rate Loans. If upon the expiration of any Interest Period in respect of
Eurodollar Loans, the Borrower has failed to elect a new Interest Period to be
applicable thereto as provided above, the Borrower shall be deemed to have
elected to convert such Borrowing into a Borrowing of Reference Rate Loans
effective as of the expiration date of such current Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event
that (x) in the case of clause (i) below, the Administrative Agent or (y) in the
case of clauses (ii) and (iii) below, any Lender shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for
any Interest Period that, by reason of any changes arising on or after
the date of this Agreement affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Lender shall incur increased
costs or reductions in the amounts received or receivable hereunder
with respect to any Eurodollar Loans or Competitive Bid Loans because
of (x) any change since the date of this Agreement (or, in the case of
any such cost or reduction with respect to any Competitive Bid Loan,
since the date of the making of such Competitive Bid Loan) in any
applicable law, governmental rule, regulation, guideline or order (or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline
or order) (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D and/or (y) other circumstances affecting
the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Loan (other than Reference Rate Loans) has become unlawful by
compliance by such Lender in good faith with any law, governmental
rule, regulation, guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having the force
of law even though the failure to comply therewith would not be
unlawful), or, in the case of a Eurodollar Loan, has become
impracticable as a result of a contingency occurring after the date of
this Agreement which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall on such date give notice (if by telephone
confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter (x) in the case of clause (i) above,
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Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower
with respect to Eurodollar Loans which have not yet been incurred shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall pay to such Lender, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Lender, showing in reasonable detail the basis
for the calculation thereof, submitted to the Borrower by such Lender shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take one
of the actions specified in Section 1.11(b) as promptly as possible and, in any
event, within the time period required by law.
(b) At any time that any Eurodollar Loan or Competitive
Bid Loan is affected by the circumstances described in Section 1.11(a)(ii) (for
Eurodollar Loans only) or (iii), the Borrower may (and in the case of a
Eurodollar Loan or a Competitive Bid Loan affected pursuant to Section
1.11(a)(iii) shall) either (i) if the affected Eurodollar Loan or Competitive
Bid Loan is then being made pursuant to a Borrowing, cancel said Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof as promptly as practicable after the Borrower was notified by a
Lender pursuant to Section 1.11(a)(ii) or (iii), (ii) if the affected Eurodollar
Loan is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, require the affected Lender to convert each such
Eurodollar Loan into a Reference Rate Loan or (iii) if the affected Competitive
Bid Loan is then outstanding, prepay such Competitive Bid Loan in full; provided
that if more than one Lender is affected in a similar manner at any time, then
all such similarly affected Lenders must be treated the same pursuant to this
Section 1.11(b).
(c) If after the date hereof, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by a Lender or its
parent with any request or directive made or adopted after the date hereof
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's or its parent's capital or assets
as a consequence of such Lender's commitments or obligations hereunder to a
level below that which such Lender or its parent could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's or its parent's policies with respect to capital adequacy), then
from time to time, within 15 days after demand by such Lender (with a copy to
the Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent for such
reduction. Each Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.11(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not, subject to Section 1.16,
release or
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diminish any of the Borrower's obligations to pay additional amounts pursuant to
this Section 1.11(c) upon receipt of such notice.
(d) In the event that any Lender shall reasonably
determine (which determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto) at any time that by reason of
Regulation D such Lender is required to maintain reserves in respect of
eurodollar loans or liabilities during any period it has a Eurodollar Loan
outstanding, such Lender shall promptly notify the Borrower in writing
specifying the additional amounts required to indemnify such Lender against the
cost of maintaining such reserves (such written notice to set forth in
reasonable detail a computation of such additional amounts) and the Borrower
shall pay to such Lender such specified amounts as additional interest at the
time that such Borrower is otherwise required to pay interest in respect of the
affected Eurodollar Loan or, if later, on written demand therefor from such
Lender.
1.12 Compensation. The Borrower shall compensate each
Lender, upon its written request (which request shall set forth in reasonable
detail the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund its Eurodollar Loans or Competitive
Bid Loans but excluding any loss of anticipated profit with respect to such
Loans) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of Eurodollar
Loans or Competitive Bid Loans accepted by the Borrower in accordance with
Section 1.04(c)(ii) does not occur on a date specified therefor in a Notice of
Borrowing, Notice of Competitive Bid Borrowing or Notice of Conversion (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.11);
(ii) if any repayment or conversion of any of its Eurodollar Loans or any
repayment of Competitive Bid Loans occurs on a date which is not the last day of
an Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans or Competitive Bid Loans when required by
the terms of this Agreement or (y) an election made pursuant to Section 1.11(b).
Calculation of all amounts payable to a Lender under this Section 1.12 in
respect of Eurodollar Loans shall be made as though that Lender had actually
funded its relevant Eurodollar Loan through the purchase of a Eurodollar deposit
bearing interest at the Eurodollar Rate in an amount equal to the amount of that
Loan, having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of that Lender
to a domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Loans in any manner it
sees fit and the foregoing assumption shall be utilized only for the calculation
of amounts payable under this Section 1.12.
1.13 Change of Lending Office. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section
1.11(a)(ii) or (iii), 2.05 or 4.04 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event; provided, that such designation is made on such terms
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this
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Section 1.13 shall affect or postpone any of the obligations of the Borrower or
the right of any Lender provided in Section 1.11, 2.05 or 4.04.
1.14 Maturity Date Extensions. Prior to (but not less than
60 days nor more than 90 days prior to) the Extension Date and prior to (but not
less than 60 days nor more than 90 days prior to) each anniversary of the
Extension Date, the Borrower may make a written request to the Administrative
Agent, who shall forward a copy of each such request to each of the Continuing
Lenders, that the Facility Maturity Date then in effect be extended to the date
which is one year after such existing Facility Maturity Date. Such request shall
be accompanied by a certificate of an Authorized Officer of the Borrower stating
that no Default or Event of Default has occurred and is continuing. If, by the
date (a "Response Date") which is 30 days prior to the Extension Date or the
relevant anniversary thereof, as the case may be, Continuing Lenders which are
not Defaulting Lenders holding at least a majority of the Commitments held by
Continuing Lenders which are not Defaulting Lenders agree thereto in writing,
the Facility Maturity Date, and the Final Maturity Date of each Continuing
Lender then consenting, shall be automatically extended to the first anniversary
of the then existing Facility Maturity Date. In the event that the Borrower has
not obtained the requisite percentage of Continuing Lenders to permit an
extension by the relevant Response Date, the Borrower may extend the deadline
for obtaining such percentage to the 30th day following such Response Date in
order to take such actions, including those contemplated by Section 1.15, with
respect to any Lender that is a Non-Continuing Lender after giving effect to
such Response Date in order to obtain the requisite percentage of Lenders
constituting Continuing Lenders to permit such extension. The Administrative
Agent shall notify the Borrower and each Lender of the effectiveness of any such
extension. No Lender shall be obligated to grant any extensions pursuant to this
Section 1.14 and any such extension shall be in the sole discretion of each of
them. A Lender's Final Maturity Date shall not be so extended pursuant to this
Section 1.14 for (x) any Lender that is a Non-Continuing Lender at the time such
request for extension is made and (y) any Continuing Lender at the time of such
request that has not consented in writing, within the time specified above, to
any such request for the extension thereof.
1.15 Replacement of Lenders. If (w) any Lender becomes a
Non-Continuing Lender at any time after the first Response Date occurring after
the Second Restatement Effective Date, (x) any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans or fund Unpaid
Drawings, (y) any Lender refuses to give timely consent to proposed changes,
waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Lenders or (z) any Lender is owed increased costs
under Section 1.11(a) or (c), Section 2.05 or Section 4.04 which in the judgment
of the Borrower are material in amount and which are not otherwise requested
generally by the other Lenders, the Borrower shall have the right, if no Event
of Default then exists and, in the case of a Lender described in clause (z)
above, such Lender has not withdrawn its request for such compensation or
changed its applicable lending office with the effect of eliminating or
substantially decreasing (to a level which in the judgment of the Borrower is
not material) such increased cost, to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferee or Transferees
(collectively, the "Replacement Lender") reasonably acceptable to the Majority
SMA, provided that (i) at the time of any replacement pursuant to this Section
1.15, the Replacement Lender shall enter into one or more Assignment Agreements
pursuant to which the Replacement Lender shall acquire all of the Commitment
(and the Short-Term Commitment and Long-Term
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Commitment, if any) and outstanding Loans of, and participations in Letters of
Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (a) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (b) an amount equal to such Replaced Lender's
participations in Unpaid Drawings that have been funded by such Replaced Lender,
together with all then unpaid interest with respect thereto at such time, and
(c) an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender pursuant to Section 3.01 hereof and (y) the appropriate Letter
of Credit Issuer (or, to the extent the Letter of Credit Issuer has been funded
for any portion of Unpaid Drawings not funded by such Replacement Lender through
an increase in the other Lenders' Adjusted Percentages, the other Lenders so
affected) an amount equal to such Replaced Lender's Percentage of any Unpaid
Drawing not funded by such Replaced Lender, (ii) all obligations of the Borrower
owing to the Replaced Lender (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement and (iii) in the case of the replacement of a
Replaced Lender that is a Non-Continuing Lender as contemplated by clause (w)
above, the only Maturity Date applicable to the Replacement Lender's Commitment
shall be the Facility Maturity Date then in effect. Upon the execution of the
respective assignment documentation, the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note executed by the
Borrower, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such Replaced Lender.
1.16 Notice of Certain Costs. Notwithstanding anything in
this Agreement to the contrary, to the extent any notice required by Section
1.11 or 2.05 is given by any Lender more than 180 days after the occurrence of
the event giving rise to the additional cost, reduction in amounts or other
additional amounts of the type described in such Section, such Lender shall not
be entitled to compensation under Section 1.11 or Section 2.05, as the case may
be, for any such amounts incurred or accruing prior to the giving of such notice
to the Borrower.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms
and conditions herein set forth, the Borrower, at any time and from time to time
on or after the Original Effective Date and prior to the Facility Maturity Date,
may request that a Letter of Credit Issuer issue, for the account of the
Borrower and in support of any Permitted Obligations, to replace Existing
Letters of Credit, to effect Permitted Litigation Bonding or in support of such
other obligations of the Borrower and/or any of its Subsidiaries as are
acceptable to the Majority SMA, an irrevocable standby letter of credit or
letters of credit in such form as may be approved by such Letter of Credit
Issuer and the Majority SMA, acting reasonably, and, subject to and upon the
terms and conditions set forth in this Agreement, each Designated Issuer and, to
the extent it has agreed to issue Letters of Credit, each other Letter of Credit
Issuer will issue the Letters of Credit so requested to be issued. It is the
intention of the Borrower and the Designated Issuers that each Designated Issuer
only issue Letters of Credit in an aggregate Stated Amount that is substantially
pro rata to the aggregate Stated Amount of the Letters of Credit issued by each
other Designated Issuer, it being recognized that credit policies of
beneficiaries may result in non-pro rata
- 14 -
treatment for one or more Designated Issuers and may require adjustments to the
procedures set forth in the next sentence. To effect the foregoing intention,
(i) subject to the following clauses (ii) and (iii), new Letters of Credit
issued after the Original Effective Date will be issued serially by the
Designated Issuers in the same order as the Designated Issuers are listed in the
definition thereof, (ii) any Letter of Credit with a Stated Amount in excess of
$100,000,000 that is to be issued by a Designated Issuer will be issued
severally by all Designated Issuers, pro rata among same (or otherwise allocated
to give effect to clause (i) above), with JPMCB, if an issuer thereunder (or, if
JPMCB is not an issuer, such other issuer as selected by the Borrower) to be the
paying agent under any such Letter of Credit, and (iii) a Designated Issuer will
not be obligated to (but may in its sole discretion) issue any Letter of Credit
if after giving effect thereto the aggregate Stated Amount of all outstanding
Letters of Credit issued by such Designated Issuer shall exceed by more than
$100,000,000 the highest aggregate Stated Amount of outstanding Letters of
Credit issued by any other Designated Issuer, with the Administrative Agent to
provide the Designated Issuers at the time of issuance of any new Letter of
Credit with any requested information relating to the outstanding Letters of
Credit issued by the Designated Issuers. The Administrative Agent will
coordinate the issuance of Letters of Credit by the Designated Issuers to give
effect to the two foregoing sentences.
(b) Notwithstanding the foregoing (i) no Letter of Credit
shall be issued (x) the Stated Amount of which, when added to the Letter of
Credit Outstandings at such time would exceed, when added to the sum of the
aggregate principal amount of all Revolving Loans made by Non-Defaulting Lenders
and all Competitive Bid Loans and all Swingline Loans then outstanding, the
Adjusted Total Commitment at such time or (y) with an expiration date beyond the
then First Maturity Date of any Lender if after giving effect thereto the Stated
Amount of all Letters of Credit with an expiration date beyond such First
Maturity Date would exceed, when added to the aggregate outstanding principal
amount of all Competitive Bid Loans and Revolving Loans with Interest Periods
that extend beyond such First Maturity Date, the Expected Total Commitment in
effect for each day on which such Letter of Credit is to be outstanding that
occurs beyond such First Maturity Date; (ii) each Letter of Credit shall, have
an expiry date occurring no later than the Business Day next preceding the then
First Maturity Date of the Letter of Credit Issuer or Letter of Credit Issuers
thereunder; (iii) each Letter of Credit shall be denominated in U.S. dollars or
an Approved Alternate Currency; and (iv) no Letter of Credit shall be issued by
a Letter of Credit Issuer after it has received a notice in writing from the
Required Lenders that one or more of the applicable conditions specified in
Section 5 are not then satisfied.
(c) Annex III hereto contains a description of all letters of
credit issued by any Lender pursuant to, or existing under, the First Amended
and Restated Credit Agreement and outstanding on the Second Restatement
Effective Date (and setting forth, with respect to each such letter of credit,
(i) the name of the issuing lender, (ii) the letter of credit number, (iii) the
name(s) of the account party or account parties, (iv) the stated amount
(including the currency in which such letter of credit is denominated), (v) the
name of the beneficiary and (vi) the expiry date). Each such letter of credit,
including any extension or renewal thereof (each, as amended from time to time
in accordance with the terms thereof and hereof, an "Existing Letter of Credit")
shall constitute a "Letter of Credit" for all purposes of this Agreement,
issued, for purposes of Section 2.03(a), on the Second Restatement Effective
Date and the respective issuer(s)
-15-
thereof shall constitute the "Letter of Credit Issuer(s)" with respect to such
Letter of Credit for all purposes of this Agreement.
2.02 Letter of Credit Requests. Whenever the Borrower desires
that a Letter of Credit be issued for its account, it shall give the
Administrative Agent and the Letter of Credit Issuer or Letter of Credit Issuers
that are to issue same at least five Business Days' (or such lesser number of
days as may be agreed to by the relevant Letter of Credit Issuer) written notice
thereof. Each notice shall be executed by the Borrower and shall be in the form
of Exhibit B attached hereto (each, a "Letter of Credit Request"). The
Administrative Agent shall promptly transmit copies of each Letter of Credit
Request to each Lender.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit (and on the Second
Restatement Effective Date, in the case of Existing Letters of Credit), such
Letter of Credit Issuer shall be deemed to have sold and transferred to each
other Lender (each such other Lender, in its capacity under this Section 2.03, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation
(each, a "participation"), to the extent of such Participant's Adjusted
Percentage (with each such purchase by a Lender (other than a Non-Extending
Lender) prior to its First Maturity Date to be applied as a utilization of the
Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata
basis (based upon the relative amounts of the Short-Term Commitment and the
Long-Term Commitment of such Lender, in each case as in effect immediately prior
to giving effect to such purchase)), in such Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor
that remains in effect after the Original Effective Date, or guaranty pertaining
thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the Participants as provided in
Section 3.01(c) and the Participants shall have no right to receive any portion
of any Facing Fees). Upon any change in the Commitments (and the Short-Term
Commitments and Long-Term Commitments, if any) of the Lenders pursuant to
Section 1.15 or 12.04, the termination of the Commitment of a Non-Extending
Lender on its Final Maturity Date, the termination of the Short-Term Commitment
of any Lender with such a commitment on its First Maturity Date, the termination
of a Commitment of a Non-Continuing Lender or the occurrence of any Lender
Default, it is hereby agreed that, with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new Adjusted
Percentages of the assignor and assignee Lender, of all Lenders, all Continuing
Lenders or all Non-Defaulting Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the Letter of Credit Issuer issuing same shall have no obligation relative to
the Participants other than to confirm that any documents required to be
delivered under such Letter of Credit have been delivered and that they appear
to comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by a Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Letter of Credit Issuer any resulting liability.
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(c) In the event that any Letter of Credit Issuer makes any
payment under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to such Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent and each Participant of such failure, and each Participant
shall promptly and unconditionally pay to the Administrative Agent for the
account of such Letter of Credit Issuer, the amount of such Participant's
Adjusted Percentage of such unreimbursed payment in lawful money of the United
States of America and in same day funds (with each such payment by a Lender
(other than a Non-Extending Lender) prior to its First Maturity Date to be
applied as a utilization of the Short-Term Commitment and Long-Term Commitment
of such Lender on a pro rata basis (based upon the relative amounts of the
Short-Term Commitment and the Long-Term Commitment of such Lender, in each case
as in effect immediately prior to giving effect to such payment)); provided,
however, that no Participant shall be obligated to pay to the Administrative
Agent for the account of such Letter of Credit Issuer its Adjusted Percentage of
such unreimbursed amount for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence as determined by a court of competent
jurisdiction on the part of such Letter of Credit Issuer. If such Letter of
Credit Issuer so notifies, prior to 11:00 A.M. (New York time) on any Business
Day, any Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the Administrative Agent for the account of
such Letter of Credit Issuer such Participant's Adjusted Percentage of the
amount of such payment on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its Adjusted Percentage of the
amount of such payment available to the Administrative Agent for the account of
such Letter of Credit Issuer, such Participant agrees to pay to the
Administrative Agent for the account of such Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of such Letter of Credit Issuer at the overnight Federal Funds Rate. The
failure of any Participant to make available to the Administrative Agent for the
account of the applicable Letter of Credit Issuer its Adjusted Percentage of any
payment under any Letter of Credit shall not relieve any other Participant of
its obligation hereunder to make available to the Administrative Agent for the
account of such Letter of Credit Issuer its Adjusted Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to the Administrative Agent such other Participant's Adjusted
Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment in
respect of an unpaid reimbursement obligation as to which the Administrative
Agent has received for the account of such Letter of Credit Issuer any payments
from the Participants pursuant to the preceding clause (c), such Letter of
Credit Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Participant which has paid its Adjusted Percentage of
such reimbursement obligation, in lawful money of the United States of America
and in same day funds, an amount equal to such Participant's share (based upon
the proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations (with each such payment to a Lender (other than a
Non-Extending Lender) on or prior to its First Maturity Date to be applied to
reduce the utilization of the Short-Term Commitment and Long-Term Commitment of
such
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Lender on a pro rata basis (based upon the relative amounts of the Short-Term
Commitment and the Long-Term Commitment of such Lender, in each case as in
effect immediately prior to giving effect to such payment)).
(e) The obligations of the Participants to make payments to
the Administrative Agent for the account of the Letter of Credit Issuers with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever (except as expressly provided in Section 2.03(c)) and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Administrative Agent, any Letter of Credit Issuer, any Lender, or other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in
Section 5 hereof to have been satisfied at the time of the issuance of
any Letter of Credit unless the applicable Letter of Credit Issuer
shall have received a notice in writing to such effect from the
Required Lenders pursuant to Section 2.01(b)(iv) hereof prior to the
issuance of such Letter of Credit.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Letter of Credit Issuer, by
making payment to the Administrative Agent in U.S. dollars and immediately
available funds at the Administrative Agent's Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
issued by it (each such amount so paid until reimbursed, an "Unpaid Drawing")
immediately after, and in any event on the date of, notice given by such Letter
of Credit Issuer to the Borrower of such payment (which notice each Letter of
Credit Issuer hereby agrees to give promptly after the making of any payment or
disbursement under a Letter of Credit), with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the date such Letter of
Credit
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Issuer is reimbursed therefor, at a rate per annum which shall be the Applicable
Reference Rate Margin plus the Reference Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed by the second Business Day
following any such notice of payment or disbursement), such interest to be
payable on demand. Notwithstanding the foregoing, to the extent that a Letter of
Credit Issuer of a Letter of Credit denominated in a currency other than U.S.
dollars has agreed in writing to such arrangement at the time of the issuance of
such Letter of Credit, the Borrower shall reimburse any Drawing thereunder in
the currency in which such Letter of Credit is denominated; provided, that (x)
if any such Drawing is made at a time when there exists an Event of Default or
(y) if such reimbursement is not made by the close of business two Business Days
after the Borrower has received notice of such Drawing, then, in either such
case, such reimbursement shall instead be made in U.S. dollars and in
immediately available funds.
(b) The Borrower's obligations under this Section 2.04 to
reimburse each Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) issued by it shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any other Person may
have or have had against any Lender (including in its capacity as a Letter of
Credit Issuer or as a Participant), including, without limitation, any defense
based upon the failure of any drawing under a Letter of Credit (each, a
"Drawing") to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
Drawing; provided, that the Borrower shall not be obligated to reimburse the
respective Letter of Credit Issuer for any wrongful payment made by such Letter
of Credit Issuer under a Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence as determined by a court of
competent jurisdiction on the part of such Letter of Credit Issuer.
2.05 Increased Costs. If after the date hereof, the adoption
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or actual compliance by any Letter of Credit Issuer or
any Participant with any request or directive made or adopted after the date
hereof (whether or not having the force of law), by any such authority, central
bank or comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by such Letter of Credit Issuer, or such Participant's
participation therein, or (ii) impose on any Letter of Credit Issuer or any
Participant any other conditions affecting its obligations under this Agreement
in respect of Letters of Credit or participations therein or any Letter of
Credit or such Participant's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such
Participant of issuing, maintaining or participating in any Letter of Credit, or
to reduce the amount of any sum received or receivable by such Letter of Credit
Issuer or such Participant hereunder in respect of Letters of Credit or
participations therein, then, upon demand to the Borrower by such Letter of
Credit Issuer or such Participant, as the case may be (a copy of which notice
shall be sent by such Letter of Credit Issuer or such Participant to each Senior
Managing Agent), the Borrower shall pay to such Letter of Credit Issuer or such
Participant such additional amount or amounts as will compensate such Letter of
Credit Issuer or such Participant for such increased cost or reduction. A
certificate submitted to the Borrower by such Letter of Credit Issuer or such
Participant, as the case may be (a copy of which certificate shall be sent by
such
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Letter of Credit Issuer or such Participant to each Senior Managing Agent),
setting forth in reasonable detail the basis for the determination of such
additional amount or amounts necessary to compensate such Letter of Credit
Issuer or such Participant as aforesaid shall be conclusive and binding on the
Borrower absent manifest error although the failure to deliver any such
certificate shall not, subject to Section 1.16, release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05
upon receipt of such certificate.
2.06 Indemnification; Nature of Letter of Credit Issuers'
Duties. (a) In addition to its other obligations under this Section 2, the
Borrower hereby agrees to protect, indemnify, pay and save each of the Letter of
Credit Issuers harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees but excluding those taxes excluded from the definition of Taxes
in Section 4.04) that any such Letter of Credit Issuer may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit or (ii) the failure of any Letter of Credit Issuer to honor a drawing
under a Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called "Government
Acts").
(b) As between the Borrower and the Letter of Credit Issuers,
the Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Letter of Credit Issuers shall
not be responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for
errors in interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (vii) for any
consequences arising from causes beyond the control of the Letter of Credit
Issuers, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of any of the Letter of Credit
Issuers' rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Letter of Credit Issuer, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Letter of Credit Issuer under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and applied to
protect and indemnify the Letter of Credit Issuers against any and all risks
involved in the issuance of the Letters of Credit arising from any present or
future Government Acts. The Letter of Credit Issuers shall not, in any way, be
liable for any failure by the Letter of Credit Issuers or anyone
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else to pay any Drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Letter of Credit Issuers.
(d) Nothing in this Section 2.06 is intended to limit the
reimbursement obligation of the Borrower contained in Section 2.04 hereof. The
obligations of the Borrower under this Section 2.06 shall survive the
termination of this Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the rights
of the Letter of Credit Issuers to enforce any right, power or benefit under
this Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 2.06, (i) the Borrower shall have no obligation to indemnify any Letter
of Credit Issuer in respect of any liability incurred by such Letter of Credit
Issuer arising solely out of the gross negligence or willful misconduct of such
Letter of Credit Issuer as determined by a court of competent jurisdiction and
(ii) the Borrower shall have a claim against any Letter of Credit Issuer and
such Letter of Credit Issuer shall be liable to the Borrower to the extent, but
only to the extent, of any direct, as opposed to consequential, damages suffered
by the Borrower which the Borrower proves were caused by (x) such Letter of
Credit Issuer's willful misconduct or gross negligence as determined by a court
of competent jurisdiction in determining whether the documents presented under
its Letter of Credit complied with the terms of such Letter of Credit or (y)
such Letter of Credit Issuer's willful or grossly negligent failure to pay under
its Letter of Credit after presentation to it of a drawing certificate and any
other documents strictly complying with the terms and conditions of such Letter
of Credit as determined by a court of competent jurisdiction.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay the Administrative
Agent for the account of each Non-Defaulting Lender a facility fee (the
"Facility Fee") for the period from and including the Original Effective Date to
but not including the Facility Maturity Date or, if earlier, the date upon which
the Total Commitment has been terminated, computed for each day at a rate per
annum equal to the Applicable Facility Fee Percentage for such day multiplied by
the then Commitment of such Lender (including, for avoidance of doubt, the then
Commitment of such Lender under, and as defined in, the First Amended and
Restated Credit Agreement on any day during the period commencing on April 15,
2002 and ending on the Second Restatement Effective Date). Such Facility Fee
shall be due and payable quarterly in arrears on the 15th day of each January,
April, July and October and on the date upon which the Total Commitment is
terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of the Lenders pro rata on the basis of their respective Adjusted
Percentages, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee"), computed for each day at a rate equal to the Applicable Eurodollar Margin
for such day multiplied by the then Stated Amount of such Letter of Credit
(including, in the case of an Existing Letter of Credit, the then Stated Amount
of such Existing Letter of Credit for each day occurring on and after April 15,
2002 and prior to the Second Restatement Effective Date). Such Letter of Credit
Fees shall be due and payable quarterly in arrears on the 15th day of each
January, April, July and October and on the date upon which the Total Commitment
is terminated.
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(c) The Borrower agrees to pay to the Administrative Agent for
the account of each Letter of Credit Issuer a fee in respect of each Letter of
Credit issued by it (the "Facing Fee") computed for each day at a rate equal to
..25% multiplied by the average daily Stated Amount of such Letter of Credit
(including, in the case of an Existing Letter of Credit, the then Stated Amount
of such Existing Letter of Credit for each day occurring on and after April 15,
2002 and prior to the Second Restatement Effective Date). Such Facing Fees shall
be due and payable quarterly in arrears on the 15th day of each January, April,
July and October and on the date upon which the Total Commitment is terminated.
(d) The Borrower hereby agrees to pay directly to each Letter
of Credit Issuer upon each issuance of, drawing under, and/or amendment of, a
Letter of Credit issued by such Letter of Credit Issuer such amount as shall at
the time of such issuance, drawing or amendment be the administrative charge
which such Letter of Credit Issuer is customarily charging for issuances of,
drawings under or amendments of, letters of credit issued by it.
(e) The Borrower shall pay to the Administrative Agent for the
account of each Senior Managing Agent and each other Lender the fees specified
in the accepted commitment letter, or related fee letter, executed by such
Senior Managing Agent or such Lender, as the case may be, when and as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at the Administrative Agent's Office (which notice
the Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, (i) to terminate the
Total Unutilized Commitment, in part or in whole (or, to the extent that at such
time there are no Loans outstanding and no Letter of Credit Outstandings, to
terminate the Total Commitment, in whole), provided, that (x) any such
termination shall apply to proportionately and permanently reduce the Commitment
of each of the Lenders, (y) the amount of any such reduction to the Commitment
of any Lender shall reduce the Short-Term Commitment, if any, and the Long-Term
Commitment, if any, of such Lender on a pro rata basis (based upon the relative
amounts of the Short-Term Commitment and the Long-Term Commitment, if any, of
such Lender, in each case as in effect prior to giving effect to such reduction)
and (z) any partial reduction pursuant to this Section 3.02(i) shall be in the
amount of at least $10,000,000, and (ii) at any time within the 30 days prior to
the Final Maturity Date of any Non-Continuing Bank and so long as no Event of
Default then exists, to terminate the Commitment (and the Short-Term Commitment
and Long-Term Commitment, if any) of such Non-Continuing Bank, provided that (x)
all Loans, together with unpaid accrued interest thereon, of such Non-Continuing
Bank are repaid in full and (y) after giving effect to such termination and
repayment, the sum of the aggregate principal amount of all outstanding Loans
and the Letter of Credit Outstandings does not exceed the Total Commitment.
3.03 Mandatory Reduction of Commitments, etc. (a) On the date
which is the earlier of (x) 30 days after any date on which a Change of Control
occurs and (y) the date on which any Indebtedness of the Borrower in excess of
$75,000,000 individually or $150,000,000 in the aggregate is required to be
repurchased as a result of any such Change of Control, each of
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(i) the Total Commitment (and the Commitment of each Lender and the Short-Term
Commitment and Long-Term Commitment of each Lender with such a commitment) and
(ii) the Total Swingline Commitment (and the Swingline Commitment of each
Swingline Lender) shall be reduced to zero.
(b) The Total Commitment shall be reduced on any date on which
the Borrower or Xxxxxxxx Tobacco issues or incurs Specified Debt if after giving
effect to such issuance the sum of (i) the Total Commitment plus (ii) the
aggregate outstanding principal amount of Specified Debt exceeds $3 billion,
such reduction to be in amount equal to the excess of such sum over $3 billion.
(c) The Total Commitment shall terminate on the Facility
Maturity Date.
(d) Each Swingline Lender's Swingline Commitment shall
terminate on such Swingline Lender's Swingline Maturity Date.
(e) Each Lender's Short-Term Commitment, if any, shall
terminate on such Lender's First Maturity Date.
(f) The Commitment of each Lender (and the Long-Term
Commitment of each Lender with such a commitment) shall terminate on such
Lender's Final Maturity Date.
(g) The Commitment of each Lender with a Short-Term Commitment
(before giving effect to the termination thereof pursuant to preceding clause
(e)) shall be reduced on such Lender's First Maturity Date by an amount equal to
its Short-Term Commitment on such date (immediately prior to giving effect to
the termination thereof pursuant to preceding clause (e)).
(h) Each partial reduction of the Total Commitment pursuant to
Section 3.03(b) shall apply proportionately to reduce the Commitment of each
Lender and each such reduction to the Commitment of each Lender (other than a
Non-Extending Lender) shall reduce the Short-Term Commitment, if any, and the
Long-Term Commitment, if any, of such Lender, with such reduction to be applied
prior to the First Maturity Date of such Lender on a pro rata basis among the
Short-Term Commitment and Long-Term Commitment of such Lender (based upon the
relative amounts of the Short-Term Commitment and the Long-Term Commitment, if
any, of such Lender, in each case as in effect before giving effect to such
reduction).
SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right
to prepay Revolving Loans and Swingline Loans in whole or in part from time to
time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent at the Administrative Agent's Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and (in the case of Eurodollar Loans)
the specific Borrowing(s) pursuant to which made, which notice shall be given by
the Borrower no later than (x) in the case of Revolving Loans, 11:00 A.M. (New
York time) one Business Day prior to, or (y) in the case of Swingline Loans,
11:00 A.M. (New York time) on, the date of such prepayment and shall promptly be
transmitted by the Administrative Agent to each of the Lenders or Swingline
Lenders, as the case may be; (ii) each partial prepayment of any Borrowing
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shall be in an aggregate principal amount of at least $10,000,000, provided that
no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Revolving Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount for Eurodollar Loans; and (iii)
each prepayment in respect of any Revolving Loans or Swingline Loans made
pursuant to a Borrowing shall be applied pro rata among such Revolving Loans or
Swingline Loans, as the case may be, provided that (x) at the Borrower's
election in connection with any prepayment pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loan of a Defaulting Lender at
any time when the aggregate amount of Revolving Loans of any Non-Defaulting
Lender exceeds such Non-Defaulting Lender's Percentage of all Revolving Loans
then outstanding and (y) the Borrower may repay the Revolving Loans and
Swingline Loans of a Non-Continuing Bank in connection with the termination of
the Commitment of such Non-Continuing Bank in accordance with the requirements
of clause (ii) of Section 3.02 without any accompanying repayment of the
Revolving Loans or Swingline Loans, as the case may be, of the other Banks, so
long as all amounts, if any, owing to such Bank (and any other Banks) pursuant
to Section 1.12 are paid at such time. The Borrower shall not have the right to
voluntarily prepay any Competitive Bid Loan without the consent of the Lender
that has made same.
4.02 Mandatory Prepayments.
(A) Requirements. If on any date the sum of the outstanding
principal amount of Revolving Loans made by Non-Defaulting Lenders, Swingline
Loans and Competitive Bid Loans and the aggregate amount of Letter of Credit
Outstandings (all the foregoing, collectively, the "Aggregate Outstandings")
exceeds the Adjusted Total Commitment as then in effect, the Borrower shall
repay on such date the principal of Swingline Loans and, after Swingline Loans
have been paid in full, Revolving Loans, in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Loans, the Aggregate Outstandings exceed the Adjusted Total Commitment
then in effect, the Borrower shall pay to the Administrative Agent an amount in
cash equal to such excess and the Administrative Agent shall hold such payment
as security for the obligations of the Borrower hereunder (including, without
limitation, obligations in respect of Letter of Credit Outstandings) pursuant to
a cash collateral agreement to be entered into in form and substance
satisfactory to the Administrative Agent (which shall permit certain investments
in cash equivalents satisfactory to the Administrative Agent, until the proceeds
are applied to the secured obligations). If, after giving effect to the
prepayment of all outstanding Swingline Loans and Revolving Loans and the cash
collateralization of all Letter of Credit Outstandings as set forth above, the
remaining Aggregate Outstandings exceed the Adjusted Total Commitment, the
Borrower shall repay on such date the principal of Competitive Bid Loans in an
aggregate amount equal to such excess, provided that no Competitive Bid Loan
shall be prepaid pursuant to this sentence unless the Lender that made same
consents to such prepayment. In addition, the Borrower shall repay (i) to each
Lender on such Lender's First Maturity Date the Short-Term Commitment Percentage
of such Lender's outstanding Revolving Loans on such date, (ii) to each Lender
on such Lender's Final Maturity Date, the outstanding Revolving Loans of such
Lender on such date and (iii) to each Swingline Lender on such Swingline
Lender's Swingline Maturity Date, the outstanding Swingline Loans of such
Swingline Lender on such date.
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(B) Application. With respect to each prepayment of Loans
required by this Section 4.02, the Borrower may designate the Types of Loans
which are to be prepaid and the specific Borrowing(s) pursuant to which made;
provided, that: (i) if any prepayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Revolving Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for
Eurodollar Loans, such Borrowing shall immediately be converted into Reference
Rate Loans; (ii) each prepayment of any Loans made pursuant to a Borrowing
(including, without limitation, any repayment of Revolving Loans or Swingline
Loans on any required payment date pursuant to clause (i), (ii) or (iii) of the
last sentence appearing in Section 4.02(A)) shall be applied pro rata among such
Loans; (iii) each prepayment of Revolving Loans to any Lender (other than a
Non-Extending Lender) pursuant to a specific Borrowing on or prior to the First
Maturity Date of such Lender shall be applied to reduce the utilization of the
Short-Term Commitment and Long-Term Commitment of such Lender on a pro rata
basis (based upon the relative amounts of the Short-Term Commitment and the
Long-Term Commitment of such Lender, in each case as in effect immediately prior
to giving effect to such prepayment)) and (iv) notwithstanding the provisions of
the preceding clause (ii), no prepayment made pursuant to Section 4.02(A) (other
than the last sentence thereof) of Revolving Loans shall be applied to the
Revolving Loans of any Defaulting Lender. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a view,
but no obligation, to minimize breakage costs owing under Section 1.12.
4.03 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Administrative Agent for the ratable account of the Lenders entitled
thereto, not later than 1:00 P.M. (New York time) on the date when due and shall
be made in immediately available funds and in lawful money of the United States
of America at the Administrative Agent's Office, it being understood that
written, telex or facsimile notice by the Borrower to the Administrative Agent
to make a payment from the funds in the Borrower's account at the Administrative
Agent's Office shall constitute the making of such payment to the extent of such
funds held in such account. The Administrative Agent will thereafter cause to be
distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 P.M. (New York time) on such day) like funds
relating to the payment of principal or interest or Fees ratably to the Lenders
entitled thereto. If and to the extent that any such distribution shall not be
so made by the Administrative Agent in full on the same day (if payment was
actually received by the Administrative Agent prior to 2:00 P.M. (New York time)
on such day), the Administrative Agent shall pay to each Lender its ratable
amount thereof and each such Lender shall be entitled to receive from the
Administrative Agent, upon demand, interest on such amount at the overnight
Federal Funds Rate for each day from the date such amount is paid to the
Administrative Agent until the date the Administrative Agent pays such amount to
such Lender.
(b) Any payments under this Agreement which are made later
than 1:00 P.M. (New York time) shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
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4.04 Net Payments. (a) All payments made by the Borrower
hereunder will be made without setoff or counterclaim. The Borrower will pay,
prior to the date on which penalties attach thereto, all present and future
income, stamp and other taxes, levies, or costs and charges whatsoever imposed,
assessed, levied or collected on or in respect of a Loan and/or the recording,
registration, notarization or other formalization thereof and/or any payments of
principal, interest or other amounts made on or in respect of a Loan (all such
taxes, levies, costs and charges being herein collectively called "Taxes";
provided that Taxes shall not include taxes imposed on or measured by the
overall net income of that Lender (or any alternative tax imposed generally by
any relevant jurisdiction in lieu of a tax on net income) by the United States
of America or any political subdivision or taxing authority thereof or therein,
taxes imposed under Section 884 of the Code or taxes on or measured by the
overall net income (or any alternative tax imposed generally by any relevant
jurisdiction in lieu of a tax on net income) of that Lender or any foreign
office, branch or subsidiary of that Lender by any foreign country or
subdivision thereof in which that Lender or that office, branch or subsidiary is
doing business). The Borrower shall also pay such additional amounts equal to
increases in taxes payable by that Lender described in the foregoing proviso
which increases are attributable to payments made by the Borrower described in
the immediately preceding sentence of this Section. Promptly after the date on
which payment of any such Tax is due pursuant to applicable law, the Borrower
will, at the request of that Lender, furnish to that Lender evidence, in form
and substance satisfactory to that Lender, that the Borrower has met its
obligation under this Section 4.04. The Borrower will indemnify each Lender
against, and reimburse each Lender on demand for, any Taxes, as determined by
that Lender in its good faith and reasonable discretion. Such Lender shall
provide the Borrower with appropriate receipts for any payments or
reimbursements made by the Borrower pursuant to this Section 4.04.
(b) Each Lender which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for United States federal
income tax purposes agrees to provide to the Borrower on or prior to the
Original Effective Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.15 or
Section 12.04 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer and such Lender is in
compliance with the provisions of this Section 4.04(b)), on the date of such
assignment or transfer to such Lender, two accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a
complete exemption under an income tax treaty) (or successor forms) certifying
to such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement or any
Note. Each Lender that is a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is
not a corporation (as such term is defined in Section 7701(a)(3) of the Code)
for such purposes, agrees to provide to the Borrower on or prior to the Original
Effective Date, or in the case of a Lender that is an assignee or transferee of
an interest under this Agreement pursuant to Section 1.15 or Section 12.04
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer and such Lender is in compliance with the
provisions of this Section 4.04(b)), on the date of such assignment to such
Lender, two accurate and complete original signed copies of Internal Revenue
Service Form W-9 (or successor form). In addition, each such Lender agrees that
from time to time after the Original Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower two
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new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI or W-8BEN (with respect to a claim for benefits of an income tax
treaty), as the case may be, and such other forms as may be required in order to
confirm or establish the entitlement of such Lender to a continued exemption
from or reduction in United States withholding tax with respect to payments
under this Agreement or any Note, or it shall immediately notify the Borrower
and the Administrative Agent of its inability to deliver any such form.
Notwithstanding anything to the contrary contained in Section 4.04(a), (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or other similar taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for United States federal income tax purposes and which
has not provided to the Borrower such forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) to pay a Lender in respect of income or similar
taxes imposed by the United States or any additional amounts with respect
thereto if such Lender has not provided to the Borrower the Internal Revenue
Service forms required to be provided to the Borrower pursuant to this Section
4.04(b).
SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to the Second Restatement Effective
Date. This Agreement shall become effective on the date (the "Second Restatement
Effective Date") when each of the following conditions are first satisfied:
A. Execution; Notes. The Second Restatement Execution Date
shall have occurred as provided in Section 12.10 and there shall have been
delivered to the Administrative Agent for the account of each Lender requesting
same the appropriate Note executed by the Borrower in the amount, maturity and
as otherwise provided herein.
B. Officer's Certificate. The Administrative Agent shall have
received certificates, dated the Second Restatement Effective Date and signed by
an appropriate officer of the Borrower, stating that all of the applicable
conditions set forth in Sections 5.01F., G., H., J., K. and L. and 5.02 exist as
of such date.
C. Opinions of Counsel. The Administrative Agent shall have
received an opinion, or opinions, in form and substance satisfactory to each
Senior Managing Agent, addressed to each of the Lenders and dated the Second
Restatement Effective Date, from (i) Xxxxxxx X. Xxxxx, Executive Vice President,
General Counsel and Assistant Secretary of the Borrower, which opinion shall
cover the matters contained in Exhibit C-1 hereto and (ii) White & Case LLP,
special counsel to the Lenders, which opinion shall cover the matters contained
in Exhibit C-2 hereto, together with such other opinions, if any, covering such
matters as the Majority SMA shall reasonably request, from counsel, and in form
and substance, satisfactory to the Majority SMA.
D. Corporate Proceedings. On the Second Restatement Effective
Date, all corporate and legal proceedings and all instruments and agreements in
connection with the transactions contemplated by this Agreement and the other
Credit Documents shall be satis-
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factory in form and substance to each Senior Managing Agent, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including records of corporate proceedings
and governmental approvals, if any, which any Senior Managing Agent reasonably
may have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
E. Organizational Documentation etc. The Lenders shall have
received copies of the Certificate of Incorporation and By-Laws or other
equivalent organizational documents of each Credit Party, certified on the
Second Restatement Effective Date as true and complete by an appropriate
corporate officer or governmental authority.
F. Adverse Change, etc. Nothing shall have occurred from
December 31, 2001 to the Second Restatement Effective Date which has (x) a
material adverse effect on the ability of any Credit Party to perform its
obligations to the Lenders or (y) a Material Adverse Effect.
G. Litigation. Except as set forth in Annex IV hereto, there
shall be on the Second Restatement Effective Date no actions, suits,
proceedings, inquiry, injunction or restraining order pending, entered or
threatened with respect to the Borrower or any of its Subsidiaries that are
reasonably likely to have (x) a material adverse effect on the rights or
remedies of the Lenders or on the ability of any Credit Party to perform its
obligations to the Lenders hereunder or under any other Credit Document to which
it is a party or (y) a Material Adverse Effect.
H. No Defaults. On the Second Restatement Effective Date,
there shall exist no event of default (or condition which would constitute an
event of default with the giving of notice or the passage of time) under any
material financing or lease agreement or other material contract of any of the
Credit Parties.
I. Projections. The Lenders shall have received financial
forecasts for Borrower and its Subsidiaries for the period from January 1, 2002
to and including December 31, 2005 (the "Projections"). The Projections (and the
supporting assumptions and explanations thereto) shall be in form and substance
satisfactory to the Majority SMA.
J. Subsidiary Guaranty. Xxxxxxxx Tobacco and Acquisition Corp.
shall have duly authorized, executed and delivered an amended and restated
Subsidiary Guaranty substantially in the form of Exhibit D hereto (as so amended
and restated and as the same may be further amended, restated, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof,
the "Subsidiary Guaranty"), and the Subsidiary Guaranty shall be in full force
and effect.
K. Intercompany Subordination Agreement. Each of Xxxxxxxx
Tobacco, Acquisition Corp., FHS, GMB and X.X. Xxxxxxxx Tobacco Co. shall have
duly authorized, executed and delivered an amended and restated Subordination
Agreement substantially in the form of Exhibit G hereto (as so amended and
restated and as the same may be further amended, restated, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof,
the "Intercompany Subordination Agreement"), and the Intercompany Subordination
Agreement shall be in full force and effect.
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L. Fees, etc. On the Second Restatement Effective Date, the
Borrower shall have paid to each Senior Managing Agent and each Lender all
costs, fees and expenses payable to the Senior Managing Agents or the Lenders,
to the extent then due.
5.02 Conditions Precedent to All Credit Events. The obligation
of each Lender to make any Loans (other than pursuant to a Mandatory Borrowing)
and the obligation of each Letter of Credit Issuer to issue or extend Letters of
Credit, is subject, at the time of the making of each such Loan and/or the
issuance or extension of each such Letter of Credit, to the satisfaction of the
following conditions at such time:
A. No Default; Representations and Warranties. At the time of
each Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that all
of the applicable conditions specified above exist as of that time. All of the
certificates, legal opinions and other documents and papers referred to in
Section 5.01, unless otherwise specified, shall be delivered to the
Administrative Agent at the Administrative Agent's Office for the account of
each of the Lenders and, except for the Notes, in sufficient counterparts for
each of the Lenders and shall be satisfactory in form and substance to each
Senior Managing Agent.
SECTION 6. Representations, Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement, to make the Loans and
issue or participate in Letters of Credit as provided for herein, the Borrower
makes the following representations and warranties to and agreements with the
Lenders, all of which shall survive the execution and delivery of this Agreement
and the making of the Loans and the issuance (or, in the case of Existing
Letters of Credit, deemed issuance) of the Letters of Credit (with (x) all such
representations, warranties and agreements being first made on the Second
Restatement Effective Date and (y) the occurrence of each Credit Event being
deemed to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct in all material respects on and as of the
date hereof and as of the date of each such Credit Event, unless such
representation and warranty expressly indicates that it is being made as of any
specific date):
6.01 Status. Each of the Borrower and each of its Material
Subsidiaries (i) is a duly organized and validly existing corporation or other
entity in good standing under the laws of the jurisdiction of its organization
and has the corporate or other organizational power and authority to own its
property and assets and to transact the business in which it is engaged and (ii)
has duly qualified and is authorized to do business and is in good standing in
all jurisdictions where it is required to be so qualified and where the failure
to be so qualified would have a material adverse effect on the operations,
business, properties, assets or financial condition of the Borrower and its
Subsidiaries taken as a whole.
6.02 Power and Authority. Each Credit Party has the corporate
or other power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents
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to which it is a party and has taken all necessary corporate or other action to
authorize the execution, delivery and performance of the Credit Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Credit Document to which it is a party and each such Credit Document constitutes
the legal, valid and binding obligation of such Person enforceable in accordance
with its terms.
6.03 No Violation. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which it is a party
nor compliance with the terms and provisions thereof, nor the consummation of
the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of the Borrower or any of its Subsidiaries
pursuant to the terms of any material indenture, mortgage, deed of trust,
agreement or other instrument to which the Borrower or any of its Subsidiaries
is a party or by which it or any of its property or assets is bound or to which
it may be subject or (iii) will violate any provision of the Certificate of
Incorporation or By-Laws (or equivalent organizational documents) of the
Borrower or any of its Subsidiaries.
6.04 Litigation. Except as set forth on Annex IV, there are no
actions, suits or proceedings pending or threatened with respect to the Borrower
or any of its Subsidiaries that are reasonably likely to have (x) a material
adverse effect on the rights or remedies of the Lenders or on the ability of any
Credit Party to perform its obligations to them hereunder and under the other
Credit Documents to which it is a party or (y) a Material Adverse Effect.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
all Loans shall be utilized by the Borrower for general corporate purposes of
the Borrower and/or its Subsidiaries (including, without limitation, payment of
fees and expenses in connection with the Transaction, the refinancing of
Indebtedness, the backing up of commercial paper issued by the Borrower and
Permitted Litigation Bonding).
(b) Neither the making of any Loan hereunder, nor the use of
the proceeds thereof, will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System. At
the time of each Credit Event, not more than 25% of the value of the assets of
the Borrower and its Subsidiaries on a consolidated basis subject to the
restrictions contained in Sections 8.02 and 8.03 will constitute Margin Stock.
Notwithstanding the foregoing provisions of this Section 6.05, no proceeds of
any Loan will be utilized to purchase any Margin Stock in a transaction, or as
part of a series of transactions, the result of which is the ownership by the
Borrower and/or its Subsidiaries of 5% or more of the capital stock of a
corporation unless the Board of Directors of such corporation has approved such
transaction prior to any public announcement of the purchase, or the intent to
purchase, any such Margin Stock.
6.06 Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to
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authorize or is required in connection with (i) the execution, delivery and
performance of any Credit Document or (ii) the legality, validity, binding
effect or enforceability of any Credit Document.
6.07 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Credit Parties or any of their Subsidiaries in writing to any Senior
Managing Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Persons in writing to any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. The projections and pro
forma financial information contained in such materials were based on good faith
estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
6.09 Financial Condition; Financial Statements. The
consolidated balance sheets of the Borrower and its Subsidiaries, at December
31, 1998, at December 31, 1999, at December 31, 2000 and at December 31, 2001
and the related consolidated statements of income and cash flows (and retained
earnings) for the fiscal years ended as of said dates, which statements have
been examined by Deloitte & Touche LLP (in the case of the financial statements
for the fiscal years ended December 31, 1998 and December 31, 1999) and KPMG LLP
(in the case of the financial statements for the fiscal years ended December 31,
2000 and December 31, 2001), each independent certified public accountants, who
delivered an unqualified opinion in respect of the financial statements examined
by them, copies of which have heretofore been furnished to each Lender, present
fairly the consolidated financial position of the Borrower at the dates of said
statements and the results of operations for the periods covered thereby. All
such financial statements have been prepared in accordance with GAAP
consistently applied, except to the extent provided in the notes to said
financial statements. Since December 31, 2001, nothing has occurred which has
had a Material Adverse Effect.
6.10 Tax Returns and Payments. Each of the Borrower and its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to the date hereof.
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6.11 Compliance with ERISA. Except to the extent that all
events described in the following clauses of this sentence and then in existence
would not, in the aggregate, be likely to have a Material Adverse Effect, each
Plan is in substantial compliance with ERISA and the Code; no Reportable Event
has occurred with respect to any Plan; no Plan is insolvent or in
reorganization, no Plan has an Unfunded Current Liability, and no Plan has an
accumulated or waived funding deficiency or permitted decreases in its funding
standard account within the meaning of Section 412 of the Code; neither the
Borrower, any Subsidiary nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of
the Code; no proceedings have been instituted to terminate any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code. With respect to Plans that are
multi-employer plans (within the meaning of Section 3(37) of ERISA) and Plans
which are not currently maintained or contributed to by the Borrower, any
Subsidiary or any ERISA Affiliate, the representations and warranties in this
Section are made to the best knowledge of the Borrower.
6.12 Subsidiaries. Annex V hereto lists each Material
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein), in each case existing on the Second Restatement Effective
Date. All ownership percentages referred to in Annex V are calculated without
regard to directors' or nominees' qualifying shares.
6.13 Patents, etc. The Borrower and each of its Subsidiaries
have obtained all material patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their respective businesses as presently
conducted and as proposed to be conducted.
6.14 Pollution and Other Regulations. The Borrower and each of
its Subsidiaries are in material compliance with all material laws and
regulations relating to pollution and environmental control, equal employment
opportunity and employee safety in all domestic jurisdictions in which the
Borrower and each of its Subsidiaries is presently doing business, and the
Borrower will comply and cause each of its Subsidiaries to comply with all such
laws and regulations which may be imposed in the future in jurisdictions in
which the Borrower or such Subsidiary may then be doing business other than in
each case those the non-compliance with which would not have a material adverse
effect on the business, assets, properties or financial condition of the
Borrower and its Subsidiaries taken as a whole.
6.15 Properties. The Borrower and each of its Subsidiaries
have good title to all properties that are necessary for the operation of their
respective businesses as presently conducted and as proposed to be conducted,
free and clear of all Liens, other than as permitted by this Agreement.
SECTION 7. Affirmative Covenants. The Borrower hereby
covenants and agrees that on the Second Restatement Effective Date and
thereafter, for so long as this Agreement is in effect and until the Commitments
and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
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7.01 Information Covenants. The Borrower will furnish to each
Lender:
(a) Annual Financial Statements. Within 100 days after the
close of each fiscal year of the Borrower, to the extent prepared to
comply with SEC requirements, a copy of the SEC Form 10-Ks filed by the
Borrower with the SEC for such fiscal year, or, if no such Form 10-K
was so filed by the Borrower for such fiscal year, the consolidated
balance sheet of the Borrower and its Subsidiaries, as at the end of
such fiscal year and the related consolidated statements of income and
of cash flows for such fiscal year, setting forth comparative
consolidated figures as of the end of and for the preceding fiscal
year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to
the scope of audit or as to the status of the Borrower or any of its
Subsidiaries as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its
regular audit of the business of the Borrower, which audit was
conducted in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge of any Default or Event
of Default which has occurred and is continuing or, if in the opinion
of such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and
in any event within 55 days after the close of each of the first three
quarterly accounting periods in each fiscal year of the Borrower to the
extent prepared to comply with SEC requirements, a copy of the SEC Form
10-Qs filed by the Borrower with the SEC for each such quarterly
period, or, if no such Form 10-Q was so filed by the Borrower with
respect to any such quarterly period, the consolidated condensed
balance sheet of the Borrower and its Subsidiaries as at the end of
such quarterly period and the related consolidated condensed statements
of income for such quarterly period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and the
related consolidated condensed statement of cash flows for the elapsed
portion of the fiscal year ended with the last day of such quarterly
period, and in each case setting forth comparative consolidated figures
for the related periods in the prior fiscal year or, in the case of
such consolidated condensed balance sheet, for the last day of the
prior fiscal year, all of which shall be certified by the Chief
Financial Officer, Controller, Chief Accounting Officer or other
Authorized Officer of the Borrower, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.01(a) and (b), a
certificate of the Chief Financial Officer, Controller, Chief
Accounting Officer or other Authorized Officer of the Borrower to the
effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof,
which certificate shall set forth the calculations required to
establish whether the Borrower and its Subsidiaries were in compliance
with the provisions of Sections 3.03(b), 8.02(c), 8.03(g), 8.03(h),
8.03(k), 8.04(j), 8.04(l), 8.05, 8.07, 8.08 and 8.09 as at the end of
such fiscal period or year, as the case may be.
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(d) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after any senior financial or legal
officer of the Borrower obtains knowledge thereof, notice of (x) the
occurrence of any event which constitutes a Default or Event of Default
which notice shall specify the nature thereof, the period of existence
thereof and what action the Borrower proposes to take with respect
thereto and (y) any litigation or governmental proceeding pending
against or affecting the Borrower or any of its Subsidiaries which is
likely to have a material adverse effect on the business, properties,
assets, financial condition or prospects of the Borrower and its
Subsidiaries taken as a whole or the ability of any Credit Party to
perform its obligations hereunder or under any other Credit Document.
(e) Credit Rating Changes. Promptly after any senior financial
or legal officer of the Borrower obtains knowledge thereof, notice of
any change in the Applicable Credit Rating assigned by either Rating
Agency.
(f) Other Information. Promptly upon transmission thereof,
copies of any filings and registrations with, and reports to, the
Securities and Exchange Commission or any successor thereto (the "SEC")
by the Borrower or any of its Subsidiaries (other than amendments to
any registration statement (to the extent such registration statement,
in the form it becomes effective, is delivered to the Lenders),
exhibits to any registration statement, any registration statements on
Form S-8 and Forms 3, 4 and 5 and any annual report on Form 11-K) and
copies of all financial statements, proxy statements, notices and
reports that the Borrower or any of its Subsidiaries shall send to
analysts or the holders of any publicly issued debt of the Borrower
and/or any of its Subsidiaries in their capacity as such holders (in
each case to the extent not theretofore delivered to the Lenders
pursuant to this Agreement) and, with reasonable promptness, such other
information or documents (financial or otherwise) as any Senior
Managing Agent on its own behalf or on behalf of the Required Lenders
may reasonably request from time to time.
7.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, permit, upon reasonable notice to the
Chief Financial Officer, Controller or any other Authorized Officer of the
Borrower, officers and designated representatives of any Senior Managing Agent
or the Required Lenders to visit and inspect any of the properties or assets of
the Borrower and any of its Subsidiaries in whomsoever's possession, and to
examine the books of account of the Borrower and any of its Subsidiaries and
discuss the affairs, finances and accounts of the Borrower and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals and to such
reasonable extent as any Senior Managing Agent or the Required Lenders may
desire.
7.03 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance in
such amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice.
7.04 Payment of Taxes. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or
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levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which material penalties attach thereto,
and all lawful claims which, if unpaid, might become a Lien or charge upon any
properties of the Borrower or any of its Subsidiaries; provided, that neither
the Borrower nor any Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves (in the good faith
judgment of the management of the Borrower) with respect thereto in accordance
with GAAP.
7.05 Consolidated Corporate Franchises. The Borrower will do,
and will cause each of its Material Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence,
rights and authority; provided, that any transaction permitted by Section 8.02
will not constitute a breach of this Section 7.05.
7.06 Compliance with Statutes, etc. The Borrower will, and
will cause each Subsidiary to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls) other than
those the non-compliance with which would not have a material adverse effect on
the business, properties, assets or financial condition of the Borrower and its
Subsidiaries taken as a whole or on the ability of any Credit Party to perform
its obligations under any Credit Document to which it is party.
7.07 ERISA. As soon as possible and, in any event, within 10
days after the Borrower or any Subsidiary knows or has reason to know of the
occurrence of any of the following, the Borrower will deliver to each of the
Lenders a certificate of the Chief Financial Officer, Treasurer or Controller of
the Borrower setting forth details as to such occurrence and the action, if any,
which the Borrower, such Subsidiary or an ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, such Subsidiary, such ERISA Affiliate, the
PBGC, a Plan participant (other than notices relating to an individual
participant's benefits) or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has
previously delivered to the Lenders a certificate and notices (if any)
concerning such event pursuant to the next clause hereof), that a contributing
sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title
IV of ERISA is subject to the advance reporting requirement of PBGC Regulation
Section 4043.61 (without regard to subparagraph (b)(1) thereof), that an
accumulated funding deficiency has been incurred or an application may be or has
been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with respect
to a Plan, that a Plan which has an Unfunded Current Liability has been or may
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA, that a Plan has an Unfunded Current Liability giving rise to a lien under
ERISA or the Code, that proceedings may be or have been instituted to terminate
a Plan which has an Unfunded Current Liability, that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan, or that the Borrower, any Subsidiary or any ERISA Affiliate will or
may incur any liability (including any contingent or secondary liability) to or
on account of the termination of or withdrawal from a Plan under Section 4062,
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4063, 4064, 4069, 4201 or 4204 of ERISA or with respect to a Plan under Section
4971 or 4975 of the Code or Section 409 or 502(i) or 502(l) of ERISA. Upon
request of a Lender, the Borrower will deliver to such Lender a complete copy of
the annual report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of any notices
received by the Borrower or any Subsidiary shall be delivered to the Lenders no
later than 10 days after the later of the date such notice has been filed with
the Internal Revenue Service or the PBGC, given to Plan participants (other than
notices relating to an individual participant's benefits) or received by the
Borrower or such Subsidiary.
7.08 Good Repair. The Borrower will, and will cause each of
its Subsidiaries to, ensure that its properties and equipment used or useful in
its business in whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, and that from time
to time there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner customary for companies in
similar businesses.
7.09 End of Fiscal Years; Fiscal Quarters. The Borrower will,
for financial reporting purposes, cause (i) each of its fiscal years to end on
December 31 of each year, (ii) each of its fiscal quarters to end on March 31,
June 30, September 30 and December 31 of each year and (iii) each of the
Subsidiaries to maintain the accounting periods maintained by such Subsidiary on
the Original Effective Date, consistent with the past practice and procedures of
each such Subsidiary; provided that any of the foregoing fiscal or reporting
periods may be changed if (x) the Borrower gives the Lenders 30 days' prior
written notice of such proposed change and (y) prior to effecting such change
the Borrower and the Majority SMA shall have agreed upon adjustments, if any, to
Sections 8.05, 8.07 and 8.08 (and the definitions used therein) the sole purpose
of which shall be to give effect to the proposed change in fiscal or accounting
periods (it being understood and agreed that to the extent that the Borrower and
the Majority SMA cannot agree on appropriate adjustments to such Sections (or
that no adjustments are necessary), the proposed change may not be effected).
7.10 Competitive Bid Loan Outstandings. On the date of the
delivery by the Borrower of any Notice of Borrowing, Notice of Competitive Bid
Borrowing or Letter of Credit Request at any time when the Borrower shall have
knowledge that a mandatory prepayment is required pursuant to Section 4.02(A) of
this Agreement and, in any event, on the last Business Day of each fiscal
quarter of the Borrower, the Borrower will furnish to the Administrative Agent a
statement setting forth the aggregate outstanding principal amount of
Competitive Bid Loans at such time.
7.11 Subsidiary Guaranty; Collateral. (a) No later than 15
days after the date on which a Guaranty Event occurs, each Material Subsidiary
not then a Subsidiary Guarantor shall (i) authorize the execution of, and
execute and deliver to the Administrative Agent on behalf of the Lenders, a
Subsidiary Guaranty and (ii) cause to be delivered such opinions of counsel as
are reasonably requested by, and are reasonably satisfactory to, the Senior
Managing Agents in respect of such Subsidiary Guaranty.
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(b) No later than 15 days after the date on which a Trigger
Event occurs each Credit Party (including any Person required by Section 7.11(a)
to become a Credit Party at such time) shall (i) authorize, execute and deliver
to the Collateral Agent on behalf of the Secured Creditors pledge agreements,
security agreements and/or mortgages that are reasonably acceptable in form and
substance to the Senior Managing Agents (the "Security Documents") which create
in favor of the Collateral Agent on behalf of the Secured Creditors a pledge of
and/or a lien on substantially all of its assets with such exceptions as are
reasonably satisfactory to the Senior Managing Agents (the "Collateral") with
such priority as is provided for in the representations contained in the
respective Security Documents, provided that Xxxxxxxx Tobacco shall not be
required to grant a leasehold mortgage in the leasehold interest and rights of
Xxxxxxxx Tobacco in and to property located at the Xxxxxxx Xxxxx Xxxxxxxx
Airport, under a certain lease agreement with the Airport Commission of Forsyth
County, dated January 1, 1980, recorded in Book 1298, Page 1365, Forsyth County
Registry, and assigned and transferred to Xxxxxxxx Tobacco by its former parent
company pursuant to an Assignment of Lease, dated April 27, 1989, to the extent
the grant of a leasehold mortgage in such leasehold is prohibited by the terms
thereof, (ii) deliver in pledge thereunder all securities, notes and transfer
powers required to be delivered by the terms of the respective Security
Documents, (iii) execute and cause to be filed such financing statements and
mortgages as are required to perfect the pledges and Liens created under the
Security Documents and to obtain the priority of such perfection required by the
respective Security Documents and (iv) cause to be delivered such opinions of
counsel as are reasonably requested by, and as are reasonably satisfactory to,
the Senior Managing Agents with respect to the Security Documents and the
pledges and Liens created thereunder. Notwithstanding the foregoing, all
Collateral shall be automatically released (subject to reinstatement upon the
occurrence of a new Trigger Event) if at any time subsequent to the Credit
Parties providing the Collateral in compliance with the preceding sentence the
Applicable Credit Rating issued by each Rating Agency shall, giving effect to
such release and subject to the completion of such release, if applicable, each
be the Minimum Investment Grade Rating or higher.
SECTION 8. Negative Covenants. The Borrower hereby covenants
and agrees that on the Second Restatement Effective Date and thereafter, for so
long as this Agreement is in effect and until the Commitments and each Letter of
Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:
8.01 Changes in Business. Except as otherwise permitted by
Section 8.02, the Borrower and its Subsidiaries, taken as a whole, will not
substantively alter the character of their business from that conducted by the
Borrower and its Subsidiaries taken as a whole at the Original Execution Date.
8.02 Consolidation, Merger, Sale of Assets, etc. (a) The
Borrower will not, and will not permit any Subsidiary Guarantor and (whether or
not a Subsidiary Guarantor) any Specified Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
or sell or otherwise dispose of all or any substantial part of its property or
assets (other than inventory and equipment to the extent sold or disposed of in
the ordinary course of business) or agree to do any of the foregoing at any
future time, except that the following shall be permitted:
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(i) any other Subsidiary (including any of the Specified
Subsidiaries) may merge with, or liquidate into, Xxxxxxxx Tobacco, with
Xxxxxxxx Tobacco being the survivor thereof, or transfer all or any of
their business, properties and assets to Xxxxxxxx Tobacco;
(ii) any of FHS and GMB may merge or consolidate with each
other and all of the capital stock of FHS may be transferred to GMB;
and
(iii) Acquisition Corp. (as the surviving corporation of
the merger pursuant to the NGH Acquisition) may merge or consolidate
with any Subsidiary, so long as such merger or consolidation is not
prohibited by Section 8.02(c).
(b) The Borrower will not permit any Subsidiary to enter into
any transaction of merger or consolidation with, or to sell or otherwise dispose
of all or any substantial part of its assets, to the Borrower, provided that
Acquisition Corp. (as the surviving corporation of the merger pursuant to the
NGH Acquisition) may merge or consolidate with, or sell or otherwise dispose of
all or any substantial part of its assets, to the Borrower, so long as (i) prior
to any such transaction, Acquisition Corp. has not theretofore (x) merged or
consolidated with any other Subsidiary of the Borrower or (y) engaged in any
tobacco related business and (ii) in the case of a merger or consolidation of
Acquisition Corp. with the Borrower, the Borrower is the surviving corporation
of such merger or consolidation.
(c) The Borrower will not, and will not permit any Subsidiary
to, liquidate into, or enter into any transaction of merger or consolidation
with, or sell or otherwise dispose of any part of its properties, to any other
Subsidiary (including one formed as a result thereof) if (x) any such
transaction involves a Subsidiary Guarantor and the survivor of such merger or
consolidation or the transferee of such properties or assets is not a Subsidiary
Guarantor or (y) if a Guaranty Event has occurred and is continuing, the Person
that is the survivor of any such merger or consolidation is a Material
Subsidiary and none of the Persons so merging or consolidating were Material
Subsidiaries prior thereto, or the Person that is any such transferee is a
Material Subsidiary after giving effect thereto but was not a Material
Subsidiary prior thereto unless, in each case, either (I) the Senior Managing
Agents have consented to such transaction in writing or (II) the new Material
Subsidiary resulting becomes a Subsidiary Guarantor and executes (x) a
counterpart of the Subsidiary Guaranty and (y) if the Security Documents are in
effect at such time, such Security Documents as the Majority SMA shall
reasonably request, with, in the case of this clause (y) such actions having
been taken to perfect the pledge of, and Liens on, the stock and substantially
all of the assets of such new Subsidiary as would have been taken if such new
Subsidiary had been a Subsidiary at the time of the last Trigger Event, all to
the reasonable satisfaction of the Majority SMA, provided that (A) the Borrower
and its Subsidiaries may from time to time sell or otherwise dispose of
inventory, equipment, raw materials and other assets (other than equity
interests) to Subsidiaries of the Borrower in the ordinary course of business,
so long as (x) cash in an amount equal to at least the fair market value of the
assets so transferred (as determined in good faith by senior management of the
Borrower) is received by the respective transferor or (y) so long as no Default
or Event of Default then exists or would result therefrom, intercompany
indebtedness owing by the respective transferor to the respective transferee in
an amount equal to at least the fair market value of the assets so transferred
(as determined in good faith by senior management of the
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Borrower) is forgiven by such transferor, and (B) the Borrower and any of its
Subsidiaries may transfer or otherwise dispose of any of their respective assets
(including cash, fixed assets and intellectual property but excluding capital
stock or other equity interests of a Subsidiary Guarantor owned or held by such
Person) to any of their respective Subsidiaries not otherwise permitted by this
Section 8.02(c) above, so long as (i) no Default or Event of Default is then in
existence or would result therefrom and (ii) the aggregate amount of all such
transfers and dispositions made pursuant to this clause (B) on and after the
Second Restatement Effective Date (and pursuant to clause (A) of the proviso to
Section 8.02(c) of the First Amended and Restated Credit Agreement on and after
the First Restatement Effective Date and prior to the Second Restatement
Effective Date) (taking the fair market value (as determined in good faith by
senior management of the Borrower) of any non-cash assets so transferred or
disposed of) shall not exceed, when aggregated with the aggregate amount of all
capital contributions made by the Borrower and any of its Subsidiaries in
reliance on clause (i) of Section 8.09 (taking the fair market value (as
determined in good faith by senior management of the Borrower) of any non-cash
assets so contributed), $175,000,000.
8.03 Liens. The Borrower will not, and will not permit any
Subsidiary to, (x) create, incur, assume or suffer to exist any Lien in respect
of Indebtedness upon any property or assets of any kind (real or personal,
tangible or intangible) of the Borrower or any such Subsidiary whether now owned
or hereafter acquired or (y) assign any right to receive income as security for
the payment of Indebtedness, except:
(a) Liens encumbering customary initial deposits and margin
deposits, and other Liens incurred in the ordinary course of business
and which are within the general parameters customary in the industry,
securing obligations under Commodities Agreements;
(b) Liens securing reimbursement obligations of the Borrower
and its Subsidiaries with respect to (x) trade letters of credit
incurred in the ordinary course of business, which are to be repaid in
full not more than one year after the date originally incurred to
finance the purchase of goods by the Borrower or any of its
Subsidiaries, provided that such Liens shall attach only to documents
or other property relating to such letters of credit and the products
and proceeds thereof and (y) letters of credit incurred in the ordinary
course of business in connection with payments of foreign excise taxes
in respect of tobacco sales, provided that (i) no such letter of credit
shall have an expiry date later than six months after the date of
issuance thereof and (ii) such Liens are granted in the ordinary course
of business;
(c) Liens (x) arising pursuant to purchase money mortgages
securing Indebtedness (and any extensions, renewals or refinancings of
such Indebtedness to the extent not increasing the outstanding
principal amount thereof) representing the purchase price (or financing
of the purchase price within 180 days after the respective purchase) of
assets acquired after the Original Effective Date, provided that (i)
any such Liens attach only to the assets so purchased and (ii) the
Indebtedness (including any such permitted extensions, renewals or
refinancings) secured by any such Lien does not exceed 100%, nor is
less than 70%, of the purchase price of the property being purchased
and (y) existing on specific tangible assets at the time acquired by
the Borrower or any of its Subsidiaries or on assets of a Person at the
time such Person first becomes a Subsidiary
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(together with Liens securing any extensions, renewals or refinancings
of the Indebtedness secured thereby to the extent not increasing the
outstanding principal amount thereof), provided that (i) any such Liens
were not created at the time of or in contemplation of the acquisition
of such assets or Person by the Borrower and/or its Subsidiaries, (ii)
in the case of any such acquisition of a Person, any such Lien attaches
only to a specific tangible asset of such Person and not assets of such
Person generally and (iii) the Indebtedness secured by any such Lien
does not exceed 100% of the fair market value of the asset to which
such Lien attaches, determined at the time of the acquisition of such
asset or at the time such Person first becomes a Subsidiary, as the
case may be;
(d) Liens created pursuant to the Security Documents and the
Escrow;
(e) Liens resulting from the Borrower or Xxxxxxxx Tobacco cash
collateralizing supersedeas and other appeal bonds, or providing cash
collateral directly to courts to satisfy such courts' requirements for
a stay to appeal verdicts, orders and/or judgments, in each case to the
extent utilizing Permanent Surplus Cash;
(f) Existing Liens (and any extensions or renewals of such
Liens (to the extent included in the definition of Existing Liens) to
the extent such Liens do not attach to any additional properties and
the Indebtedness secured thereby is not increased);
(g) Liens not otherwise permitted by the foregoing clauses (a)
through (f) above or succeeding clauses (h) through (k) securing any
Indebtedness of the Borrower and/or its Subsidiaries, provided that the
aggregate principal amount of Indebtedness on a consolidated basis
secured by Liens permitted by this clause (g) shall not exceed
$100,000,000 at any time;
(h) Liens resulting from the Borrower directly cash
collateralizing PBGC Obligations and/or cash collateralizing bonds in
support of PBGC Obligations, provided that the sum of (i) the aggregate
amount of cash that collateralizes PBGC Obligations and/or bonds in
support of such PBGC Obligations plus (ii) the aggregate stated amounts
of bonds and letters of credit (including Letters of Credit) issued in
support of PBGC Obligations (but excluding any portion of the stated
amounts of such bonds or letters of credit that are cash collateralized
and thus included pursuant to preceding clause (i)) does not exceed
$150,000,000;
(i) Liens encumbering the deposits of cash and/or cash
equivalents referred to in Section 8.04(m);
(j) Liens encumbering Borrower Common Stock repurchased in
accordance with the requirements of Section 8.05(ii), (iii) or (vii),
to the extent that such Liens (x) are created for the sole purpose of
securing obligations of the Borrower to the agent brokering any such
repurchase incurred in connection with such repurchase and (y)
terminate upon the payment of such obligations; and
(k) Liens encumbering cash deposits securing obligations under
Interest Rate Agreements entered into in the ordinary course of
business by the Borrower and/or any
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Subsidiary Guarantor with any financial institution that is a Lender
(and/or an affiliate of any Lender) at the time of the entering into of
any such Interest Rate Agreement to the extent consistent with the past
practices of the Borrower and its Subsidiaries as in effect on the
Second Restatement Effective Date or with then current practices in the
industry, so long as (i) the entering into of any such Interest Rate
Agreement is a bona fide hedging activity and not for speculative
purposes and (ii) the aggregate amount of the cash pledged to secure
such obligations pursuant to this clause (k) does not exceed
$250,000,000.
8.04 Indebtedness. The Borrower will not permit any Subsidiary
to contract create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of the Subsidiary Guarantors under the
Subsidiary Guaranty;
(b) (i) Indebtedness owing by any Subsidiary Guarantor to the
Borrower or any other Subsidiary Guarantor and (ii) Indebtedness of any
Subsidiary (other than a Specified Subsidiary) (x) consisting of
Contingent Obligations in respect of, or (y) constituting reimbursement
obligations under letters of credit issued in support of, obligations
(other than Contingent Obligations) of any Subsidiary of the Borrower,
to the extent such other obligations are permitted by this Agreement
(but excluding any Contingent Obligations in respect of, or
reimbursement obligations relating to, Independent Litigation Bonds);
(c) Obligations under letters of credit described in Section
8.03(b);
(d) Indebtedness of (x) Xxxxxxxx Tobacco constituting
reimbursement obligations in respect of Independent Litigation Bonds
and (y) any Subsidiary Guarantor under, or under any guaranty of,
Permitted Currency Agreements;
(e) Obligations of any Subsidiary (other than any Specified
Subsidiary) under letters of credit incurred in the ordinary course of
business in connection with the purchase of tobacco or other products
or goods for use in the day-to-day operations of the Borrower and its
Subsidiaries consistent with the Borrower's past practices or then
current industry practices;
(f) Indebtedness secured, in whole or in part, by Liens
permitted by Section 8.03(e);
(g) Existing Debt (and any extensions, renewals or
refinancings of such Indebtedness to the extent not increasing the
outstanding principal amount thereof);
(h) Indebtedness of Subsidiary Guarantors as guarantors of (x)
the Borrower's obligations in respect of any Senior Notes, any
Refinancing Senior Notes and other Specified Debt (other than the Stub
Notes) and/or any Supported CP and (y) Xxxxxxxx Tobacco's obligations
in respect of Independent Litigation Bonds;
(i) Indebtedness of (I) Xxxxxxxx Tobacco (x) owing to X.X.
Xxxxxxxx Tobacco Co., a Delaware corporation, on the Original Effective
Date, together with any accrued or
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capitalized interest in respect thereof, (y) owing from time to time to
FHS and (z) owing from time to time to other Subsidiaries of Xxxxxxxx
Tobacco to the extent arising in the normal course of business in
connection with their cash management systems, (II) Xxxxxxxx Tobacco
owing from time to time to Acquisition Corp. and (III) Acquisition
Corp. owing from time to time to FHS, in the case of clauses (I) and
(III) above to the extent such Indebtedness is subordinated to the
obligations of Xxxxxxxx Tobacco or Acquisition Corp., as the case may
be, under the Subsidiary Guaranty pursuant to, and in accordance with
the terms of, the Intercompany Subordination Agreement;
(j) Indebtedness of any Subsidiary (other than any Specified
Subsidiary) in any manner guaranteeing or intended to guarantee,
whether directly or indirectly, any leases, dividends or other monetary
obligations of any Person in which such Subsidiary has an ownership
interest, provided that the aggregate maximum stated or determinable
amount (or, if not stated or determinable, the maximum reasonably
anticipated liability in respect of such Indebtedness as determined in
good faith by such Subsidiary) of all Indebtedness permitted pursuant
to this clause (j) shall not exceed at any time an amount in excess of
$50,000,000;
(k) Indebtedness of (i) Subsidiaries of the Borrower (other
than Xxxxxxxx Tobacco and Acquisition Corp.) owing to Xxxxxxxx Tobacco,
to the extent incurred in the ordinary course of business consistent
with past practices, (ii) Subsidiaries of the Borrower (other than
Acquisition Corp. and Xxxxxxxx Tobacco) owing to Acquisition Corp., to
the extent incurred in the ordinary course of business or for tax
planning purposes, (iii) Subsidiaries that are not Subsidiary
Guarantors or Specified Subsidiaries owing to other Subsidiaries that
are not Subsidiary Guarantors or Specified Subsidiaries, and (iv) GMB
owing to FHS and/or FHS owing to GMB;
(l) Indebtedness of Subsidiaries (other than the Specified
Subsidiaries) not otherwise permitted by the foregoing clauses (a)
through (k) and succeeding clause (m), provided that the aggregate
outstanding principal amount of Indebtedness on a consolidated basis
incurred pursuant to this clause (l) shall not exceed $100,000,000 at
any time; and
(m) Indebtedness of Acquisition Corp. evidenced by the Junior
Subordinated Debentures, so long as (i) the aggregate principal amount
thereof at any time outstanding does not exceed $101,000,000 (less the
amount of any repayments of principal thereof after the First
Restatement Effective Date) and (ii) the Junior Subordinated Debentures
shall (at all times prior to their repayment in full) remain
economically defeased by way of a deposit and pledge of cash and/or
cash equivalents with the trustee under the Debenture Indenture in
accordance with the requirements of Section 10.1(C)(a) of the Debenture
Indenture.
8.05 Limitation on Dividends. The Borrower will not, declare
or pay any dividends (other than dividends payable solely in its capital stock)
or make, declare or otherwise authorize any return of capital to its
shareholders or make, declare or otherwise authorize any other distribution,
payment or delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any
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class of its capital stock now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of such shares but not
including any convertible debt), or set aside any funds for any of the foregoing
purposes, or permit any of its Subsidiaries to purchase or otherwise acquire for
consideration any shares of any class of the capital stock of the Borrower now
or hereafter outstanding (or any options or warrants or stock appreciation
rights issued by the Borrower with respect to its capital stock) (all of the
foregoing made, declared or authorized after the Original Effective Date,
"Dividends"), provided that so long as no Event of Default then exists in the
case of clauses (i), (ii), (iii), (v), (vi) and (vii):
(i) the Borrower may issue shares of Borrower Common
Stock upon the exercise of any warrants or options or upon the
conversion or redemption of any convertible or redeemable preferred or
preference stock, and in connection with any such exercise, conversion
or redemption the Borrower may pay cash in lieu of issuing fractional
shares of Borrower Common Stock;
(ii) the Borrower may repurchase Borrower Common Stock
(and/or options or warrants in respect thereof) pursuant to, and in
accordance with the terms of, management and/or employee stock plans,
provided that the aggregate amount of cash paid in respect of all such
repurchases in any calendar year pursuant to this clause (ii) does not
exceed $20,000,000;
(iii) the Borrower may declare and pay, or otherwise pay or
make, any other Dividend, provided that, at the time it is, in the case
of a Non-Declared Dividend, paid or made and, in the case of any other
Dividend, declared or otherwise authorized, the aggregate amount of
such Dividend, when added to all Non-Declared Dividends theretofore
paid or made and any other Dividends theretofore declared or otherwise
authorized (or paid) pursuant to this Section 8.05(iii) (and clause
(iii) of Section 8.05 of the Original Credit Agreement or the First
Amended and Restated Credit Agreement), after the Original Effective
Date shall not exceed an amount equal to the sum of (x) $500,000,000
plus (y) 50% of Cumulative Adjusted Cash Net Income plus (z) the
aggregate cash proceeds (net of underwriting discounts and commissions)
received by the Borrower after the Original Effective Date from
issuances of its equity securities (provided that the aggregate amount
of such aggregate net cash proceeds received in any twelve-month period
shall be deemed not to exceed $250,000,000 for purposes of this Section
8.05(iii)), in each case determined at, in the case of a Non-Declared
Dividend, the date paid or made and, in the case of any other Dividend,
the date declared or otherwise authorized, provided that such Dividend
(other than a Dividend that is a Non-Declared Dividend) is paid within
90 days of the making of such declaration or other authorization,
provided further that Dividends may only be paid or made by the
Borrower under this clause (iii) if at the time of, in the case of a
Non-Declared Dividend, the date paid or made and, in the case of any
other Dividend, the date declared or otherwise authorized, the excess
of (i) the sum of the Total Unutilized Commitment and Permanent Surplus
Cash, in each case at such time, over (ii) the sum of (A) the amount
of, in the case of a Non-Declared Dividend, the aggregate amount of
such Non-Declared Dividend plus any other Dividends theretofore
declared or otherwise authorized but then unpaid and, in the case of
any other Dividend, the amount thereof so declared or otherwise
authorized and
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(B) the outstanding principal or face amount of Supported CP at such
time, shall equal at least $225,000,000;
(iv) the Borrower may issue and exchange shares of any
class or series of its common stock now or hereafter outstanding for
shares of any other class or series of its common stock now or
hereafter outstanding;
(v) the Borrower may, in connection with any
reclassification of its common stock and any exchange permitted by
clause (iv) above, pay cash in lieu of issuing fractional shares of any
class or series of its common stock;
(vi) the Borrower may pay or make Dividends with the
proceeds of any cash dividends or distribution received by it from
Acquisition Corp. (as the surviving corporation of the merger pursuant
to the NGH Acquisition), provided that the aggregate amount of
Dividends paid or made by the Borrower pursuant to this clause (vi)
(and clause (vi) of Section 8.05 of the First Amended and Restated
Credit Agreement on and after the First Restatement Effective Date and
prior to the Second Restatement Effective Date) does not exceed the
remainder of the Certified Acquired NGH Cash Amount less the aggregate
amount of the cash consideration paid in connection with the Specified
Acquisition; and
(vii) the Borrower may from time to time repurchase shares
of Borrower Common Stock, provided that the aggregate amount of cash
paid in respect of all such repurchases on and after the Second
Restatement Effective Date pursuant to this clause (vii) shall not
exceed $500,000,000.
8.06 Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, enter into any transaction or series of
transactions, whether or not in the ordinary course of business, with any
Affiliate (other than any Wholly-Owned Subsidiary of the Borrower) other than on
terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time
in a comparable arm's-length transaction with a Person other than an Affiliate;
provided, that the foregoing restrictions shall not apply to: (i) customary fees
paid to members of the Board of Directors of the Borrower and of its
Subsidiaries; (ii) the Distribution Agreement; and (iii) the Transaction.
8.07 Consolidated Net Worth. The Borrower will not permit
Consolidated Net Worth to be less than $6,800,000,000 at any time.
8.08 Fixed Charge Coverage Ratio. The Borrower will not permit
the ratio of (i) Adjusted Operating Income to (ii) Consolidated Fixed Charges
for any Test Period to be less than 1.10 to 1.00.
8.09 Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any transaction of merger or
consolidation with, or purchase or acquire any stock of, or any other ownership
or equity interest in, or make any capital contribution to, any other Person,
except that (i) the Borrower and any of its Subsidiaries may contribute as a
capital contribution to any other Person any assets of the Borrower or such
Subsidiary (including
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cash, fixed assets and intellectual property but excluding capital stock or
other equity interests of any Subsidiary Guarantor), so long as (x) no Default
or Event of Default is then in existence or would result therefrom and (y) the
aggregate amount of all such contributions made by the Borrower and Subsidiary
Guarantors pursuant to this clause (i) (and clause (i) of Section 8.09 of the
First Amended and Restated Credit Agreement on and after the First Restatement
Effective Date and prior to the Second Restatement Effective Date) (taking the
fair market value (as determined in good faith by senior management of the
Borrower) of any non-cash assets so contributed), when aggregated with the
aggregate amount of all transfers and dispositions made by the Borrower and any
of its Subsidiaries in reliance on clause (B) of the proviso to Section 8.02(c)
(taking the fair market value (as determined in good faith by senior management
of the Borrower) of any non-cash assets so transferred or disposed of), shall
not exceed $175,000,000, (ii) the Borrower and its Subsidiaries may acquire the
stock or other equity interests of any Person owned by a Subsidiary of the
Borrower by way of the dividend of such stock or equity interest by such
Subsidiary to the Borrower or any of its other Subsidiaries, so long as, in the
event any such stock or other equity interests are held by a Subsidiary
Guarantor immediately prior to the respective dividend, such stock or other
equity interests are held by the Borrower or another Subsidiary Guarantor after
giving effect to such dividend, (iii) any transaction described in (and
expressly permitted pursuant to) clause (i), (ii) or (iii) of Section 8.02(a) or
the proviso appearing in Section 8.02(b) and any liquidation, merger,
consolidation, sale or other disposition between or among the Borrower and any
of its Subsidiaries which may be consummated without giving rise to a violation
of Section 8.02(c) (for such purposes, however, treating said Section 8.02(c) as
if the proviso appearing in said Section were not included therein) shall be
permitted and (iv) the Borrower and its Subsidiaries may acquire the capital
stock or other equity interests of a Person that has theretofore been conducting
a business, so long as such acquisition constitutes a Permitted Investment.
8.10 No Negative Pledge. The Borrower shall not, and shall not
permit any Subsidiary to, enter into any agreement or arrangement that prohibits
or restricts (including by requiring ratable sharing of Liens) the Borrower or
any Subsidiary Guarantor from entering into the Security Documents and/or
granting any Lien in favor of the Collateral Agent for the benefit of the
Secured Creditors other than (i) any ratable sharing of Liens provisions
governing any of the New Senior Notes or the Refinancing Senior Notes, in each
case, to the extent such provisions shall be satisfied by the entering into of
the Security Documents and the granting of Liens thereunder in favor of the
Collateral Agent for the benefit of the Secured Creditors and (ii) any
prohibition created in connection with any Lien permitted by Section 8.03 to the
extent applicable only to the property subject to such Lien.
8.11 Prepayments of Indebtedness. The Borrower will not make
any voluntary or optional prepayment on or voluntary or optional redemption,
repurchase or acquisition for value of, any Qualified Stub Notes, New Senior
Notes or Refinancing Senior Notes if after giving effect thereto the aggregate
outstanding principal amount of Qualified Stub Notes, New Senior Notes and
Refinancing Senior Notes would be less than $1,000,000,000.
SECTION 9. Events of Default. Upon the occurrence of any of
the following specified events (each, an "Event of Default"):
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9.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any Unpaid Drawings or any other amounts owing hereunder or
under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
9.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.10, 7.11 or 8, or (b) default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the Borrower by any Senior Managing Agent or the Required Lenders; or
9.04 Default Under Other Agreements. The Borrower or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) in excess of $75,000,000 individually
or $150,000,000 in the aggregate, for the Borrower and its Subsidiaries, beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created or (ii) default in the observance or performance
of any agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice or lapse of time is
required), any such Indebtedness to become due prior to its stated maturity; or
(b) any such Indebtedness shall be declared to be due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default or an event of the type that constitutes an Event of
Default), prior to the stated maturity thereof; or
9.05 Bankruptcy, etc. The Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Borrower or any of its Material Subsidiaries and the
petition is not controverted within 10 days after service of notice of such case
on the Borrower or such Material Subsidiary, or is not dismissed within 60 days
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Borrower or any of its Material Subsidiaries; or the Borrower or
any of its Material Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Material
Subsidiaries; or there is commenced against the Borrower or any of its Material
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or the Borrower or any of its Material Subsidiaries is adjudicated
insolvent or bankrupt; or
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any order of relief or other order approving any such case or proceeding is
entered; or the Borrower or any of its Material Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Material Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate action is taken by the Borrower or any of
its Material Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) A single-employer plan (as defined in Section
4001 of ERISA) maintained or contributed to by any Credit Party or any of its
Subsidiaries or any ERISA Affiliate shall fail to maintain the minimum funding
standard required by Section 412 of the Code for any plan year or part thereof
or a waiver of such standard or extension of any amortization period is sought
or granted under Section 412 of the Code or shall provide security to induce the
issuance of such waiver or extension, (b) any Plan is or shall have been
terminated or the subject of termination proceedings under ERISA or an event has
occurred entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA,
(c) any Plan shall have an Unfunded Current Liability, (d) the Borrower or any
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a material
liability to or on account of a termination of or a withdrawal from a Plan under
Section 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA, (e) the Borrower or
any Subsidiary has incurred after the Original Effective Date liabilities (after
giving effect to any reserves applicable thereto and maintained on the Original
Effective Date) pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) which provide benefits to retired employees
(other than as required by Section 601 of ERISA) or employee pension benefit
plans (as defined in Section 3(2) of ERISA) (except in each case solely as a
result of a change in estimate or adjustment of liabilities existing on the
Original Effective Date upon the adoption or implementation of Financial
Accounting Statement 106), or (f) the Borrower or any Subsidiary or any ERISA
Affiliate has incurred a liability under Section 409, 502(i) or 502(l) of ERISA
or Section 4971 or 4975 of the Code; and there shall result from any such event
or events described in the preceding clauses of this Section 9.06 the imposition
of a Lien upon the assets of the Borrower or any Subsidiary, the granting of a
security interest, or a liability or a material risk of incurring a liability,
which Lien, security interest or liability would have a material adverse effect
upon the business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole; or
9.07 Subsidiary Guaranty. The Subsidiary Guaranty or any
provision thereof shall cease to be in full force or effect or any Subsidiary
Guarantor or any Person acting by or on behalf thereof shall deny or disaffirm
such Subsidiary Guarantor's obligations under the Subsidiary Guaranty or any
Subsidiary Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
the Subsidiary Guaranty and such default, if (but only if) a default of the
covenant therein not to violate the provisions of Section 7 hereof, shall
continue unremedied for a period of at least 30 days after written notice to the
Borrower from the Administrative Agent; or
9.08 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Material Subsidiaries involving a
liability of $75,000,000 or more in the case of any one such judgment or decree
and $150,000,000 or more in the aggregate for all such judgments and decrees for
the Borrower and its Material Subsidiaries (to the extent not paid or
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fully covered by insurance) and any such judgments or decrees shall not have
been vacated, discharged or stayed or bonded pending appeal within 60 days from
the entry thereof; or
9.09 Security Documents. At any time the Security Documents
are required to be in effect pursuant to Section 7.11, (a) any Security Document
shall cease to be in full force and effect, or shall cease to give the
Collateral Agent the Liens or any of the material rights, powers and privileges
purported to be created thereby in favor of the Collateral Agent, or (b) any
Credit Party shall default in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed pursuant to
any such Security Document and such default (other than a default arising from
the failure to deliver Collateral) shall continue unremedied for a period of at
least 30 days after written notice to the Borrower by the Collateral Agent; or
9.10 Special Defaults. The NGH Acquisition or the Specified
Acquisition shall not have been consummated in accordance with the requirements
of Section 8.02(a)(iv) of the First Amended and Restated Credit Agreement or
clause (B) of the proviso appearing in Section 8.02(c) of the First Amended and
Restated Credit Agreement, as the case may be, or any representation, warranty
or statement made with respect to the NGH Acquisition or the Specified
Acquisition pursuant to the First Amended and Restated Credit Agreement (or
contained in any certificate delivered pursuant thereto) shall prove to be
untrue in any material respect on the date as of which made or deemed made;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Senior
Managing Agent or any Lender to enforce its claims against the Borrower, except
as otherwise specifically provided for in this Agreement (provided that, if an
Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment, Short-Term Commitment,
Long-Term Commitment and Swingline Commitment, if any, of each Lender shall
forthwith terminate immediately and any Facility Fee theretofore accrued shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all other Obligations owing hereunder and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; (iii)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified
in Section 9.05 with respect to the Borrower, it will pay) to the Administrative
Agent at the Administrative Agent's Office such additional amounts of cash, to
be held as security for the Borrower's reimbursement obligations for Drawings
that may subsequently occur thereunder, equal to the aggregate Stated Amount of
all Letters of Credit issued and then outstanding; and/or (v) direct the
Collateral Agent to enforce any or all of the Security Documents then in effect.
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Notwithstanding anything contained in the foregoing paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to the
preceding paragraph, the Borrower shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Defaults (other than non-payment of the principal of and accrued
interest on the Loans, in each case which is due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 12.12, then
Non-Defaulting Lenders holding at least 66-2/3% of the Adjusted Total Commitment
(which Lenders shall include in any event the Majority SMA), by written notice
to the Borrower, may at their option rescind and annul the acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind the Lenders to a decision which may be
made at the election of the aforesaid percentage of the Lenders and are not
intended to benefit the Borrower and do not grant the Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the
conditions set forth herein are met.
SECTION 10. Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Absolute Rate" shall mean an interest rate (rounded to the
nearest .0001) expressed as a decimal.
"Acquisition Corp." shall mean RJR Acquisition Corp., a
Delaware corporation and shall include the surviving company of the merger of
NGH with and into Acquisition Corp. pursuant to the NGH Acquisition.
"Adjusted Operating Income" shall mean for any period (x) the
consolidated operating income of the Borrower and its Subsidiaries for such
period plus (y) the sum of the consolidated depreciation expense, consolidated
amortization expense and consolidated non-cash impairment of goodwill and
trademarks (if any) of the Borrower and its Subsidiaries for such period, all as
determined in accordance with GAAP, it being understood that the determination
of the amount specified in clauses (x) and (y) shall be made on a basis
consistent with the methodology utilized by the Borrower to determine such
amount on the Second Restatement Effective Date, provided that (i) for the
purposes of Section 8.08 only, for any Test Period during which Consolidated
Fixed Charges includes cash taxes paid as a result of any extraordinary sale of
assets, Adjusted Operating Income shall include a portion of the gross cash
proceeds received by the Borrower and its Subsidiaries as a result of such
extraordinary sale of assets equal to the percentage of such gross cash proceeds
determined by dividing the cash taxes paid during such Test Period as a result
of such sale by the aggregate cash taxes payable as a result of such sale, (ii)
for the purposes only of Section 8.08 (to the extent such acquisition resulted
in Consolidated Capital Expenditures) for any Test Period during which any
acquisition of any Person or business occurs, Adjusted Operating Income shall
give pro forma effect to such acquisition as if it occurred on the first day of
such Test Period, and (iii) for all purposes, Adjusted Operating Income shall be
adjusted by subtracting therefrom the amount of all payments made by the
Borrower and its Subsidiaries during any Test Period pursuant to any settlement
with respect to
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tobacco liability which otherwise did not reduce Adjusted Operating Income for
such period or prior periods.
"Adjusted Percentage" shall mean (x) at a time when no Lender
Default exists, for each Lender such Lender's Percentage and (y) at a time when
a Lender Default exists (i) for each Lender that is a Defaulting Lender, zero
and (ii) for each Lender that is a Non-Defaulting Lender, the percentage
determined by dividing such Lender's Commitment at such time by the Adjusted
Total Commitment at such time, it being understood that all references herein to
Commitments at a time when the Total Commitment has been terminated shall be
references to the Commitments in effect immediately prior to such termination,
provided that (A) no Lender's Adjusted Percentage shall change upon the
occurrence of a Lender Default from that in effect immediately prior to such
Lender Default if after giving effect to such Lender Default, and any repayment
of Loans at such time pursuant to Section 4.02(A) or otherwise, the sum of (i)
the aggregate outstanding principal amount of Loans plus (ii) the Letter of
Credit Outstandings exceeds the Adjusted Total Commitment, (B) the changes to
the Adjusted Percentage that would have become effective upon the occurrence of
a Lender Default but that did not become effective as a result of the preceding
clause (A) shall become effective on the first date after the occurrence of the
relevant Lender Default on which the sum of (i) the aggregate outstanding
principal amount of the Loans plus (ii) the Letter of Credit Outstandings is
equal to or less than the Adjusted Total Commitment and (C) if (i) a
Non-Defaulting Lender's Adjusted Percentage is changed pursuant to the preceding
clause (B) and (ii) any repayment of such Lender's Loans that were made during
the period commencing after the date of the relevant Lender Default and ending
on the date of such change to its Adjusted Percentage must be returned to the
Borrower as a preferential or similar payment in any Bankruptcy or similar
proceeding of the Borrower, then the change to such Non-Defaulting Lender's
Adjusted Percentage effected pursuant to said clause (B) shall be reduced to
that positive change, if any, as would have been made to its Adjusted Percentage
if (x) such repayments had not been made and (y) the maximum change to its
Adjusted Percentage would have resulted in the sum of the outstanding principal
of Revolving Loans made by such Lender plus such Lender's new Adjusted
Percentage of the outstanding principal amount of Swingline Loans and of Letter
of Credit Outstandings equaling such Lender's Commitment at such time.
"Adjusted Total Commitment" shall mean at any time the Total
Commitment less the aggregate Commitments of all Defaulting Lenders.
"Administrative Agent" shall mean JPMCB, in its capacity as
administrative agent for the Lenders hereunder, and shall include any successor
thereto appointed pursuant to Section 11.09 or the immediately succeeding
proviso; provided that, notwithstanding anything to the contrary contained in
Section 11.09, if JPMCB shall cease to constitute a Senior Managing Agent
hereunder, the remaining Senior Managing Agent or Senior Managing Agents shall
have the option to appoint one of such remaining Senior Managing Agents
(including itself, if it remains the sole Senior Managing Agent) as the
Administrative Agent.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
such other office in New York City as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
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"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 20% or more of the securities having ordinary voting power for the election
of directors of such corporation or (ii) 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 Outstandings" shall have the meaning provided in
Section 4.02(A).
"Agreement" shall mean the Original Credit Agreement as
amended and restated pursuant to the First Amended and Restated Credit Agreement
and further amended and restated pursuant to this Second Amended and Restated
Credit Agreement, as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time.
"Applicable Credit Rating" shall mean the highest rating level
(a rating level being, e.g., each of BBB-, BBB and BBB+, in the case of S&P)
assigned by each Rating Agency to any of the Long-Term Debt Issues of the
Borrower.
"Applicable Eurodollar Margin" shall mean, in respect of each
Interest Period commencing during a period set forth below, the percentage set
forth below opposite such period below:
Applicable
Period Eurodollar Margin
------ -----------------
Level II NIG Period 1.500%
Level I NIG Period 1.500%
Minimum Investment Grade Period 1.500%
Increased Investment Grade Period 1.375%
Maximum Investment Grade Period 1.250%
"Applicable Facility Fee Percentage" shall mean, at any time
during a period set forth below, the percentage set forth opposite such period
below:
Applicable
Period Fee Percentage
------ --------------
Level II NIG Period 1.500%
Level I NIG Period 1.250%
Minimum Investment Grade Period 1.000%
Increased Investment Grade Period .875%
Maximum Investment Grade Period .750%
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"Applicable Reference Rate Margin" shall mean, at any time
during a period set forth below, the percentage set forth opposite such period
below:
Applicable
Reference
Period Rate Margin
------ -----------
Level II NIG Period .500%
Level I NIG Period .500%
Minimum Investment Grade Period .500%
Increased Investment Grade Period .375%
Maximum Investment Grade Period .250%
"Approved Alternate Currency" shall mean Euros, Deutsche Marks
and Swiss Francs.
"Assignment Agreement" shall have the meaning provided in
Section 12.04(b)(A).
"Authorized Officer" shall mean any senior officer of the
Borrower designated as such in writing to the Senior Managing Agents by the
Borrower, in each case to the extent acceptable to the Majority SMA.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" shall mean, for any day, the publicly announced
prime rate on such date of JPMCB.
"Bidder" shall mean each Lender that has notified in writing
(and has not withdrawn such notice) the Administrative Agent that it desires to
participate generally in the bidding arrangements relating to Competitive Bid
Borrowings.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower Common Stock" shall mean the common stock of the
Borrower.
"Borrowing" shall mean and include (i) the incurrence of
Swingline Loans from the Swingline Lenders on a pro rata basis on a given date,
(ii) the incurrence of one Type of Loan by the Borrower from all of the Lenders
on a pro rata basis on a given date (or resulting from conversions on a given
date), having in the case of Eurodollar Loans the same Interest Period,
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provided that Reference Rate Loans incurred pursuant to Section 1.11(b) shall be
considered part of any related Borrowing of Eurodollar Loans and (iii) a
Competitive Bid Borrowing.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Lease," as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is, or is required to be, accounted for as a
capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrower or any of its Subsidiaries in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"Certified Acquired NGH Cash Amount" shall mean $1,495,385,000
(i.e., the amount of the cash held by Acquisition Corp. (immediately after
giving effect to the NGH Acquisition and the payment by Acquisition Corp. of all
obligations owing by it as described in clause (y)(II)(C) of Section 8.02(a)(iv)
of the First Amended and Restated Credit Agreement), as certified in the
officer's certificate delivered to the Administrative Agent pursuant to Section
8.02(a)(iv)(z) of the First Amended and Restated Credit Agreement).
"Change of Control" shall mean and include (a) at any time
Continuing Directors shall not constitute a majority of the Board of Directors
of the Borrower; and/or (b) any Person or group (as such term is defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), shall acquire, directly or indirectly, beneficial ownership
(within the meaning of Rule 13d-3 and 13d-5 of the Exchange Act) of 30% or more,
on a fully diluted basis, of the economic or voting interest in the Borrower's
capital stock.
"Citibank" shall mean Citibank, N.A. and any successor
corporation thereto by merger, consolidation or otherwise.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Co-Documentation Agents" shall mean Credit Lyonnais New York
Branch and Mizuho Corporate Bank, Ltd. and any successor to any such Person, by
merger, consolidation or otherwise.
"Collateral" shall have the meaning provided in Section
7.11(b).
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"Collateral Agent" shall mean the Administrative Agent acting
as Collateral Agent under the Security Documents.
"Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I hereto, as the same may
be reduced from time to time pursuant to Section 3.02, 3.03, 9 and/or
12.04(b)(A).
"Committed Loans" shall mean Revolving Loans and Swingline
Loans.
"Commodities Agreement" shall mean any forward contract,
futures contract, option contract or similar agreement or arrangement, in each
case intended to protect the Persons entering into same from fluctuations in the
price of, or shortage of supply of, commodities.
"Competitive Bid Borrowing" shall mean a Borrowing of
Competitive Bid Loans pursuant to Section 1.04 with respect to which the
Borrower has requested that the Lenders offer to make Competitive Bid Loans at
Absolute Rates.
"Competitive Bid Loans" shall have the meaning provided in
Section 1.01(D).
"Confidential Information" shall have the meaning provided in
Section 12.15.
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases but excluding any amount representing capitalized interest)
by the Borrower and its Subsidiaries during that period that, in conformity with
GAAP, are or are required to be included as additions during such period to
property, plant or equipment reflected in a consolidated balance sheet of the
Borrower and its Subsidiaries, provided that (x) except as set forth in clause
(y) below, Consolidated Capital Expenditures shall in any event include the
purchase price paid in connection with the acquisition of any Person (including
through the purchase of all of the capital stock or other ownership interests of
such Person, or through merger or consolidation with any Person but not
including any capital contribution that forms or establishes any Subsidiary)
whether or not allocable to property, plant and equipment and (y) Consolidated
Capital Expenditures shall in any event exclude (A) expenditures made in
connection with the replacement, substitution or restoration of assets (i) to
the extent financed from insurance proceeds paid on account of the loss of or
damage to the assets being replaced or restored or (ii) with awards of
compensation arising from the taking by eminent domain or condemnation of the
assets being replaced, (B) the purchase price paid by the Borrower in connection
with the NGH Acquisition, (C) the purchase price paid by the Borrower or any of
its Subsidiaries in connection with any Investment Equities and (D) the purchase
price paid by the Borrower or any of its Subsidiaries in connection with the
Specified Acquisition.
"Consolidated Cash Interest Expense" shall mean, for any
period, (x) (i) consolidated interest expense of the Borrower and its
Subsidiaries, but excluding, however, to the extent included in such
consolidated interest expense, (I) non-cash interest expense, (II) amortization
of debt issuance cost and (III) interest expense of Acquisition Corp. payable in
respect of the Junior Subordinated Debentures during such period less (ii)
consolidated cash interest income of the Borrower and its Subsidiaries, but
excluding, however, to the extent included in such consolidated interest income,
interest income of Acquisition Corp.
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receivable in respect of the cash and/or cash equivalents referred to in Section
8.04(m) plus (y) cash dividends paid on all preferred stock of the Borrower and
its Subsidiaries during such period, it being understood that the determination
of the amounts specified in clauses (x)(i)(I) and (x)(i)(II) shall be made on a
basis consistent with the methodology utilized by the Borrower to determine such
amounts on the Second Restatement Effective Date.
"Consolidated Fixed Charges" shall mean, for any period, the
sum, without duplication, of (A) the amounts for such period of (i) Consolidated
Cash Interest Expense, (ii) cash taxes paid during such period (other than (x)
any such cash taxes paid during such period as result of the International
Tobacco Sale (as defined in the Original Credit Agreement) and (y) cash taxes
during such period paid to the extent (and only to the extent) that such taxes
were due and payable solely as a result of the NGH Acquisition), and (iii)
Consolidated Capital Expenditures, all as determined on a consolidated basis for
the Borrower and its Subsidiaries in accordance with GAAP, it being understood
that the determination of the amounts specified in clause (iii) shall be made on
a basis consistent with the methodology utilized by the Borrower to determine
such amount on the Second Restatement Effective Date plus (B) all Dividends paid
by the Borrower during such period pursuant to Sections 8.05(ii), (iii) and (v).
"Consolidated Net Worth" shall mean, as at any date of
determination, the stockholders' equity of the Borrower determined in accordance
with GAAP and as would be reflected on a consolidated balance sheet of the
Borrower and its Subsidiaries only prepared as of such date (it being understood
that determinations of such amounts shall be made on a basis consistent with the
methodology utilized by the Borrower to determine such amounts on the Second
Restatement Effective Date); provided that, notwithstanding the foregoing (and
(in the case of clause (i) below) notwithstanding any differing treatment by
GAAP of the assets acquired by the Borrower pursuant to the NGH Acquisition),
Consolidated Net Worth as otherwise determined above shall be adjusted by adding
thereto (i) an amount equal to the remainder of (x) the Certified Acquired NGH
Cash Amount less (y) the amount of cash expended by the Borrower to pay
Dividends in reliance on Section 8.05(vi) (and Section 8.05(vi) of the First
Amended and Restated Credit Agreement) less (z) the amount of the increase in
the stockholders' equity of the Borrower resulting from the NGH Acquisition as
of such date, as determined in accordance with GAAP and as would be reflected on
a consolidated balance sheet of the Borrower and its Subsidiaries prepared as of
such date and (ii) the consolidated non-cash impairment of goodwill and
trademarks (if any) of the Borrower and its Subsidiaries for the period
commencing on January 1, 2002 and ending on the respective date of determination
(as determined on a basis consistent with the methodology utilized by the
Borrower to the determine the amount of such impairment on the Second
Restatement Effective Date).
"Contingent Obligations" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other monetary obligations including
reimbursement obligations in respect of litigation bonds (the "primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (a) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (c) to purchase
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property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
lesser of (x) the maximum stated or determinable amount of such Contingent
Obligation and (y) the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Director" shall mean, at any date, an individual
(x) who is a member of the Board of Directors of the Borrower on the Original
Effective Date, (y) who, as at such date, has been a member of such Board of
Directors for at least the twelve preceding months, or (z) who has been
nominated to be a member of such Board of Directors by a majority of the other
Continuing Directors then in office.
"Continuing Lender" shall mean, at any time, (i) each Lender
which has a Maturity Date which is the Facility Maturity Date and (ii) each
Lender which has then consented to the extension of its then Final Maturity Date
to the newly proposed Facility Maturity Date pursuant to Section 1.14 on or
prior to the respective first Response Date in circumstances where Continuing
Lenders (as defined in preceding clause (i)) holding at least a majority of the
Commitments have not consented to an extension of the Facility Maturity Date on
or prior to such date.
"Credit Documents" shall mean this Agreement, the Notes, the
Subsidiary Guaranty, the Intercompany Subordination Agreement and, once executed
and delivered and in effect, the Security Documents and any subordination
agreement entered into in order to comply with the requirements of clause (x)(v)
of the definition of Specified Debt.
"Credit Event" shall mean and include the making of a Loan
and/or the issuance of a Letter of Credit.
"Credit Lyonnais" shall mean Credit Lyonnais New York Branch
and any successor corporation thereto by merger, consolidation or otherwise.
"Credit Party" shall mean each of the Borrower and each
Subsidiary Guarantor.
"Credit Rating" shall mean (i) the Applicable Credit Rating
assigned by each Rating Agency, if such Applicable Credit Ratings are the same
or (ii) if the Applicable Credit Ratings assigned by the Rating Agencies differ,
the lower of the Applicable Credit Ratings assigned by the Rating Agencies.
"CSFB" shall mean Credit Suisse First Boston and any successor
corporation thereto by merger, consolidation or otherwise.
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"Cumulative Adjusted Cash Net Income" shall mean, at any time for any
determination thereof, the sum of (i) consolidated net income of the Borrower
and its Subsidiaries, determined in accordance with GAAP, for the period (taken
as one accounting period) commencing July 1, 1999 and ending on the last day of
the last fiscal quarter of the Borrower then ended plus (ii) all losses from
debt retirement deducted in determining such consolidated net income of the
Borrower and its Subsidiaries for the period referred to in clause (i) above
plus (iii) all cash dividends actually received from NHC during such period to
the extent not included in clause (i) above plus (iv) all trademark and
goodwill amortization and all non-cash impairments of goodwill and trademarks
(if any), in each deducted in determining such consolidated net income, as the
same may be reduced by any tax benefit relating thereto included in determining
such consolidated net income for such period.
"Currency Agreement" shall mean any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement designed to protect the Persons entering into same
against fluctuations in currency values.
"Debenture Indenture" shall mean that certain Second Supplemental
Indenture, dated as of September 16, 1998, between Acquisition Corp. and The
Bank of New York, as trustee, supplemental to that certain Indenture, dated as
of September 21, 1995, among Acquisition Corp. and The Bank of New York, as
trustee.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default other than an
Event of Default under Section 9.08.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Designated Issuers" shall mean JPMCB, Citibank, Credit Lyonnais and
CSFB, in each case, so long as such entity remains a Lender with a Commitment
hereunder.
"Distribution Agreement" shall mean the Distribution Agreement, among
RJR Nabisco Holdings Corp., the Borrower and Xxxxxxxx Tobacco in the form of
the draft delivered to, and found acceptable by, the Original Senior Managing
Agents prior to the Original Effective Date, as the same may be changed,
modified or amended with the consent of the Senior Managing Agents.
"Dividends" shall have the meaning provided in Section 8.05.
"Documentation Agents" shall mean The Bank of New York, The Bank of
Nova Scotia and Xxxxxx Commercial Paper Inc. and any successor to any such
Person, by merger, consolidation or otherwise.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Eligible Transferee" shall mean and include a commercial Lender,
financial institution or other "accredited investor" (as defined in SEC
Regulation D); provided that
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Eligible Transferee shall not include any Person
(or any Affiliate thereof) who competes with the Borrower and its Subsidiaries
in the tobacco business.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower, any Subsidiary or any Credit Party
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Escrow" shall have the meaning provided in the definition of
Specified Debt.
"Eurodollar Loans" shall mean each Revolving Loan bearing interest at
the rates provided in Section 1.09(b).
"Eurodollar Rate" shall mean, with respect to each day during each
Interest Period for a Eurodollar Loan, the rate of interest determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the "Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the absence of such
agreement, the "Eurodollar Rate" shall instead be the rate per annum announced
by the Administrative Agent as the rate at which the Administrative Agent is
offered Dollar deposits at or about 10:00 A.M., New York time, two Business
Days prior to the beginning of such Interest Period, in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"Event of Default" shall have the meaning provided in Section 9.
"Existing Debt" shall mean the Indebtedness of the Borrower and its
Subsidiaries outstanding on the Original Effective Date and set forth in Annex
VII, provided that such Indebtedness shall not exceed $200,000,000 in aggregate
outstanding principal amount.
"Existing Letter of Credit" shall have the meaning provided in Section
2.01(c).
"Existing Liens" shall mean the Liens on the assets and properties of
the Borrower and its Subsidiaries outstanding on the Original Effective Date
and set forth in Annex VI, provided that the Indebtedness secured by all such
Liens shall not have exceeded $20,000,000 in aggregate outstanding principal
amount.
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"Expected Total Commitment" shall mean, at any time of determination
with respect to any future date, the Adjusted Total Commitment in effect at
such time of determination less the aggregate Commitments of all Non-Defaulting
Lenders with a Maturity Date prior to such future date.
"Extension Date" shall mean November 18, 2003.
"Facility Fee" shall have the meaning provided in Section 3.01(a).
"Facility Maturity Date" shall mean November 18, 2004, as such date
may be extended pursuant to Section 1.14.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"FHS" shall mean FHS, Inc., a Delaware corporation and any successor
thereto by merger, consolidation, reincorporation or otherwise.
"Final Maturity Date" of any Lender, as at any date of determination,
shall mean the latest Maturity Date of such Lender at such time.
"First Amended and Restated Credit Agreement" shall have the meaning
provided in the first recital of this Agreement.
"First Maturity Date" of any Lender, as at any date of determination,
shall mean the earliest Maturity Date of such Lender at such time.
"First Restatement Effective Date" shall mean the Restatement Effective
Date under, and as defined in, the First Amended and Restated Credit Agreement.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood
and agreed that determinations in accordance with GAAP for purposes of Section
8, including defined terms as used therein, shall be made pursuant to Section
12.07(a).
"GMB" shall mean GMB, Inc., a North Carolina corporation.
"Government Acts" shall have the meaning provided in Section 2.06(a).
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"Granting Lender" shall have the meaning provided in Section 12.04.
"Guaranteed L/C Obligations" shall mean the reimbursement obligations
of the Borrower in respect of letters of credit (other than Letters of Credit)
issued for its account, to the extent such reimbursement obligations are
guaranteed by any Subsidiary Guarantor.
"Guaranty Event" shall mean that the Applicable Credit Rating issued
by at least one Rating Agency is at least one level below the Minimum
Investment Grade Rating.
"Hedging Agreements" shall mean and include Commodities Agreements,
Currency Agreements and Interest Rate Agreements and all other similar hedging
arrangements.
"Increased Investment Grade Period" shall mean any period during which
the Credit Rating at all times is the Increased Investment Grade Rating.
"Increased Investment Grade Rating" shall mean the rating assigned by
each Rating Agency which is one rating level above the Minimum Investment Grade
Rating, it being understood that as of the date of this Agreement the
"Increased Investment Grade Rating" of S&P is BBB and the "Increased Investment
Grade Rating" of Xxxxx'x is Baa2.
"Indebtedness" of any Person shall mean (i) all indebtedness of such
Person for borrowed money, (ii) the deferred purchase price of assets or
services which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person, (iii) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder until reimbursed in full, (iv) the stated amount of all
litigation bonds issued for the account of such Person and, without
duplication, all payments made thereunder until reimbursed in full, (v) all
Indebtedness of a second Person secured by any Lien on any property owned by
such first Person, whether or not such Indebtedness has been assumed, (vi) all
Capitalized Lease Obligations of such Person, (vii) all obligations of such
Person to pay a specified purchase price for goods or services whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (viii) all
obligations of such Person under Hedging Agreements and (ix) all Contingent
Obligations of such Person, provided that Indebtedness shall not include (x)
trade payables and accrued expenses, in each case arising in the ordinary
course of business and (y) any obligation of the Borrower or any Subsidiary
thereof to purchase tobacco and/or other products, services and produce
utilized in its business pursuant to agreements entered into in the ordinary
course of business on a basis consistent with the Borrower's past practices or
then current industry practices; and provided further, that (a) for the
purposes of Section 9.04, the amount of Indebtedness represented by any Hedging
Agreement shall be at any time the unrealized net loss position, if any, of the
Borrower and/or its Subsidiaries thereunder on a marked-to-market basis
determined no more than one month prior to such time and (b) for the purposes
of determining the Indebtedness permitted to be secured pursuant to Section
8.03(g) or outstanding under Section 8.04(l), the amount of Indebtedness
included in such determination that is attributable to all Hedging Agreements
secured or permitted thereunder, as the case may be, shall be an amount equal
to the Net Termination Value, if any, of all such Hedging Agreements (less, in
the case of any determination of Indebtedness permitted to be outstanding under
Section 8.04(l) only, the aggregate amount of cash and cash equivalents pledged
to secure
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obligations under all such Hedging Agreements pursuant to customary cash
collateral arrangements).
"Independent Litigation Bond" shall mean any surety bond, judgment
bond or other bond or insurance policy issued for bonding litigation judgments
for appeal, other than any such bond or insurance policy that has been fully
cash collateralized (to the satisfaction of the Majority SMA) by the Borrower
or Xxxxxxxx Tobacco or which is supported by Letters of Credit issued hereunder
in the full stated amount of such bond or insurance policy.
"Intercompany Subordination Agreement" shall have the meaning provided
in Section 5.01K.
"Interest Period" shall mean, with respect to any Loan, the interest
period applicable thereto, as determined pursuant to Section 1.10.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
futures contract, interest rate option contract or other similar agreement or
arrangement.
"Investment Equities" shall mean and include (x) equity securities (i)
of any entity in which the Borrower and its Subsidiaries do not collectively
own more than 5% of the outstanding equity securities of such entity, (ii)
which are listed and regularly traded on a nationally recognized U.S. stock
exchange or market and (iii) which are not restricted as to resale by the
Borrower or its Subsidiaries (whether by contract, law or otherwise) and (y)
preferred stock of any investment vehicle owned by the Borrower or any of its
Subsidiaries, so long as (i) such investment vehicle invests solely in debt
securities and (ii) the aggregate amount of cash used to acquire such preferred
stock after the Original Effective Date does not exceed $15,000,000.
"JPMCB" shall mean JPMorgan Chase Bank and any successor corporation
thereto by merger, consolidation or otherwise.
"Junior Subordinated Debentures" shall mean Acquisition Corp.'s 9-1/2%
Junior Subordinated Debentures due 2047, issued pursuant to the Debenture
Indenture.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.03(c) or (ii) a
Lender having notified any Senior Managing Agent and/or the Borrower that it
does not intend to comply with its obligations under Section 1.01(A) or 1.01(C)
or under Section 2.03(c), in the case of either (i) or (ii) as a result of the
appointment of a receiver or conservator with respect to such Lender at the
direction or request of any regulatory agency or authority.
"Letter of Credit" shall mean each standby letter of credit issued
pursuant to Section 2.01.
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"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean and include (i) each of the
Designated Issuers and (ii) each other Lender requested by the Borrower to
issue Letters of Credit to the extent consented to by such Lender.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of
all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02.
"Level I NIG Period" shall mean any period during which the Credit
Rating is at all times the Level I NIG Rating.
"Level I NIG Rating" shall mean the rating assigned by each Rating
Agency which is one level below the Minimum Investment Grade Rating, it being
understood that as of the Second Restatement Effective Date the "Level I NIG
Rating" of S&P is BB+ and the "Level I NIG Rating" of Xxxxx'x is Ba1.
"Level II NIG Period" shall mean any period during which the Credit
Rating is at all times below the Level I NIG Rating.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement (other than
customary negative pledge clauses) to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the nature
thereof).
"Loan" shall mean any Competitive Bid Loan, Revolving Loan or
Swingline Loan.
"Long-Term Debt Issues" shall mean, with respect to the Borrower, each
issuance of long-term senior debt of the Borrower which ranks on a parity, as
to payment and security, with the Loans.
"Long-Term Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name under the heading "Long-Term
Commitment" in Annex I hereto, as the same may be reduced from time to time
pursuant to Section 3.02, 3.03, 9 and/or 12.04(b)(A).
"Majority SMA" shall mean, at any time, at least one-half in number of
the Senior Managing Agents.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(C).
"Margin Stock" shall have the meaning provided in Regulation U.
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"Material Adverse Effect" shall mean (i) a material adverse effect on
the operations, business, property, assets or financial condition of the
Borrower and its Subsidiaries taken as a whole and/or (ii) in the case of
Section 5.01G and Section 6.04, a material adverse effect on the prospects of
the Borrower and its Subsidiaries taken as a whole, provided that (w) neither
the existence of the Permitted Obligations described in clause (ix) of the
definition thereof nor the issuance of Letters of Credit to support such
Permitted Obligations shall constitute a Material Adverse Effect, (x) the
existence of any action, suit, proceeding or inquiry or the rendering of any
verdict or entry of any order, injunction or judgment thereunder will not have
a Material Adverse Effect, or a material adverse effect on the rights or
remedies of the Lenders or the ability of any Credit Party to perform its
obligations to the Lenders hereunder or under any other Credit Documents to
which it is party, unless such action, suit, proceeding or verdict, order,
injunction and/or judgment has also been designated in writing by the Required
Lenders as having such a Material Adverse Effect or material adverse effect, as
the case may be, (y) the existence of, or the rendering of any verdict or entry
of any order, injunction or judgment in, any action, suit, proceeding or
inquiry listed on Annex IV will not have a Material Adverse Effect for purposes
of Section 5.01G and Section 6.04 and (z) (I) the existence of, or the
rendering of, any verdict or entry of any order, injunction or judgment that in
each case can be stayed pending appeal (but only for so long as such stay can
still be obtained) or that is stayed pending appeal and (II) the posting of a
supersedeas or other appeal bond in respect of any verdict, order or judgment
shall not, in each case, in and of itself have a Material Adverse Effect for
purposes of Section 5.01F or Section 6.09, even if such verdict, order or
judgment could be viewed as having a material adverse effect on future
litigation prospects, unless such verdict, order or judgment results in an
actual material adverse effect on the operations, business, property, assets or
financial condition of the Borrower and its Subsidiaries taken as a whole.
"Material Subsidiary" shall mean and include Xxxxxxxx Tobacco,
Acquisition Corp., each of the Specified Subsidiaries and each other Subsidiary
(including any Person first becoming a Subsidiary upon consummation of a
Permitted Investment) to the extent that (x) the aggregate book value of the
assets of such other Subsidiary, determined on a consolidating basis, is equal
to or more than $100,000,000 or (y) the net sales of such other Subsidiary
during its then most recently ended fiscal year, determined on a consolidating
basis, were equal to or more than $75,000,000, provided that such net sales
shall be determined on a pro forma basis for the 12 months last ended when
determining whether any Person that is the survivor of any merger or
consolidation or that is the transferee of any property or assets from other
Subsidiaries of the Borrower is a Material Subsidiary.
"Maturity Date" of any Lender shall mean (i) in the case of a
Non-Extending Lender, with respect to the Commitment of, and outstanding
Revolving Loans made by, such Non-Extending Lender, May 19, 2003, (ii) in the
case of any Lender other than a Non-Extending Lender, with respect to the
Short-Term Commitment (if any) of, and related outstanding Revolving Loans made
by, such Lender, May 19, 2003 and (iii) in the case of any Lender other than a
Non-Extending Lender, with respect to the Long-Term Commitment of, and related
outstanding Revolving Loans made by, such Lender, November 18, 2004, as such
date may be extended for such Lender pursuant to Section 1.14.
"Maximum Investment Grade Period" shall mean any period during which
the Credit Rating is at all times above the Increased Investment Grade Rating.
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"Minimum Borrowing Amount" shall mean (i) with respect to a Borrowing
of Revolving Loans, $10,000,000 and (ii) with respect to a Borrowing of
Swingline Loans, $5,000,000.
"Minimum Investment Grade Period" shall mean any period during which
the Credit Rating is at all times the Minimum Investment Grade Rating.
"Minimum Investment Grade Rating" shall mean the lowest rating level
established as investment grade by each Rating Agency; it being understood
that, as of the Second Restatement Effective Date, the "Minimum Investment
Grade Rating" of S&P is BBB- and the "Minimum Investment Grade Rating" of
Xxxxx'x is Baa3.
"Mizuho" shall mean Mizuho Corporate Bank, Ltd. and any successor
corporation thereto by merger, consolidation or otherwise.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor
corporation thereto.
"Net Termination Value" shall mean at any time, with respect to all
Hedging Agreements for which a Net Termination Value is being determined, the
excess, if positive, of (i) the aggregate of the unrealized net loss position
of the Borrower and/or its Subsidiaries under each of such Hedging Agreements
on a marked-to-market basis determined no more than one month prior to such
time less (ii) the aggregate of the unrealized net gain position of the
Borrower and/or its Subsidiaries under each of such Hedging Agreements on a
marked-to-market basis determined no more than one month prior to such time.
"New Senior Notes" shall mean senior notes of the Borrower issued
pursuant to that certain Indenture, dated as of May 15, 1999, among the
Borrower, as issuer, Xxxxxxxx Tobacco, as guarantor, and the Bank of New York,
as trustee, as the same may be amended, modified and/or supplemented from time
to time on terms reasonably satisfactory to the Senior Managing Agents
"NGH" shall mean Nabisco Group Holdings Corp., a Delaware corporation.
"NGH Acquisition" shall mean the Borrower's acquisition of all of the
capital stock of NGH for aggregate cash consideration of approximately
$9,800,000,000 by way of a one-step merger of NGH with Acquisition Corp.,
pursuant to, and in accordance with the terms of, the NGH Merger Agreement,
with Acquisition Corp. as the surviving corporation of such merger.
"NGH Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of June 25, 2000, among the Borrower, NGH and Acquisition Corp., as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"NHC" shall mean Nabisco Holdings Corp., a Delaware corporation.
"Non-Continuing Lender" shall mean, at any time, each Lender which is
not a Continuing Lender at such time.
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"Non-Declared Dividend" shall mean and include, as to any Person, (i)
the redemption, retirement, purchase, or other acquisition, directly or
indirectly, for a consideration, of any shares of any class of its capital
stock or of any other equity interests of such Person outstanding on the
Original Effective Date or thereafter (or any warrants for or options or stock
or similar appreciation rights in respect of any such shares or equity
interests but not including any convertible debt) or the setting aside of any
funds for any of the foregoing purposes and (ii) the making or payment of any
other Dividend on or after the Original Effective Date by such Person which
does not require or involve a declaration or authorization by such Person.
"Non-Defaulting Lender" shall mean and include each Lender other than
a Defaulting Lender.
"Non-Extending Lender" shall mean, at any time, each Lender which does
not have a Long-Term Commitment at such time (or, if the Total Commitment has
been terminated, did not have a Long-Term Commitment immediately prior to such
termination).
"Note" shall have the meaning provided in Section 1.06(a).
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Competitive Bid Borrowing" shall have the meaning provided
in Section 1.04(a).
"Notice of Conversion" shall have the meaning provided in Section
1.07.
"Notifying SL Lender" shall have the meaning provided in Section
1.01(C).
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any Senior Managing Agent, the Administrative Agent or any Lender pursuant to
the terms of this Agreement or any other Credit Document.
"Original Credit Agreement" shall mean the Credit Agreement, dated as
of May 7, 1999, among the Borrower and certain financial institutions, as in
effect on the First Restatement Effective Date (immediately prior to giving
effect thereto).
"Original Effective Date" shall mean the "Closing Date" under, and as
defined in, the Original Credit Agreement.
"Original Execution Date" shall mean the "Execution Date" under, and
as defined in, the Original Credit Agreement.
"Original Senior Managing Agents" shall mean the "Senior Managing
Agents", as such term is defined in the Original Credit Agreement.
"Participant" shall have the meaning provided in Section 2.03(a).
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"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"PBGC Obligations" shall mean the obligations imposed by the PBGC on
the Borrower and its Subsidiaries in connection with the Transactions (as
defined in the Original Credit Agreement) pursuant to that certain Agreement,
dated as of May 20, 1999 and amended as of June 14, 1999, by and among the
PBGC, NGH and the Borrower.
"Percentage" shall mean, at any time, for each Lender, the percentage
obtained by dividing such Lender's Commitment at such time by the Total
Commitment at such time, provided that at any time when the Total Commitment
shall have been terminated, each Lender's Percentage shall be the percentage
obtained by dividing such Lender's outstanding Revolving Loans at such time by
the aggregate outstanding Revolving Loans of all Lenders at such time.
"Permanent Surplus Cash" shall mean cash on hand and cash equivalents
(including marketable securities) at the Borrower and its Domestic Subsidiaries
that (x) has not been designated to be used to pay income, excise or other
taxes or to make settlement payments in respect of tobacco liability or (y) is
not on deposit in the Escrow, provided that the lesser of (i) $100,000,000 and
(ii) the total amount of cash on hand in the cash management systems of the
Borrower and its Domestic Subsidiaries, shall be excluded from Permanent
Surplus Cash.
"Permitted Currency Agreement" shall mean any Currency Agreement
entered into in the ordinary course of business by the Borrower and/or any
Subsidiary Guarantor with any Lender or Lenders (and/or their affiliates) to
the extent consistent with the practices of the Borrower and its Subsidiaries
prior to the Original Effective Date or with then current practices in the
industry and so long as the entering into of any such Currency Agreement is a
bona fide hedging activity and not for speculative purposes.
"Permitted Investment" shall mean the acquisition by the Borrower or
any of its Subsidiaries of the capital stock or other equity interests of a
Person that has theretofore been conducting a business, to the extent that (i)
all or substantially all of the purchase price therefor would constitute
Consolidated Capital Expenditures, (ii) after giving effect to such
acquisition, the character of the business of the Borrower and its Subsidiaries
taken as a whole has not been substantially altered from that conducted by the
Borrower and its Subsidiaries taken as a whole on the Original Execution Date
and (iii) such Person shall not be a Material Subsidiary after giving effect to
such acquisition, unless such acquisition has been consented to in writing by
the Senior Managing Agents or such Person becomes a Subsidiary Guarantor upon
the consummation of such acquisition and takes all of the actions specified in
clause (y)(II) of Section 8.02(c).
"Permitted Litigation Bonding" shall mean the making of deposits with
the proceeds of Loans and/or the issuance of Letters of Credit, in each case
for the purposes of bonding litigation judgments entered against any Credit
Party after the First Restatement Effective Date, provided that, at the time of
the making of any such Loan or issuance of any such Letter of Credit, and after
giving effect to any usage by the Credit Parties of Permanent Surplus Cash to
effect such bonding of litigation judgments, the amount of Permanent Surplus
Cash shall be zero, provided further, however, that, in the event a bonding
company requires its bond to be
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supported by a letter of credit instead of cash, Letters of Credit will be
available for bonding litigation judgments before all such Permanent Surplus
Cash has been utilized for such purpose, if and only if the Letters of Credit
so issued are cash collateralized with the Permanent Surplus Cash otherwise
required to be used for such purpose pursuant to cash collateral arrangements
in form and substance satisfactory to the Majority SMA.
"Permitted Obligations" shall mean and include obligations (i) to pay
taxes, (ii) to pay import duties, to post customs bonds and otherwise in
connection with customs and trade laws, (iii) to purchase equipment or fixtures
and otherwise in connection with capital expenditures, (iv) in connection with
the importation or purchase of tobacco or other products or goods for use in
the day-to-day operations of the Borrower its Subsidiaries consistent with the
Borrower's practices in effect prior to the Original Effective Date or with
then current practices in the industry, (v) to make utility payments, (vi) in
connection with worker's compensation obligations or other employee disability
obligations, (vii) to provide credit support for any of the foregoing, (viii)
in respect of employee loans made in connection with transfers, (ix) to provide
credit support for suppliers and distributors in the ordinary course of
business, (ix) imposed by the PBGC in connection with the Transactions (as
defined in the Original Credit Agreement), provided that the aggregate Stated
Amount of the Letter of Credit issued in connection with such PBGC Obligations,
when aggregated with the sum of (x) the aggregate amount of cash that
collateralizes PBGC Obligations and/or bonds in support of such PBGC
Obligations plus (y) the aggregate stated amounts of bonds and any other
letters of credit issued in support of PBGC Obligations (but excluding any
portion of the stated amounts of bonds or other letters of credit that are cash
collateralized pursuant to preceding clause (x)), shall not exceed $150,000,000
and (x) to support Indebtedness supported by Existing Letters of Credit on the
Second Restatement Effective Date.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as defined
in Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribution of), or at any time during the five
calendar years preceding the date of this Agreement was maintained or
contributed to by (or to which there is an obligation to contribution of), the
Borrower, any Subsidiary of the Borrower or an ERISA Affiliate.
"Projections" shall have the meaning provided in Section 5.01I.
"Qualified Stub Notes" shall mean Stub Notes with no scheduled
principal payment due prior to the Facility Maturity Date.
"Rating Agency" shall mean each of S&P and Xxxxx'x.
"Reference Rate" shall mean, at any time, the higher of (x) the rate
which is 1/2 of 1% in excess of the Federal Funds Rate and (y) the Base Rate as
in effect from time to time.
"Reference Rate Loan" shall mean each Revolving Loan or Swingline Loan
bearing interest at the rates provided in Section 1.09(a).
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"Refinancing Senior Notes" shall mean, as to any outstanding New
Senior Notes with a specified maturity date (and any senior notes with a
specified maturity date hereafter issued in accordance with this definition to
"refinance" any New Senior Notes or any senior notes issued in accordance with
this definition), senior notes (x) all of the terms and conditions of which
(and of the indenture governing the same) are identical to (or, from the
perspective of the Lenders, more favorable than) those applicable to such New
Senior Notes (or such refinancing senior notes, as the case may be) (and the
indenture governing the same) and (y) issued at any time during the 18-month
period prior to the specified maturity date of such New Senior Notes (or such
refinancing senior notes, as the case may be) in an aggregate principal amount
not to exceed the aggregate principal amount of such New Senior Notes (or such
refinancing senior notes, as the case may be) maturing on such specified
maturity date; provided that the Borrower may, at its election, issue
additional such senior notes during any such 18-month period prior to the
respective maturity date of any such issuance of New Senior Notes (or
refinancing senior notes, as the case may be), so long as the aggregate
principal amount of all such additional notes issued in reliance on this
proviso does not exceed $250.0 million.
"Register" shall have the meaning provided in Section 1.06(d).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Replaced Lender" shall have the meaning provided in Section 1.15.
"Replacement Lender" shall have the meaning provided in Section 1.15.
"Reply Date" shall have the meaning provided in Section 1.04(b).
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Lenders" shall mean, at any time, Non-Defaulting Lenders
holding more than 50% of the Adjusted Total Commitment (or, if the Total
Commitment has been terminated, of the Adjusted Total Commitment as in effect
immediately prior to such termination).
"Response Date" shall have the meaning provided in Section 1.14.
"Revolving Loan" shall have the meaning provided in Section 1.01(A).
"Xxxxxxxx Tobacco" shall mean X.X. Xxxxxxxx Tobacco Company, a New
Jersey corporation.
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"S&P" shall mean Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx, Inc., or any successor thereto.
"SEC" shall have the meaning provided in Section 7.01(f).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Second Restatement Effective Date" shall have the meaning provided in
Section 5.01.
"Second Restatement Execution Date" shall have the meaning provided in
Section 12.10.
"Secured Creditors" shall mean and include, with respect to any
Collateral, (i) all Lenders (including in their capacity as Letter of Credit
Issuers or parties to Hedging Agreements) and their affiliates and other
Hedging Agreements parties as provided in the Security Documents and (ii) all
holders of New Senior Notes and Refinancing Senior Notes, in each case, to the
extent the Lien sharing provisions of the New Senior Notes or the Refinancing
Senior Notes, as the case may be, require them to be secured by such
Collateral.
"Security Documents" shall have the meaning provided in Section
7.11(b).
"Senior Managing Agent" shall mean and include JPMCB and Citibank and
any successor to either thereof appointed pursuant to Section 11.09, it being
understood that such term, when used herein, shall include JPMCB or Citibank,
as the case may be, acting in its capacity as Administrative Agent or
Syndication Agent, as the case may be.
"Short-Term Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name under the heading "Short-Term
Commitment" in Annex I hereto, as the same may be reduced from time to time
pursuant to Section 3.02, 3.03, 9 and/or 12.04(b)(A).
"Short-Term Commitment Percentage" shall mean at any time for each
Lender (other than a Non-Extending Lender), the percentage obtained by dividing
(i) such Lender's Short-Term Commitment by (ii) an amount equal to the sum of
(x) the Short-Term Commitment of such Lender at such time plus (y) the
Long-term Commitment of such Lender at such time, provided that at any time
when the Short-Term Commitment or Long-Term Commitment shall have been
terminated, each Lender's Short-Term Commitment Percentage shall be determined
using the Short-Term Commitment or Long-Term Commitment, as the case may be, as
in effect immediately prior to the termination thereof.
"SPC" shall have the meaning provided in Section 12.04.
"Specified Acquired Business" shall mean the Person, product line or
business acquired pursuant to the Specified Acquisition.
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"Specified Acquisition" shall mean the acquisition by the Borrower or
a direct or indirect Wholly-Owned Subsidiary of the Borrower of all of the
capital stock of, or all or substantially all of the assets of, a Person
conducting a tobacco-related business prior to March 31, 2002.
"Specified Debt" shall mean and include (x) all Indebtedness for
borrowed money of the Borrower (including Stub Notes) other than (i) any
Indebtedness for borrowed money outstanding under this Agreement, (ii) Stub
Notes with principal payments due earlier than the Facility Maturity Date to
the extent an amount equal to the principal payments so due has been escrowed
for the payment thereof pursuant to arrangements (the "Escrow") reasonably
satisfactory to the Majority SMA, (iii) Qualified Stub Notes, New Senior Notes
and/or Refinancing Senior Notes in an aggregate principal amount of up to
$500,000,000, (iv) Supported CP and (v) Indebtedness owing by the Borrower to
any Subsidiary to the extent (and only to the extent) such intercompany
Indebtedness is subordinated to the Obligations of the Borrower under the
Credit Documents on the same basis as intercompany Indebtedness owing by any
Subsidiary Guarantor (and incurred in reliance on Section 8.04(i)) is
subordinated to the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty pursuant to the Intercompany Subordination Agreement, (y)
the full stated amount of all outstanding Independent Litigation Bonds issued
for the account of the Borrower or Xxxxxxxx Tobacco (other than any portion
thereof that has been cash collateralized or supported by Letters of Credit)
and (z) all Guaranteed L/C Obligations.
"Specified Subsidiaries" shall mean GMB and FHS.
"Spin-Off" shall have the meaning provided in the Original Credit
Agreement.
"Stated Amount" of any Letter of Credit shall mean the maximum amount
available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met.
"Stub Notes" shall mean any outstanding senior notes of the Borrower
issued on or prior to May 1, 1999, which Stub Notes aggregated approximately
$330,744,000 in outstanding principal amount on the Second Restatement
Effective Date.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower that
has executed and delivered the Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01J.
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"Supported CP" shall mean outstanding commercial paper issued by the
Borrower, to the extent the credit rating assigned to such commercial paper by
any rating agency is premised on the liquidity support provided by this
Agreement.
"Swingline Commitment" shall mean, at any time, for each Swingline
Lender, the lesser of (x) the Commitment of such Swingline Lender (in its
capacity as a Lender) at such time and (y) $16,666,666.66.
"Swingline Lender" shall mean and include each of JPMCB, Citibank,
Credit Lyonnais, Mizuho and CSFB, in each case, so long as such entity remains
a Lender hereunder.
"Swingline Loans" shall have the meaning provided in Section 1.01(B).
"Swingline Maturity Date" of any Swingline Lender shall mean the date
which is five Business Days prior to the Final Maturity Date for the
Commitments and Revolving Loans of such Swingline Lender.
"Syndication Agent" shall mean Citibank.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean for any determination under Section 8.08, the
four consecutive fiscal quarters of the Borrower then last ended (taken as one
accounting period).
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each Lender at such time.
"Total Swingline Commitment" shall mean, at any time, the sum of the
Swingline Commitments of each of the Swingline Lenders at such time, provided
that the Total Swingline Commitment shall not at any time exceed the Total
Commitment.
"Total Unutilized Commitment" shall mean, at any time, the excess of
(x) the Total Commitment at such time over (y) the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans, Swingline Loans and
Competitive Bid Loans at such time and (ii) the Letter of Credit Outstandings
at such time.
"Transaction" shall mean collectively, (i) the entering into of this
Agreement, (ii) the occurrence of the Second Restatement Effective Date, and
(iii) the payment of all fees and expenses incurred in connection with the
foregoing.
"Trigger Event" shall mean that the Applicable Credit Rating issued by
each Rating Agency is at least one level below the Minimum Investment Grade
Rating or that the Applicable Credit Rating issued by either Rating Agency is
at least two levels below the Minimum Investment Grade Rating.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Reference Rate Loan or Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the present value of the accrued benefits under such
Plan as of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by such Plan's actuary in the most recent annual valuation of
such Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Wholly-Owned Subsidiary" of any Person shall mean any
Subsidiary of such Person to the extent all of the capital stock or other
ownership interests in such Subsidiary, other than directors' or nominees'
qualifying shares, is owned directly or indirectly by such Person.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device, telegraph
or cable.
SECTION 11. The Senior Managing Agents.
11.01 Appointment. Each Lender hereby irrevocably
designates and appoints JPMCB and Citibank, as Senior Managing Agents (such term
to include each Senior Managing Agent acting as Administrative Agent or
Syndication Agent, as applicable, and the Administrative Agent acting as
Collateral Agent) of such Lender to act as specified herein and in the other
Credit Documents, and each such Lender hereby irrevocably authorizes JPMCB and
Citibank, as the Senior Managing Agents for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the respective Senior Managing Agents by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Each Senior Managing Agent agrees to act as such upon the
express conditions contained in this Section 11. Notwithstanding any provision
to the contrary elsewhere in this Agreement, no Senior Managing Agent shall have
any duties or responsibilities, except those expressly set forth herein or in
the other Credit Documents, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
Senior Managing Agent. The provisions of this Section 11 are solely for the
benefit of the Senior Managing Agents and the Lenders, and no Credit Party shall
have any rights as a third party beneficiary of any of the provisions hereof,
provided that the Borrower shall have the rights granted to it pursuant to
Section 11.09. In performing its functions and duties under this Agreement, each
Senior Managing Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for either Credit Party. No Lender which is a
Documentation Agent, Co-Documentation Agent, Managing Agent, Co-Agent or
Participant (as such Lender may be designated as such pursuant to the signature
pages hereto) shall have any duties or obligations in its capacity as such under
this Agreement.
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11.02 Delegation of Duties. Each Senior Managing Agent may
execute any of its duties under this Agreement or any other Credit Document by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Senior Managing
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 Exculpatory Provisions. No Senior Managing Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower, any Subsidiary or any of
their respective officers contained in this Agreement, any other Credit Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by any Senior Managing Agent under or in connection
with, this Agreement or any other Credit Document or for any failure of the
Borrower or any Subsidiary or any of their respective officers to perform its
obligations hereunder or thereunder. No Senior Managing Agent shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrower or any
Subsidiary. No Senior Managing Agent shall be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by any Senior Managing Agent to the Lenders or by or on behalf
of the Borrower to any Senior Managing Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.04 Reliance by Senior Managing Agents. Each Senior
Managing Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, facsimile transmission, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Credit Parties), independent accountants and
other experts selected by such Senior Managing Agent. Each Senior Managing Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Senior Managing Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders (or
to the extent specifically provided in Section 12.12, all the Lenders), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
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11.05 Notice of Default. No Senior Managing Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Senior Managing Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that any Senior Managing Agent receives such a notice, such Senior
Managing Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided, that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
11.06 Non-Reliance on Senior Managing Agents and Other
Lenders. Each Lender expressly acknowledges that no Senior Managing Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Senior Managing Agent hereafter taken, including any review of the affairs
of the Borrower or any Subsidiary, shall be deemed to constitute any
representation or warranty by any Senior Managing Agent to any Lender. Each
Lender represents to each Senior Managing Agent that it has, independently and
without reliance upon any Senior Managing Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrower
and its Subsidiaries and made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon any Senior Managing Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other condition, prospects and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, no Senior Managing Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial and other
conditions, prospects or creditworthiness of the Borrower or any of its
Subsidiaries which may come into the possession of such Senior Managing Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
11.07 Indemnification. The Lenders agree to indemnify each
Senior Managing Agent in its capacity as such ratably according to their
aggregate Commitments (or, if the Total Commitment has been terminated, their
aggregate Commitments as in effect immediately prior to such termination), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against such Senior Managing Agent in its capacity as such in any way
relating to or arising out of this Agreement or any other Credit Document, or
any documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted to be taken by any Senior
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Managing Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by the Borrower or any of its
Subsidiaries; provided that no Lender shall be liable to any Senior Managing
Agent for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Senior Managing Agent's gross negligence or willful
misconduct. If any indemnity furnished to any Senior Managing Agent for any
purpose shall, in the opinion of such Senior Managing Agent, be insufficient or
become impaired, such Senior Managing Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this Section 11.07 shall
survive the payment of all Obligations.
11.08 Senior Managing Agents in Their Individual
Capacities. Each Senior Managing Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower and its Subsidiaries as though such Senior Managing Agent were not a
Senior Managing Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, each Senior Managing Agent shall have the same rights
and powers under this Agreement as any Lender and may exercise the same as
though it were not a Senior Managing Agent, and the terms "Lender" and "Lenders"
shall include each Senior Managing Agent in its individual capacity.
11.09 Successor Senior Managing Agents, etc. (a) Any Senior
Managing Agent may resign as a Senior Managing Agent upon 20 days' notice to the
Lenders, provided that prior to, and as a condition of, the last remaining
Senior Managing Agent so resigning, the Required Lenders shall appoint from
among the Lenders a successor Senior Managing Agent for the Lenders subject to
prior approval by the Borrower (such approval not to be unreasonably withheld,
provided that such Lender agrees to assume the Swingline Commitment of such
Senior Managing Agent in full), whereupon such successor agent shall succeed to
the rights, powers and duties of the Senior Managing Agents, and the term
"Senior Managing Agents" shall include such successor agent effective upon its
appointment, and the resigning Senior Managing Agent's rights, powers and duties
as a Senior Managing Agent shall be terminated, without any other or further act
or deed on the part of such former Senior Managing Agent or any of the parties
to this Agreement.
(b) After any retiring Senior Managing Agent's
resignation hereunder as a Senior Managing Agent pursuant to Section 11.09(a),
the provisions of this Section 11 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was a Senior Managing Agent under
this Agreement.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i)
pay all reasonable out-of-pocket costs and expenses of (x) the Senior Managing
Agents, whether or not the transactions herein contemplated are consummated, in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of White & Case LLP but of no other
counsel) and (y) each Senior Managing Agent and each of the Lenders in
connection with the enforcement of the
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Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and disbursements of counsel
for each Senior Managing Agent and for each of the Lenders); (ii) pay and hold
each of the Lenders harmless from and against any and all present and future
stamp and other similar taxes with respect to the foregoing matters and save
each of the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (iii) indemnify each Lender,
its affiliates and their respective officers, directors, employees,
representatives, agents and affiliates from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not any
Lender is a party thereto) related to the entering into and/or performance of
any Credit Document or the use of the proceeds of any Loans hereunder or the
Transaction or the consummation of any other transactions contemplated in any
Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to either Credit Party
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other Indebtedness at any time held or owing by such Lender (including,
without limitation, by branches and agencies of such Lender wherever located) to
or for the credit or the account of either Credit Party against and on account
of the Obligations and liabilities of such Credit Party to such Lender under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations of such Credit Party purchased by such
Lender pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telegraphic, telex, facsimile transmission or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered, if to a Credit Party, at the address specified opposite its signature
below or in the other relevant Credit Documents, as the case may be; if to any
Lender, at its address specified for such Lender on Annex II hereto; or, at such
other address as shall be designated by any party in a written notice to the
other parties hereto. All such notices and communications shall be telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, and shall be
effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that no Credit Party may
assign or transfer any of its interests hereunder, except
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to the extent any such assignment results from the consummation of a transaction
permitted under Section 8.02, without the prior written consent of the Lenders
and provided further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth below in this Section 12.04, provided that nothing in this Section
12.04 shall prevent or prohibit any Lender from pledging its rights under this
Agreement and/or its Loans and/or Note hereunder to a Federal Reserve Lender in
support of borrowings made by such Lender from such Federal Reserve Lender.
(b) Each Lender shall have the right to transfer, assign
or grant participations in all or any part of its remaining rights and
obligations hereunder on the basis set forth below in this clause (b).
(A) Assignments. At any time, each Lender may assign
pursuant to an Assignment Agreement substantially in the form of Exhibit E-2
hereto (each, an "Assignment Agreement") all or a portion of its rights and
obligations hereunder pursuant to this clause (b)(A) to (x) one or more Lenders
and/or their affiliates or (y) with the consent of the Administrative Agent and
so long as no Event of Default then exists with the consent of the Borrower
(which consent shall not be unreasonably withheld), one or more other Eligible
Transferees, provided that any such assignment pursuant to clause (y) above
shall be in the aggregate amount of at least $5,000,000, except to the extent
that after giving effect to such assignment such Lender's Commitment is reduced
to zero. Any assignment to another Lender pursuant to this clause (b)(A) will
become effective upon the payment to the Administrative Agent by (I) either the
assigning or the assignee Lender or (II) in the case of an assignment pursuant
to Section 1.15, the Replacement Lender, of a nonrefundable assignment fee of
$3,500 and the recording by the Administrative Agent of such assignment, and the
resultant effects thereof on the Commitments (and the Short-Term Commitments and
Long-Term Commitments, if any) of the assigning Lender and the assignee Lender,
in the Register, the Administrative Agent hereby agreeing to effect such
recordation no later than five Business Days after its receipt of a written
notification by the assigning Lender and the assignee Lender of the proposed
assignment, provided that the Administrative Agent shall not be required to (but
may if it so elects) so record any assignment in the Register on or after the
date on which any proposed amendment, modification or supplement in respect of
this Agreement has been circulated to the Lenders for approval until the earlier
of (x) the effectiveness of such amendment, modification or supplement in
accordance with Section 12.12 or (y) 30 days following the date on which such
proposed amendment, modification or supplement was circulated to the Lenders.
Assignments pursuant to this clause (b)(A) to any Person not theretofore a
Lender hereunder will only be effective if the Administrative Agent shall have
received a written notice in the form of Exhibit E-1 hereto from the assigning
Lender and the assignee Lender and payment of a nonrefundable assignment fee of
$3,500 to the Administrative Agent by (I) either the assigning or the assignee
Lender or (II) in the case of an assignment pursuant to Section 1.15, the
Replacement Lender. No later than five Business Days after its receipt of such
written notice, the Administrative Agent will record such assignment, and the
resultant effects thereof on the Commitment (and the Short-Term Commitment and
Long-Term Commitment, if any) of the assigning Lender, in the Register, at which
time such assignment shall become effective, provided that the Administrative
Agent shall not be required to (but may if it so elects) record any assignment
in the Register on or after the date on which any proposed amendment,
modification or supplement in respect of this Agreement has been circulated to
the Lenders for approval until the earlier of (x) the
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effectiveness of such amendment, modification or supplement in accordance with
Section 12.12 or (y) 30 days following the date on which such proposed
amendment, modification or supplement was circulated to the Lenders. Upon the
effectiveness of any assignment pursuant to this clause (b)(A), (x) the assignee
will become a "Lender" for all purposes of this Agreement and the other Credit
Documents with a Commitment (and a Short-Term Commitment and Long-Term
Commitment, if applicable) as so recorded by the Administrative Agent in the
Register, and to the extent of such assignment, the assigning Lender shall be
relieved of its obligations hereunder with respect to the portion of its
Commitment (and Short-Term Commitment and Long-Term Commitment, if applicable)
being assigned, (y) Annex I shall be deemed to be amended to reflect the
Commitment (and Short-Term Commitment and Long-Term Commitment) of the
respective assignee and of the other Lenders and (z) the Borrower shall issue
new Notes (in exchange for the Note of the assigning Lender) to the assigning
Lender (to the extent such Lender's Commitment is not reduced to zero as a
result of such assignment) and to the assignee Lender, in each case to the
extent requested by the assigning Lender or assignee Lender, as the case may be,
in conformity with the requirements of Section 1.06 to the extent needed to
reflect the revised Commitments of such Lenders. The Administrative Agent will
(x) notify each Letter of Credit Issuer within 5 Business Days of the
effectiveness of any assignment hereunder and (y) prepare on the last Business
Day of each calendar quarter during which an assignment has become effective
pursuant to this clause (b)(A) a new Annex I giving effect to all such
assignments effected during such quarter and will promptly provide same to the
Borrower and each of the Lenders.
(B) Participations. Each Lender may transfer, grant or
assign participations in all or any part of such Lender's interests and
obligations hereunder pursuant to this clause (b)(B) to any Eligible Transferee,
provided that (i) such Lender shall remain a "Lender" for all purposes of this
Agreement and the transferee of such participation shall not constitute a Lender
hereunder and (ii) no participant under any such participation shall have rights
to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (x) extend the
final scheduled maturity of any of the Loans or the Commitment in which such
participant is participating, (y) reduce the interest rate (other than as a
result of waiving the applicability of any post-default increases in interest
rates) or Fees applicable to any of the Loans, Commitments or Letters of Credit
or postpone the payment of any thereof or (z) release Xxxxxxxx Tobacco from the
Subsidiary Guaranty. In the case of any such participation, the participant
shall not have any rights under this Agreement or any of the other Credit
Documents (the participant's rights against the granting Lender in respect of
such participation to be those set forth in the agreement with such Lender
creating such participation) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation, provided
that such participant shall be entitled to receive additional amounts under
Sections 1.11, 1.12, 2.05 and 4.04 on the same basis as if it were a Lender. In
addition, each agreement creating any participation must include an agreement by
the participant to be bound by the provisions of Section 12.15 and such
participant shall have executed a confidentiality agreement in the form of
Exhibit F hereto.
(c) Notwithstanding any other provisions of this Section
12.04, no transfer or assignment of the interests or obligations of any Lender
hereunder or any grant of participations therein shall be permitted if such
transfer, assignment or grant would require the Borrower or the
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Guarantor to file a registration statement with the SEC or to qualify the Loans
under the "Blue Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby
represents, and each Person that becomes a Lender pursuant to an assignment
permitted by the preceding clause (b)(A) will upon its becoming party to this
Agreement represent, that it is an Eligible Transferee which makes loans in the
ordinary course of its business and that it will make or acquire Loans for its
own account in the ordinary course of such business, provided that, subject to
the preceding clauses (a) through (c), the disposition of any promissory notes
or other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
(e) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an, "SPC") of such Granting Lender, identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any Loan that
such Granting Lender would otherwise be obligated to make to the Borrower
pursuant to Section 1.01(A) or (D), provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPC and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that (x) no SPC
shall be liable for any payment under this Agreement for which a Lender would
otherwise be liable and (y) the Granting Lender for any SPC shall be (and hereby
agrees that it is) liable for any payment under this Agreement for which the SPC
would be liable in the absence of preceding clause (x). In furtherance of the
foregoing, each party hereto hereby agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 12.04 any SPC may (i) with notice to, but
without the prior written consent of, the Borrower or the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Lender or to any financial institutions
(if consented to by the Borrower and the Administrative Agent) providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of a surety, guarantee or credit or liquidity enhancement to such
SPC.
12.05 No Waiver; Remedies Cumulative. No failure or delay
on the part of any Senior Managing Agent, the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the Administrative
Agent, any Senior Managing Agent or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and
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remedies herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Administrative Agent, any Senior Managing Agent or
any Lender would otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Senior Managing Agents or the Lenders to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent
agrees that promptly after its receipt of each payment from or on behalf of
either Credit Party in respect of any Obligations of such Credit Party, it
shall, except as otherwise provided in this Agreement, distribute such payment
to the Lenders pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or Lender's lien, by
counterclaim or cross action, by the enforcement of any right under the Credit
Documents, or otherwise) which is applicable to the payment of the principal of,
or interest on, the Loans or Fees, of a sum which with respect to the related
sum or sums received by other Lenders is in a greater proportion than the total
of such Obligations then owed and due to such Lender bears to the total of such
Obligations then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Credit Party to such Lenders in such amount as
shall result in a proportional participation by all of the Lenders in such
amount; provided, that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial
statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with GAAP consistently applied throughout the periods
involved (except as set forth in the notes thereto or as otherwise disclosed in
writing by the Borrower to the Lenders); provided, that, except as otherwise
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the financial statements for the fiscal
quarter of the Borrower ended March 31, 2002 delivered to the Lenders under, and
as defined in, the First Amended and Restated Credit Agreement pursuant to
Section 7.01(b) thereof, provided that in the event GAAP shall be modified from
that in effect at the time of the preparation of such financial statements, the
Borrower shall be entitled to utilize GAAP, as so modified, for purposes of such
computations to the extent that (x) the Borrower gives the Lenders 30 days'
prior written notice of such proposed modification and (y) prior thereto the
Borrower and the Majority SMA shall have agreed upon adjustments, if any, to
Sections 8.03(g), 8.04(l), 8.05, 8.07 and 8.08 (and the definitions used
therein), the sole purpose of which shall be to give effect to such proposed
change (it being understood and agreed that to the extent that the Borrower and
the Majority SMA cannot agree on appropriate adjustments to such Sections (or
that no adjustments are necessary), the proposed change may not be effected);
and provided further, that if at any time the computations determining
compliance with Section 8 (and the definitions used therein) utilize accounting
principles different from those utilized in the
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financial statements furnished to the Lenders pursuant to this Agreement, such
financial statements shall be accompanied by reconciliation work-sheets.
Notwithstanding the foregoing, for purposes of the computations determining
compliance with Section 8, all expenses and other charges arising from any
settlement of tobacco liability which are required by GAAP to be retroactively
applied to a previous fiscal quarter of the Borrower shall instead be accrued in
the fiscal quarter in which such expenses and charges occur.
(b) All computations of interest and Fees hereunder shall
be made on the actual number of days elapsed over a year of 360 days.
(c) All determinations of the Stated Amount of Letters of
Credit and of the principal amount of Unpaid Drawings, in each case to the
extent denominated in a currency other than U.S. dollars, shall be made by
converting same into U.S. dollars at (x) if a Currency Agreement has been
entered into by the Borrower and/or any of its Subsidiaries in connection with
such Indebtedness, and is in effect at the time of such determination, the rate
provided in such Currency Agreement, provided that this clause (x) shall not be
applicable (I) unless the Administrative Agent has received sufficient
information from the Borrower to determine the exchange rate established by such
Currency Agreement and the duration thereof, or (II) to any determination of the
Borrower's obligation to reimburse in U.S. dollars a Drawing under a Letter of
Credit denominated in a currency other than U.S. dollars, (y) in the case of a
determination of the Borrower's obligation to reimburse in U.S. dollars a
Drawing under a Letter of Credit denominated in a currency other than U.S.
dollars, the spot exchange rate for the currency in question of the Letter of
Credit Issuer on the date of such Drawing or (z) if the provisions of the
foregoing clauses (x) and (y) are not applicable, the "official" exchange rate,
if applicable, or the spot exchange rate for the currency in question calculated
by the Administrative Agent on the last Business Day of the month then last
ended preceding the date on which any such determination is being made and at
such other times as the Administrative Agent elects to make such determination,
it being understood that the Administrative Agent shall have no obligation to
make any such other determinations. The Administrative Agent will promptly
notify the Borrower and each Letter of Credit Issuer of its determinations
hereunder.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a)
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the Borrower
at its address for notices pursuant to Section 12.03, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right of
the Administrative Agent, any Senior Managing Agent or any Lender to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
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(b) The Borrower hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in the
preceding clause (a) and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Execution. The Second Amended and Restated Credit
Agreement shall be fully executed on the date (the "Second Restatement Execution
Date") on which the Borrower, the Required Lenders and each Lender (other than a
Non-Extending Lender) shall have signed a copy thereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent
at the Administrative Agent's Office or, in the case of the Lenders, shall have
given to the Administrative Agent telephonic (confirmed in writing), written,
telex or facsimile notice (actually received) at such office that the same has
been signed and mailed to it. The Administrative Agent will give the Borrower
and each Lender prompt written notice of the occurrence of the Second
Restatement Execution Date.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Required Lenders; provided, that (x) no such change,
waiver, discharge or termination shall, without the consent of each Lender
(other than a Defaulting Lender) with Obligations being directly affected
thereby, (i) extend the scheduled final maturity of any Loan or Note, or any
portion thereof, or reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default
increase in interest rates) thereon or Fees or reduce the principal amount
thereof, or increase the Commitment of any Lender over the amount thereof then
in effect (it being understood that a waiver of any Default or Event of Default
or of a mandatory reduction in the Total Commitment shall not constitute a
change in the terms of the Commitment of any Lender), (ii) release Xxxxxxxx
Tobacco from the Subsidiary Guaranty, (iii) at any time Collateral is pledged
pursuant to the Security Documents release (other than pursuant to the automatic
release provided for in Section 7.11) all or substantially all of the
Collateral, (iv) amend, modify or waive any provision of this Section, or
Section 1.11, 1.12, 1.14, 2.05, 4.04, 9.01, 11.07, 12.01, 12.02, 12.04, 12.06,
12.07(b) or 12.15, (v) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders or (vi) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement; and
(y) the financial covenants set forth in Sections 8.03(g), 8.04(l), 8.05, 8.07
and 8.08 (and the defined terms used therein) may be adjusted with the consent
of the Borrower and the Majority SMA to
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the extent provided in Sections 7.09 and 12.07(a). No provision of Section 11
may be amended or modified without the consent of any Senior Managing Agent
adversely affected thereby. The obligations of Swingline Lenders to make
Swingline Loans, the terms of any such Swingline Loans and the obligations of
the other Lenders to fund Mandatory Drawings shall not be amended or modified
without the consent of the Swingline Lenders. The terms of Section 2 shall not
be amended or modified without the consent of any Letter of Credit Issuer
adversely affected thereby.
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.11, 1.12, 2.05, 4.04, 11.07 or 12.01 shall
survive the execution and delivery of this Agreement and the making of the
Loans, the issuances of Letters of Credit, the repayment of the Obligations and
the termination of the Total Commitment.
12.14 Domicile of Loans. Subject to Section 12.04, each
Lender may transfer and carry its Loans at, to or for the account of any branch
office, subsidiary or affiliate of such Lender; provided, that the Borrower
shall not be responsible for costs arising under Section 1.11, 1.12, 2.05 or
4.04 resulting from any such transfer (other than a transfer pursuant to Section
1.13) to the extent not otherwise applicable to such Lender prior to such
transfer.
12.15 Confidentiality. Subject to Section 12.04, each
Lender shall hold all non-public information furnished by or on behalf of the
Borrower in connection with such Lender's evaluation of whether to become a
Lender hereunder or obtained pursuant to the requirements of this Agreement,
which has been identified as such by the Borrower ("Confidential Information"),
in accordance with its customary procedure for handling confidential information
of this nature and in accordance with safe and sound banking practices and in
any event may make disclosure reasonably required by any bona fide transferee or
participant (which shall be an Eligible Transferee) in connection with the
contemplated transfer of any Loans or participations therein or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process or to such Lender's attorneys or independent auditors; provided,
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify the Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and provided further, that in no event shall any Lender be
obligated or required to return any materials furnished by the Borrower or any
Subsidiary. Each Lender agrees that it will not provide to prospective
assignees, transferees or participants any of the Confidential Information
unless such Person has executed a Confidentiality Agreement in the form of
Exhibit F.
12.16 Waiver of Jury Trial. Each of the parties to this
Agreement hereby irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement, the
other Credit Documents or the transactions contemplated hereby or thereby.
12.17 Special Provisions Regarding Certain Amendments. (a)
Notwithstanding anything to the contrary contained in this Agreement, each
Lender which executes a counterpart of this Agreement hereby agrees for itself,
and its successors and assigns, that such Lender (and
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for this purpose its successors and assigns) will not in the future agree to
amend or modify the provisions of Section 12.04(e) without the consent of each
Granting Lender directly and adversely affected by such amendment or
modification.
(b) Notwithstanding anything to the contrary contained in
this Agreement, each Lender which executes a counterpart of this Agreement
hereby agrees for itself, and its successors and assigns, that after May 19,
2003 Sections 1.11, 1.12, 1.14, 2.05, 4.04, 11.07, 12.01, 12.02, 12.04, 12.06,
12.07(b), 12.12 and 12.15 may be amended or modified by the Required Lenders to
the extent such amendments and/or modifications are technical in nature and are
not adverse in any material respect to the interests of any Lender with
Obligations being directly affected thereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
X.X. XXXXXXXX TOBACCO HOLDINGS,
INC. (f/k/a RJR Nabisco, Inc.)
By: /s/ XxXxxx X. Xxxxx, III
---------------------------------------
Title: VP, Deputy General Counsel &
Secretary
LEAD AGENTS
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), Individually and as
Administrative Agent and Senior Managing
Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Title: Managing Director
CITIBANK, N.A., Individually and as
Syndication Agent and Senior Managing
Agent
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: Vice President
THE BANK OF NEW YORK, Individually
and as Documentation Agent
By: /s/ Xxxxxxxx X.X. Xxxxxxx
---------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, Individually
and as Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Managing Director
XXXXXX COMMERCIAL PAPER INC.,
Individually and as Documentation Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Title: Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Co-Documentation
Agent
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Title: VP, Deputy General Counsel &
Secretary
MIZUHO CORPORATE BANK, LTD.,
Individually and as Co-Documentation
Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Title: Senior Vice President
PARTICIPANTS
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx Xxxx
---------------------------------------
Title: Managing Director
ERSTE BANK
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Title: Vice President
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Title: Managing Director
CITY NATIONAL BANK OF NEW JERSEY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President, Chief
Financial Officer
CHOHUNG BANK, NEW YORK BRANCH
By: /s/ Xxxxx Soo Moon
---------------------------------------
Title: General Manager
BANCO BILBAO VIZCAYA ARGENTARIA
PUERTO RICO OVERSEAS, A UNIT OF
BANCO BILBAO VIZCAYA
ARGENTARIA PUERTO RICO
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Title: Executive Vice President
NON-EXTENDING LENDERS
FLEET NATIONAL BANK
By:
---------------------------------------
Name:
Title:
NORDDEUTSCHE LANDESBANK (NEW YORK)
By:
---------------------------------------
Name:
Title:
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
By:
---------------------------------------
Name:
Title:
