CONFORMED COPY
===============================================================================
$600,000,000
REVOLVING CREDIT AND COMPETITIVE
ADVANCE FACILITY AGREEMENT
dated as of
May 1, 2001
among
AVON PRODUCTS, INC.
AVON CAPITAL CORPORATION
THE ADDITIONAL BORROWERS, BANKS AND OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
===============================================================================
Bank of Tokyo-Mitsubishi Trust Company, Bank of America, N.A.
and Deutsche Banc Alex. ▇▇▇▇▇ Inc.
as
Documentation Agents
Citibank, N.A.,
as Syndication Agent
JPMorgan, a Division of Chase Securities Inc.,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
as
Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
Definitions
Section 1.01. Certain Definitions...........................................2
ARTICLE 2
The Loans
Section 2.01. The Revolving Credit Loans; Commitments......................18
Section 2.02. Procedure for Revolving Credit Loans.........................18
Section 2.03. Evidence for Loans...........................................19
Section 2.04. Increase of Commitment.......................................21
Section 2.05. Reduction of Commitments.....................................22
Section 2.06. Prepayment of Revolving Credit Loans.........................22
Section 2.07. Competitive Advance Loans....................................22
Section 2.08. Purpose of Loans.............................................26
ARTICLE 3
Interest, Conversion, Fees, Etc
Section 3.01. Procedure for Interest Rate Determination....................26
Section 3.02. Interest on ABR Loans........................................26
Section 3.03. Interest on Revolving Eurodollar Loans and Competitive
Eurodollar Loans.............................................27
Section 3.04. Interest on Competitive Absolute Rate Loans..................28
Section 3.05. Continuation and Conversion of Revolving Credit Loans........28
Section 3.06. Post-Maturity Interest.......................................28
Section 3.07. Maximum Interest Rate........................................28
Section 3.08. Fees.........................................................29
ARTICLE 4
Disbursement and Payment
Section 4.01. Disbursement of Loans; Pro Rata Treatment of Banks...........31
Section 4.02. Method of Payment............................................31
Section 4.03. Compensation for Losses......................................32
Section 4.04. Withholding, Reserves and Additional Costs...................33
Section 4.05. Unavailability and Impracticability..........................37
PAGE
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Section 4.06. Substitution of Banks........................................38
ARTICLE 5
Representations and Warranties
Section 5.01. Representations and Warranties of the Borrowers..............39
ARTICLE 6
Conditions Precedent
Section 6.01. Conditions to Effectiveness..................................42
Section 6.02. Conditions to Each Loan......................................44
Section 6.03. Satisfaction of Conditions Precedent.........................44
Section 6.04. Additional Borrowers.........................................45
ARTICLE 7
Covenants
Section 7.01. Affirmative Covenants........................................46
Section 7.02. Negative Covenants...........................................49
ARTICLE 8
Events of Default
Section 8.01. Events of Default............................................51
Section 8.02. Notice of Default............................................53
ARTICLE 9
The Administrative Agent and the Banks
Section 9.01. The Agency...................................................54
Section 9.02. The Administrative Agent's Duties............................54
Section 9.03. Sharing of Payments and Expenses.............................54
Section 9.04. The Administrative Agent's Liabilities.......................55
Section 9.05. The Administrative Agent as a Bank...........................55
Section 9.06. Bank Credit Decision.........................................55
Section 9.07. Indemnification..............................................56
Section 9.08. Successor Administrative Agent...............................57
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PAGE
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ARTICLE 10
The Guaranty
Section 10.01. The Guaranty................................................57
Section 10.02. Absolute Guaranty...........................................58
Section 10.03. Consents, Waivers and Renewals..............................58
Section 10.04. Subrogation.................................................58
Section 10.05. Security....................................................59
Section 10.06. Continuing Guaranty.........................................59
Section 10.07. Waiver of Notice............................................59
ARTICLE 11
Miscellaneous
Section 11.01. Applicable Law..............................................59
Section 11.02. Set-off.....................................................59
Section 11.03. Expenses....................................................60
Section 11.04. Amendments..................................................60
Section 11.05. Cumulative Rights and No Waiver.............................60
Section 11.06. Notices.....................................................61
Section 11.07. Severability................................................62
Section 11.08. Parties in Interest.........................................62
Section 11.09. Waiver of Right to Jury.....................................65
Section 11.10. Indemnity...................................................65
Section 11.11. Consent to Jurisdiction.....................................66
Section 11.12. Confidentiality.............................................66
Section 11.13. Execution in Counterparts...................................66
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SCHEDULES
Schedule 2.01 -- Banks and Commitments
Schedule 5.01(e) -- Certain Litigation
Schedule 6.04 -- Certain Additional Borrowers
EXHIBITS
Exhibit A -- Form of Revolving Credit Loan Request
Exhibit B-1 -- Form of Revolving Credit Note
Exhibit B-2 -- Form of Competitive Advance Note
Exhibit C-1 -- Competitive Advance Facility Procedures
Exhibit C-2 -- Form of Competitive Advance Loan Request
Exhibit C-3 -- Form of Competitive Advance Notice Letter
Exhibit C-4 -- Form of Competitive Advance Bid
Exhibit C-5 -- Form of Competitive Advance Bid Accept/Reject
Letter
Exhibit D -- Form of Continuation/Conversion Request
Exhibit E-1 -- Form of Additional Borrower Designation
Exhibit E-2 -- Form of Additional Borrower Confirmation
Exhibit F -- Form of Assignment and Acceptance
Exhibit G -- Form of Opinion of General Counsel of API
REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT, dated as of
May 1, 2001 (as further amended, supplemented, modified or extended from time
to time, this "Agreement"), among Avon Products, Inc., a New York corporation
("API"), Avon Capital Corporation, a Delaware corporation ("ACC"), each of the
Additional Borrowers (as defined below) from time to time designated as such,
each of the banks and other lenders from time to time parties hereto (each, a
"Bank" and, collectively, the "Banks") and the Administrative Agent (as defined
below).
W I T N E S S E T H:
WHEREAS, API, ACC, each of the offshore borrowers listed therein, the
banks listed therein and The Chase Manhattan Bank, as administrative agent, are
parties to an Amended and Restated Revolving Credit and Competitive Advance
Facility Agreement, dated as of August 8, 1996 (the "Existing Credit
Agreement");
WHEREAS, API has requested that, subject to certain conditions, including
the termination of the Commitments of the banks party to the Existing Credit
Agreement and the payment of all loans outstanding thereunder, the
Administrative Agent and the Banks enter into this Agreement;
WHEREAS, the Administrative Agent and the Banks are willing to enter into
this Agreement on the terms and subject to the conditions hereof;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
Definitions
Section 1.01. Certain Definitions.
(a) Terms Generally. The definitions ascribed to terms in this Section
1.01 and elsewhere in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The words "hereby", "herein", "hereof", "hereunder" and words of similar import
refer to this Agreement as a whole (including any exhibits and schedules
hereto) and not merely to the specific section, paragraph or clause in which
such word appears. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
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(b) Accounting Terms. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance
with GAAP as in effect from time to time; provided, however, that, for purposes
of determining compliance with the covenants set forth in Sections 7.02(b) and
7.02(d), such terms shall be construed in accordance with GAAP as in effect on
the date of this Agreement applied on a basis consistent with the construction
thereof applied in preparing Parent's audited financial statements referred to
in Section 5.01(d). In the event there shall occur a change in GAAP which but
for the foregoing proviso would affect the computation used to determine
compliance with either such covenant, the Borrowers and the Banks agree to
negotiate in good faith in an effort to agree upon an amendment to this
Agreement that will permit compliance with such covenant to be determined by
reference to GAAP as so changed while affording the Banks the protection
afforded by such covenant prior to such change (it being understood, however,
that such covenant shall remain in full force and effect in accordance with its
existing terms pending the execution by the Borrowers and the Banks of any such
amendment).
(c) Certain Other Terms. The following terms shall have the meanings
ascribed to them below or in the Sections of this Agreement indicated below:
"ABR Lending Office" shall mean, with respect to each Bank, its office
identified in its Administrative Questionnaire as its domestic lending office
or such other office as such Bank may hereafter designate as its domestic
lending office or ABR lending office by notice to the Borrowers and the
Administrative Agent.
"ABR Loans" shall mean, collectively, Revolving Credit Loans, or portions
thereof, that bear interest by reference to the Base Rate and in the manner set
forth in Section 3.02.
"ACC" shall have the meaning ascribed to such term in the Preamble to this
Agreement.
"Additional Amounts" shall have the meaning ascribed to such term in
Section 4.04(a).
"Additional Borrower" shall mean, as of any date, a Subsidiary of API that
has on or before such date been designated by API as an Additional Borrower in
accordance with the terms of this Agreement.
"Additional Costs" shall have the meaning ascribed to such term in Section
4.04(b).
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"Administrative Agent" shall mean The Chase Manhattan Bank, together with
its affiliates, as the administrative agent for the Banks under this Agreement
and the Credit Documents.
"Administrative Questionnaire" shall mean, with respect to each Bank, an
administrative details reply form in the form prepared by the Administrative
Agent and submitted to the Administrative Agent duly completed by such Bank.
"Agreement" shall have the meaning ascribed to such term in the Preamble
to this Agreement.
"API" shall have the meaning ascribed to such term in the Preamble to this
Agreement.
"Applicable Lending Office" shall mean, with respect to any Bank, (a) in
the case of its ABR Loans, its ABR Lending Office and (b) in the case of
Revolving Eurodollar Loans or Competitive Eurodollar Loans, its Eurodollar
Lending Office.
"Assignee" shall have the meaning ascribed to such term in Section
11.08(c).
"Assignment and Acceptance" shall have the meaning ascribed to such term
in Section 11.08(c).
"Augmenting Bank" shall have the meaning ascribed to such term in Section
2.04.
"Available Facility" shall mean (a) on any date prior to the Termination
Date, an amount equal to the remainder of (i) the Total Commitment on such date
minus (ii) the sum of the aggregate outstanding principal amount of Loans on
such date and (b) on and after the Termination Date, $0.
"Bank" shall have the meaning ascribed to such term in the Preamble to
this Agreement. In the circumstances described in Section 11.08(c)(iii), an
Assignee shall also be deemed a "Bank."
"Base Rate" shall mean, for any day, a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall be equal to the higher
of:
(a) the rate of interest publicly announced by the Administrative Agent in
New York City from time to time as its prime rate in effect on such day; and
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(b) the sum of (i) 1/2 of 1% per annum and (ii) the Federal Funds Rate in
effect on such day.
"Benefit Arrangement" shall mean, at any time, an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" shall mean, with respect to any Loan, whichever of the
Borrowers that has borrowed such Loan in accordance with the terms hereof.
"Borrowers" shall mean, collectively, as of any date, the Initial
Borrowers and the Additional Borrowers as of such date; provided that if ACC
shall at any time cease to be a Wholly-Owned Subsidiary, it shall cease to be
an Initial Borrower or a Borrower at such time. Without in any way limiting
API's obligations as guarantor under Article 10, all the obligations of the
Borrowers hereunder and in respect of any Loans shall be several and not joint.
"Borrowing Date" shall mean, with respect to any Loan, the date set forth
in the relevant Borrowing Request as the date upon which such Borrower desires
to borrow such Loan.
"Borrowing Request" shall mean a Competitive Advance Loan Request or a
Revolving Credit Loan Request.
"Capital Lease" shall mean, with respect to any Person, any obligation of
such Person to pay rent or other amounts under a lease with respect to any
property (whether real, personal or mixed) acquired or leased by such Person
that is required to be accounted for as a liability on a balance sheet of such
Person in accordance with GAAP.
"Change of Control" shall mean, with respect to API, (i) any "person" (as
defined in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)
and 14(d) thereof), excluding API, any Subsidiary and any Plan (including any
trustee of such plan acting as trustee), but including a "group" as defined in
Section 13(d)(3) of the Exchange Act, becomes the beneficial owner of shares of
API having at least 20% of the total number of votes that may be cast for the
election of directors of API, provided that no Event of Default will occur as a
result of an acquisition of stock by API which increases, proportionately, the
stock representing the voting power of API owned by such person or group above
20% of the voting power of API and provided further that if such person or
group acquires stock representing more than 20% of the voting power of API by
reason of share purchases by API, and after such share purchases by API
acquires any
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additional shares representing voting power of API, then an Event of Default
shall occur; or (ii) within any 24-month period beginning on or after the date
hereof, the persons who were directors of API immediately before the beginning
of such period (the "Incumbent Directors") shall cease (for any reason other
than death) to constitute at least a majority of the Board of Directors of API
or the board of directors of any successor to API, provided that any director
who was not a director as of the date hereof shall be deemed to be an Incumbent
Director if such director was elected to the Board of Directors by, or on the
recommendation of or with the approval of, at least two-thirds of the directors
who then qualified as Incumbent Directors either actually or by prior operation
of this clause (ii) and provided further that any director elected to the Board
of Directors of API to avoid or settle a threatened or actual proxy contest
shall in no event be deemed to be an Incumbent Director.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, with respect to any Bank, the amount of such
Bank's commitment to make Loans reflected in the Register. In the case of Banks
parties hereto on the date hereof, such amount is set forth opposite such
Bank's name under the heading "Commitment" on Schedule 2.01, as such amount may
be reduced from time to time pursuant to Section 2.05, 4.06 or 11.08 or
increased from time to time pursuant to Section 2.04 or 11.08.
"Competitive Absolute Rate Loans" shall mean, collectively, Competitive
Advance Loans that bear interest at a fixed percentage rate per annum
(expressed in the form of a decimal to no more than four decimal places)
specified by the Bank making such Loan in its Competitive Advance Bid.
"Competitive Advance Accept/Reject Deadline" shall mean, with respect to
any Competitive Advance Loan, the time specified as the Competitive Advance
Deadline for such Loan in Exhibit C-1.
"Competitive Advance Accept/Reject Notice" shall have the meaning ascribed
to such term in Section 2.07.
"Competitive Advance Bid" shall mean an offer by a Bank to make a
Competitive Advance Loan pursuant to Section 2.07.
"Competitive Advance Bid Deadline" shall mean, with respect to any
Competitive Advance Loan, the time specified as the Competitive Advance Bid
Deadline for such Loan in Exhibit C-1.
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"Competitive Advance Bid Rate" shall mean, with respect to any Competitive
Advance Bid, (a) in the case of a Competitive Eurodollar Loan, the Competitive
Advance Margin, and (b) in the case of a Competitive Absolute Rate Loan, the
fixed rate of interest at which the Bank making the Competitive Advance Bid
offers thereby to make a Competitive Advance Loan (in either case, for purposes
of Section 2.07(d), determined after giving effect to any waiver, pursuant to
Section 2.07(c), of compensation under Section 3.03(c), 4.04(a) or 4.04(b)).
"Competitive Advance Loan Request" shall mean a telephonic request by a
Borrower (confirmed in writing countersigned by a Responsible Officer of API by
not later than 4:00 P.M., New York time, on the date of such telephonic notice)
to borrow Competitive Advance Loans, which shall specify, with respect to such
requested Competitive Advance Loans, (a) the proposed Borrowing Date therefor,
(b) the aggregate amount of Competitive Advance Loans which such Borrower
desires to borrow on such Borrowing Date, (c) the Maturity Date, (d) whether
such Competitive Advance Loans are to bear interest as Competitive Eurodollar
Loans or Competitive Absolute Rate Loans, (e) if such Competitive Advance Loans
are Competitive Eurodollar Loans, the Interest Period therefor, (f) any other
terms to be applicable to such proposed Competitive Advance Loans, and (g)
confirming that such request has been approved by API.
"Competitive Advance Loans" shall mean, collectively, Loans, or portions
thereof, made pursuant to Section 2.07, in each case denominated in Dollars.
"Competitive Advance Margin" shall mean, with respect to any Competitive
Eurodollar Loan for any Interest Period, the margin (expressed as a percentage
rate per annum in the form of a decimal to no more than four decimal places) to
be added to or subtracted from LIBOR, in order to determine the interest rate
applicable to such Loan during such Interest Period, as specified in the
Competitive Advance Bid and the Competitive Advance Accept/Reject Notice
relating to such Loan.
"Competitive Advance Notes" shall mean, collectively, any promissory notes
of the Borrowers evidencing Competitive Advance Loans.
"Competitive Advance Notice Time" shall mean, with respect to any
Competitive Advance Loan, the time specified as the Competitive Advance Notice
Time for such Loan in Exhibit C-1.
"Competitive Advance Rate" shall mean, with respect to any Competitive
Absolute Rate Loan, the fixed rate of interest (expressed as a
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percentage rate per annum in the form of a decimal to no more than four decimal
places) for such Loan, as specified in the Competitive Advance Bid and
Competitive Advance Accept/Reject Notice relating to such Loan.
"Competitive Eurodollar Loans" shall mean, collectively, Competitive
Advance Loans that bear interest by reference to LIBOR and a Competitive
Advance Margin, in the manner set forth in Section 3.03.
"Consolidated Subsidiary" shall mean, at any date with respect to any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in the consolidated financial statements
of such Person if such statements were prepared in accordance with GAAP as of
such date.
"Conversion Date" shall mean the date on which a conversion of interest
rates on outstanding Revolving Credit Loans, pursuant to a Conversion Request,
shall take effect.
"Conversion Request" shall mean a telephonic request (confirmed in writing
not later than 4:00 P.M., New York time, on the date of such telephonic notice)
by a Borrower to convert the interest rate on all or portions of its
outstanding Revolving Credit Loans pursuant to the terms hereof, which shall
specify, with respect to such outstanding Revolving Credit Loans, (i) the
requested Conversion Date, which shall be not less than three Business Days
after the date of such Conversion Request, (ii) the aggregate amount of the
Revolving Credit Loans, from and after the Conversion Date, which are to bear
interest as ABR Loans or Revolving Eurodollar Loans, as the case may be, and
(iii) the term of the Interest Periods therefor, if any.
"Credit Documents" shall mean, collectively, this Agreement and the Notes.
"Debt" shall mean, with respect to any Person at any date, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising
in the ordinary course of business, (d) all obligations of such Person as
lessee under Capital Leases, (e) all contingent or non-contingent obligations
of such Person to reimburse or prepay any bank or other Person in respect of
amounts paid or payable (currently or in the future, on a contingent or
non-contingent basis) under a letter of credit, bankers' acceptance or similar
instrument, other than (i) contingent obligations relating to letters of credit
issued to support trade payables
8
and (ii) obligations up to $50,000,000 arising under stand-by letters of
credit, (f) all Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person and (g) all Debt of others
Guaranteed by such Person; provided, however, that Debt shall not include any
obligations incurred in connection with the funding of a trust established
under Section 501(c)(9) of the Code.
"Default" shall mean any event or circumstance which, with the giving of
notice or the passage of time, or both, would unless cured or waived become an
Event of Default.
"Disclosed SEC Investigation" means the investigation by the SEC disclosed
in Item 3 of API's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000.
"Dollars" and the sign "$" shall mean lawful money of the United States of
America.
"Domestic Business Day" shall mean any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"Effective Date" shall have the meaning ascribed to such term in Section
6.01.
"Environmental Laws" shall mean any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, franchises, licenses,
agreements or other governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes or clean-up or
other remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Group" shall mean API and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with API, are treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code.
9
"Eurodollar Business Day" shall mean any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Eurodollar Lending Office" shall mean, with respect to each Bank, its
office, branch or affiliate identified in its Administrative Questionnaire as
its Eurodollar lending office or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Eurodollar lending office by notice
to the Borrowers and the Administrative Agent.
"Eurodollar Loans" shall mean, collectively, Competitive Eurodollar Loans
and Revolving Eurodollar Loans.
"Eurodollar Reserve Percentage" shall mean, for any day, the percentage in
effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including any marginal, supplemental or emergency reserve
requirements) for a member bank of the Federal Reserve System in New York City
with deposits exceeding one billion dollars in respect of "Eurocurrency
Liabilities" (as defined in Regulation D of the Federal Reserve Board (or any
successor regulation)).
"Event of Default" shall mean any of the events described in Section 8.01.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" shall mean all present and future taxes imposed on or
measured by the overall net income of any Bank (or any office, branch or
subsidiary of such Bank) or any franchise taxes, taxes on doing business or
taxes measured by capital or net worth imposed on any Bank (or any office,
branch or subsidiary of such Bank), in each case imposed by the United Sates of
America or any political subdivision or taxing authority thereof or therein, or
taxes on or measured by the overall net income of any office, branch or
subsidiary of a Bank or any franchise taxes, taxes imposed on doing business or
taxes measured by capital or net worth imposed on any office, branch or
subsidiary of such Bank, in each case imposed by any foreign country or
subdivision thereof in which such office, branch or subsidiary is doing
business.
"Existing Credit Agreement" shall have the meaning ascribed to such term
in the recitals hereto.
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"Facility Fee" shall have the meaning ascribed to such term in Section
3.08(a).
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Domestic Business Day next succeeding such day; provided
that (a) if such day is not a Domestic Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(b) if no such rate is so published on such next succeeding Domestic Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to
the Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Federal Reserve Board" shall mean the Board of Governors of the Federal
Reserve System or any successor agency.
"Fee Payment Date" shall mean the last day of each calendar quarter,
commencing with the first such day after the date hereof, and the earlier of
(a) any other date on which the Total Commitment is cancelled in full and (b)
the Termination Date.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant segment
of the accounting profession, which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranteed Obligations" shall have the meaning ascribed to such term in
Section 10.01.
"Guaranty" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
11
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof (in whole or in part); provided that the term Guaranty
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"Indemnified Tax" shall have the meaning ascribed to such term in Section
4.04(a).
"Initial Borrower" shall mean API or ACC.
"Initial Loan" shall mean the first Loan which is made pursuant to the
terms hereof.
"Interest Coverage Ratio" shall mean, as of any date of determination, the
ratio of (a) the consolidated pre-tax income of API and its Consolidated
Subsidiaries before the cumulative effect of accounting changes and before
interest expense (other than (i) hyperinflationary interest expense in any
country that is offset by corresponding foreign exchange-related gains, (ii)
interest expense attributable to pension accruals in Germany and Italy and
(iii) interest payable to the Internal Revenue Service in respect of taxes), to
(b) consolidated interest expense for API and its Consolidated Subsidiaries
(other than the interest expense described in the parenthetical phrase in
clause (a) above), in each case for the period of four fiscal quarters ending
on such date.
"Interest Period" shall mean (a) with respect to each Revolving Eurodollar
Loan, the period commencing on the Borrowing Date or on the last day of the
preceding Interest Period and ending one, two, three or six months thereafter,
as the Borrower may elect in the applicable Borrowing Request or pursuant to
Section 3.03(b), and (b) with respect to each Competitive Eurodollar Loan, the
period commencing on the Borrowing Date and ending on the Maturity Date;
provided that
(i) any Interest Period that would otherwise end on a day that is not
a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in
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another calendar month, in which case such Interest Period shall end on
the next preceding Eurodollar Business Day,
(ii) any Interest Period (other than an Interest Period with respect
to a Competitive Eurodollar Loan with an Interest Period that is not an
integral number of months) that begins on the last Eurodollar Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on the last Eurodollar
Business Day of a calendar month, and
(iii) any Interest Period that begins before the Termination Date and
would otherwise end after the Termination Date shall end on the
Termination Date.
"LIBOR" shall mean, with respect to any Interest Period for a Eurodollar
Loan, the rate per annum determined by the Administrative Agent as the offered
rate for Dollar deposits with a term comparable to such Interest Period that
appears on the Eurodollar Telerate Page (as defined below) at approximately
11:00 A.M., London time, on the second full Eurodollar Business Day preceding
the first day of such Interest Period. However, if such rate does not appear on
the Eurodollar Telerate Page, "LIBOR" shall mean the rate per annum determined
by the Administrative Agent to be the arithmetic mean (rounded to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of the respective rates of interest communicated by the Reference Banks to
the Administrative Agent as the rate at which Dollar deposits are offered to
the Reference Banks by leading banks in the London interbank deposit market at
approximately 11:00 A.M., London time, on the second full Eurodollar Business
Day preceding the first day of such Interest Period in an amount substantially
equal to the principal amount of such Eurodollar Loan (rounded up to the
nearest integral multiple of $1,000,000) for a term equal to such Interest
Period. "Eurodollar Telerate Page" shall mean the display designated as Page
3750 on the service provided by Telerate, Inc. (or such other page as may
replace such page on such service, or any successor to the substitute for such
service for the purpose of displaying the rates at which Dollar deposits are
offered by leading banks in the London interbank deposit market).
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset,
and (c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities.
13
"Loans" shall mean, collectively, Revolving Credit Loans and Competitive
Advance Loans.
"Material Plan" shall mean a Plan or Plans having aggregate Unfunded
Liabilities in excess of $50,000,000.
"Material Subsidiary" shall mean, as of any date, a Subsidiary having
assets of at least $75,000,000, as reflected in the most recent quarterly or
annual balance sheet of such Subsidiary dated on or prior to such date.
"Maturity Date" shall mean, with respect to a Competitive Advance Loan,
the date for repayment of such Competitive Advance Loan, which date shall be at
least 10 days and (a) not more than 180 days after the Borrowing Date, in the
case of a Competitive Absolute Rate Loan, or (b) not more than six months after
the Borrowing Date, in the case of a Competitive Eurodollar Loan, and in any
event shall not be later than the Termination Date.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto that is a nationally recognized rating agency.
"Multiemployer Plan" shall mean an employee pension benefit plan within
the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA
Group is making or accruing an obligation to make contributions or has within
the preceding five plan years made contributions (including for these purposes
any Person which ceased to be a member of the ERISA Group during such five year
period) and under which liability may be imposed on any member of the ERISA
Group.
"Notes" shall mean, collectively, Revolving Credit Notes and Competitive
Advance Notes, if any.
"Non-Consenting Bank" means any Bank that, in response to any request by
API or the Administrative Agent to a departure from, waiver of or amendment to
any provision of any Credit Document that requires the agreement of all Banks,
which departure, waiver or amendment receives the consent of the Required
Banks, shall not have given its consent to such departure, waiver or amendment.
"Participant" shall have the meaning ascribed to such term in Section
11.08(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
14
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Plan" shall mean an employee pension benefit plan as defined in Section
3(2) of ERISA which is covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code and is maintained for employees
of API or any other member of the ERISA Group.
"Prescribed Forms" shall mean such duly executed form(s) or statement(s),
and in such number of copies, which may, from time to time, be prescribed by
law and which, pursuant to applicable provisions of (a) an income tax treaty
between the United States and the country of residence of the Bank providing
the form(s) or statement(s), (b) the Code or (c) any applicable rule or
regulation under the Code, permit one or more of the Borrowers to make payments
hereunder for the account of such Bank free of deduction or withholding for
income or similar taxes.
"Pro Rata Share" shall mean, in the case of each Bank, the proportion of
such Bank's Commitment to the Total Commitment of all the Banks or, if the
Total Commitment shall have been cancelled or reduced to $0 or expired, the
proportion of the aggregate amount of such Bank's Revolving Credit Loans then
outstanding to the aggregate amount of Revolving Credit Loans then outstanding.
"Reference Bank" shall mean each of The Chase Manhattan Bank, Citibank,
N.A. and Bank of America, N.A.
"Register" shall have the meaning ascribed to such term in Section 2.03.
"Required Banks" shall mean, at any date, Banks having at least a majority
of the Total Commitment or, if the Total Commitment has been cancelled or
terminated, holding at least a majority of the aggregate outstanding principal
amount of the Loans.
"Responsible Officer" shall mean, with respect to a Person, the chief
executive officer, president, chief financial officer, chief accounting
officer, treasurer, deputy treasurer or assistant treasurer, secretary or
assistant secretary or any vice president of such Person.
"Revolving Credit Loan Request" shall mean a telephonic request (confirmed
in writing by not later than 4:00 P.M., New York time, on the date of
15
such telephonic request) by a Borrower to borrow Revolving Credit Loans, which
shall specify (a) the requested Borrowing Date, (b) the aggregate amount of
Revolving Credit Loans that such Borrower desires to borrow on such date, (c)
whether such requested Revolving Credit Loans are to bear interest as ABR Loans
or Revolving Eurodollar Loans and (d) if the requested Revolving Credit Loans
are to bear interest as Revolving Eurodollar Loans, the Interest Period
therefor.
"Revolving Credit Loans" shall mean, collectively, ABR Loans and Revolving
Eurodollar Loans, in each case denominated in Dollars.
"Revolving Credit Notes" shall mean, collectively, the promissory notes of
the Borrowers evidencing Revolving Credit Loans, if any.
"Revolving Eurodollar Loans" shall mean, collectively, Revolving Credit
Loans, or portions thereof, that bear interest at the rate and in the manner
set forth in Section 3.03.
"Revolving Eurodollar Margin" shall mean, at any date and with respect to
each Revolving Eurodollar Loan, the applicable margin set forth below based
upon the ratings applicable on such date to API's senior unsecured long-term
debt:
Revolving Eurodollar Margin
Level I
Moody's: A1 or above
S&P: A+ or above 0.130%
Level II
Moody's: A2
S&P: A 0.170%
Level III
Moody's: A3
S&P: A- 0.235%
Level IV:
Moody's: Baa1/Baa2
S&P: BBB+/BBB 0.375%
Level V:
Moody's: Baa3 or lower
S&P: BBB- or lower 0.575%
16
For purposes of the foregoing, (a) if no rating for API's senior unsecured
long- term debt shall be available from either rating agency, such rating
agency shall be deemed to have established a Level V rating, (b) if the ratings
established or deemed established by Moody's and S&P shall fall within
different Levels, the Revolving Eurodollar Margin shall be based upon the Level
corresponding to the more favorable of such ratings and (c) if any rating
established or deemed established by Moody's or S&P shall be changed (other
than as a result of a change in the rating system of either Moody's or S&P),
such change shall be given effect on and as of the opening of business on the
date when such change is first announced by the rating agency making such
change. Each such change shall apply to all Revolving Eurodollar Loans
outstanding at any time during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of either Moody's or S&P shall
change prior to the Termination Date, API and the Banks shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system.
"S&P" shall mean Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and any successor thereto that is a nationally recognized
rating agency.
"SEC" shall mean the Securities and Exchange Commission or any successor
agency.
"Subsidiary" shall mean any corporation or other entity of which a
majority of the securities or other ownership interests having ordinary voting
power to elect directors or other persons performing similar functions are at
the time directly or indirectly owned by API.
"Taxes" shall have the meaning ascribed to such term in Section 4.04(a).
"Termination Date" shall mean the fifth anniversary of the Effective Date
or, if earlier, the date on which all Loans shall have been fully repaid and
all Commitments entirely cancelled.
"Total Commitment" shall mean the aggregate Commitments of all the Banks,
being initially $600,000,000 (subject to cancellation, increase or reduction
pursuant to Section 2.04 or 2.05).
"Unfunded Liabilities" means, with respect to any Plan, any amount by
which (a) the present value of all benefit liabilities under such Plan exceeds
(b) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent
17
valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"Utilization Fee" shall have the meaning accorded to such term in Section
3.08(b).
"Wholly-Owned Subsidiary" shall mean any Subsidiary all the shares of
stock of all classes of which (other than directors' qualifying shares) at the
time are owned directly or indirectly by API.
ARTICLE 2
The Loans
Section 2.01. The Revolving Credit Loans; Commitments. (a) Prior to the
Termination Date and subject to the terms and conditions of this Agreement,
each of the Banks, severally and not jointly with the other Banks, agrees to
make one or more Revolving Credit Loans denominated in Dollars to the Borrowers
from time to time in an aggregate principal amount at any one time outstanding
not to exceed its Commitment; provided, however, that the amount of Revolving
Credit Loans which may be borrowed on any Borrowing Date may not exceed the
Available Facility (after giving effect to any Loans being repaid or prepaid on
such Borrowing Date and any other Loans to be made on such Borrowing Date).
(b) Each Bank's Commitment, as of the date of this Agreement, is set forth
opposite its name in Schedule 2.01, and, after such date, each Bank's
Commitment shall be recorded in the Register as provided in Section 2.03.
Section 2.02. Procedure for Revolving Credit Loans. (a) A Borrower may
borrow Revolving Credit Loans by giving a Revolving Credit Loan Request
telephonically, to the Administrative Agent not later than 10:30 A.M., New York
time (to be confirmed in writing in substantially the form of Exhibit A not
later than 4:00 P.M. on the same day), (i) on the Borrowing Date therefor with
respect to any ABR Loan and (ii) at least three Eurodollar Business Days before
the Borrowing Date with respect to any Revolving Eurodollar Loan. Revolving
Credit Loans shall be in an amount equal to $10,000,000 or an integral multiple
of $1,000,000 in excess thereof (except that such borrowing of ABR Loans may be
in the aggregate amount of the unused portion of the Total Commitment).
(b) Upon receipt of any Revolving Credit Loan Request from a Borrower, the
Administrative Agent shall forthwith give notice to each Bank of
18
the substance thereof. Not later than 2:00 P.M., New York time, on the
Borrowing Date specified in such Revolving Credit Loan Request, each Bank shall
make available to the Administrative Agent in immediately available funds at
the Applicable Lending Office of the Administrative Agent (or, if the
Administrative Agent has specified a different address in the notice referred
to above, at such address), such Bank's Pro Rata Share of the Revolving Credit
Loans requested.
(c) Upon receipt by the Administrative Agent of all such funds, the
Administrative Agent shall disburse to the relevant Borrower on the requested
Borrowing Date the Revolving Credit Loans requested in such Revolving Credit
Loan Request. The Administrative Agent may, but shall not be required to,
advance on behalf of any Bank such Bank's Pro Rata Share of such Revolving
Credit Loans on a Borrowing Date unless such Bank shall have notified the
Administrative Agent prior to such Borrowing Date that it does not intend to
make available its Pro Rata Share of such Revolving Credit Loans on such date.
If the Administrative Agent makes such an advance, the Administrative Agent
shall be entitled to recover such amount on demand from the Bank on whose
behalf such advance was made, and if such Bank does not pay the Administrative
Agent the amount of such advance upon demand, the relevant Borrower shall
promptly repay such amount to the Administrative Agent, acting for the Banks.
Until such amount is repaid to the Administrative Agent by such Bank or the
relevant Borrower, such advance shall be deemed for all purposes to be a
Revolving Credit Loan made by the Administrative Agent. The Administrative
Agent shall be entitled to recover from the Bank or such Borrower, as the case
may be, interest on the amount advanced by it for each day from the Borrowing
Date therefor until repaid to the Administrative Agent at a rate per annum
equal to (i) in the case of an amount recovered from any Bank, the Federal
Funds Rate or (ii) in the case of an amount recovered from a Borrower, the
higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 3.01. The failure of any Bank to make any Loan to be made
by it on any Borrowing Date shall not relieve any other Bank of its obligation,
if any, hereunder to make its Loan on such Borrowing Date, and neither the
Administrative Agent nor any other Bank shall be responsible for the failure by
such Bank to make the Loan to be made by such Bank on such Borrowing Date.
Section 2.03. Evidence for Loans. (a) Each Bank shall maintain, in
accordance with its customary and usual practice, accounts evidencing the
indebtedness of each Borrower to such Bank resulting from each Loan made by
such Bank from time to time, including an indication of the Applicable Lending
Office and the amounts of principal and interest payable and paid to such Bank
in respect of Loans.
19
(b) The Administrative Agent shall maintain, in accordance with its
customary and usual practice, at its address referred to in Section 11.06, a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of (i) the names of the Borrowers, (ii) the
amount of each Loan, whether such Loan is a Revolving Credit Loan or a
Competitive Advance Loan, the interest rate options, the Interest Period or
Maturity Date (if any) applicable thereto and the Borrower thereof, (iii) the
amount of any principal or interest due and payable or to become due and
payable from each Borrower to each Bank hereunder, (iv) the amount of any
payments received by the Administrative Agent hereunder from each Borrower and
each Bank's share thereof and (v) with respect to each Assignment and
Acceptance delivered to the Administrative Agent, the name and address of the
Assignee and the principal amount of each Loan owing to such Assignee. The
Register shall be available for inspection during ordinary business hours by
the Borrowers or any Bank or Assignee from time to time upon reasonable prior
notice to the Administrative Agent.
(c) The entries made in the Register and the foregoing accounts shall, to
the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the indebtedness of each Borrower therein recorded;
provided, however, that the failure of any Bank or the Administrative Agent to
maintain the Register or any such account, as applicable, or any error therein,
shall not in any manner affect the validity or enforceability of any obligation
of a Borrower to repay any Loan actually made to such Borrower by such Bank in
accordance with the terms of this Agreement. The entries in the Register
relating to assignments shall be conclusive, in the absence of clearly
demonstrable error, and the Borrowers, the Administrative Agent and the Banks
may treat each Person whose name is recorded in the Register as the owner of
the Loan recorded therein for all purposes of this Agreement.
(d) A Borrower's obligation to repay any Revolving Credit Loan or
Competitive Advance Loan that shall be assigned to a Federal Reserve Bank by a
Bank shall, to the extent requested by such Bank in order to effect such
assignment, be evidenced by one or more Notes, in substantially the form of
Exhibit B-1 (a "Revolving Credit Note") or Exhibit B-2 (a "Competitive Advance
Note"), as appropriate. A Revolving Credit Note shall be (i) in the principal
amount of the Loan or Loans so assigned and (ii) stated to mature on the
Termination Date and bear interest from its date until paid in full on the
principal balance (from time to time outstanding thereunder) payable at the
rates and in the manner provided herein. A Competitive Advance Note shall be
(i) in the principal amount of the Competitive Advance Loan made by such Bank
and so assigned, (ii) stated to mature on the Maturity Date for such
Competitive Advance Loan and bear interest from its date until paid in full on
the principal balance (from time to
20
time outstanding thereunder) payable at the rates and in the manner provided
herein and (iii) not prepayable by the Borrower.
Section 2.04. Increase of Commitment. API may from time to time, by notice
to the Administrative Agent (which shall promptly deliver a copy to each of the
Banks), request that the Total Commitment be increased by an amount that is not
less than $150,000,000 and will not result in the Total Commitment exceeding
$750,000,000. Each such notice shall set forth the requested amount of the
increase in the Total Commitment and the date on which such increase is to
become effective (which shall be not fewer than twenty days after the date of
such notice), and shall offer each Bank the opportunity to increase its
Commitment by its ratable share, based on the amounts of the Banks' Commitments
on the date of such notice, of the requested increase in the Total Commitment.
Each Bank shall, by notice to API and the Administrative Agent given not more
than ten Business Days after the date of API's notice, either agree to increase
its Commitment by all or a portion of the offered amount or decline to increase
its Commitment (and any Bank that does not deliver such a notice within such
period of ten Business Days shall be deemed to have declined to increase its
Commitment). In the event that, on the tenth Domestic Business Day after API
shall have delivered a notice pursuant to the first sentence of this paragraph,
the Banks shall have agreed pursuant to the preceding sentence to increase
their Commitments by an aggregate amount less than the increase in the Total
Commitment requested by API, API shall have the right to arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an "Augmenting Bank"), which may include any Bank, to
extend Commitments or increase their existing Commitments in an aggregate
amount equal to the unsubscribed amount, provided that each Augmenting Bank, if
not already a Bank hereunder, shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed) and shall execute all such documentation as the Administrative Agent
shall specify to evidence its status as a Bank hereunder. If (and only if)
Banks (including Augmenting Banks) shall have agreed to increase their
Commitments or to extend new Commitments in an aggregate amount not less than
$150,000,000, such increases and such new Commitments shall become effective on
the date specified in the notice delivered by API pursuant to the first
sentence of this Section. Notwithstanding the foregoing, no increase in the
Total Commitment (or in the Commitment of any Bank) shall become effective
under this paragraph unless, on the date of such increase, (i) the conditions
set forth in paragraphs (b) and (c) of Section 6.02 (including the condition
set forth in Section 6.02(c) insofar as it relates to representations and
warranties contained in Sections 5.01(d)(ii) and 5.01(e) which are otherwise
excluded in Section 6.02) shall be satisfied and the Administrative Agent shall
have received a certificate to that effect dated such date and executed by a
Responsible Officer of API or (ii) the Banks shall have waived the requirements
set forth in clause (i) of this sentence.
21
Section 2.05. Reduction of Commitments. API shall have the right, upon not
less than three Domestic Business Days' telephonic notice (promptly confirmed
in writing) from API to the Administrative Agent and, if the Total Commitment
is thereby to be reduced to zero, upon payment of the Facility Fee accrued to
(but excluding) the date of such reduction, to reduce the Total Commitment in
full or in part; provided, however, that the amount of any reduction in the
Total Commitment may not exceed the Available Facility (after giving effect to
any Loans being repaid or prepaid on the day of such reduction and any Loans to
be made on such day). Partial reductions of the Total Commitment shall be in
the amount of $10,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if the Available Facility is less than $10,000,000, then all of
such lesser amount). Subject to Section 2.04, all reductions of the Total
Commitment shall be permanent.
Section 2.06. Prepayment of Revolving Credit Loans. A Borrower shall have
the right, by giving telephonic notice (promptly confirmed in writing) to the
Administrative Agent by not later than 10:30 A.M., New York time, (i) on the
day of prepayment in the case of ABR Loans and (ii) on the third Eurodollar
Business Day prior to the day of prepayment in the case of Revolving Eurodollar
Loans, to prepay Revolving Credit Loans of such Borrower bearing interest on
the same basis and having the same Interest Period, if any, in whole or in
part, without premium or penalty, in the aggregate principal amount of
$10,000,000 or integral multiples of $1,000,000 in excess thereof (or, if the
outstanding aggregate principal amount of such Revolving Credit Loan is less
than $10,000,000, then all of such lesser amount), together with accrued
interest (except for ABR Loans, as to which such interest shall be paid on the
next date when it otherwise would be payable under 3.02) on the principal being
prepaid to (but excluding) the date of prepayment and, in the case of Revolving
Eurodollar Loans, the amounts required by Section 4.03. Subject to the terms
and conditions hereof, Revolving Credit Loans so prepaid may be reborrowed by
any Borrower.
Section 2.07. Competitive Advance Loans. (a) Prior to the Termination
Date, a Borrower may request that the Banks make offers to make Competitive
Advance Loans on the terms and conditions hereinafter set forth; provided,
however, that (i) the amount of Competitive Advance Loans that may be borrowed
on any Borrowing Date may not exceed the Available Facility (after giving
effect to any Loans to be repaid or prepaid on such Borrowing Date and any
other Loans to be made on such Borrowing Date), (ii) the aggregate amount of
Competitive Advance Loans which may be outstanding on any day may not exceed
the Total Commitment (after giving effect, with respect to any day, to any
Loans being repaid or prepaid on such day and any other Loans to be made on
such day), and (iii) such Borrower may not request Competitive Advance Loans
before the fifth Domestic Business Day after the Effective Date. Each Bank may,
but shall have
22
no obligation to, make such offers and a Borrower may, but shall have no
obligation to, accept any such offers, in the manner set forth in this Section
2.07.
(b) A Borrower may request Competitive Advance Loans under this Section
2.07 by a Competitive Advance Loan Request, in substantially the form of
Exhibit C-2, given to the Administrative Agent not later than the Competitive
Advance Notice Time therefor. The Competitive Advance Loan Request shall
indicate whether the solicitation of Competitive Advance Bids shall be
conducted by the Administrative Agent in New York or in London. The
Administrative Agent shall promptly notify each Bank, by a letter in
substantially the form of Exhibit C-3, of each Competitive Advance Loan Request
received by it from a Borrower and of the terms contained therein.
(c) Each Bank may, if it elects so to do, irrevocably offer to make a
Competitive Advance Loan of the requested type to the requesting Borrower at a
Competitive Advance Bid Rate or Rates, as specified by such Bank in accordance
with the related Competitive Advance Loan Request, by submitting to the
Administrative Agent (which shall give prompt notice thereof to such Borrower)
a Competitive Advance Bid, in substantially the form of Exhibit C-4, before the
Competitive Advance Bid Deadline, of the maximum and minimum principal amounts
of the Competitive Advance Loan which such Bank would be willing to make (which
amount may, subject to the proviso to the first sentence of Section 2.07(a),
exceed such Bank's Commitment, but shall be in a principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof), the rate
or rates of interest therefor or the applicable margin over LIBOR for the
relevant Interest Period, as the case may be, and any other terms and
conditions required by such Bank. If any Bank shall fail to submit a
Competitive Advance Bid to the Administrative Agent before the Competitive
Advance Bid Deadline, then such Bank shall be deemed to have elected not to
make an offer to make a Competitive Advance Loan. If a Bank submits a
Competitive Advance Bid pursuant to this Section 2.07 specifying that such Bank
is waiving the right to claim compensation under Section 3.03(c), 4.04(a) or
4.04(b), such Bank shall be deemed to have waived the right to claim such
compensation under such Section 3.03(c), 4.04(a) or 4.04(b) in connection with
any Competitive Advance Loan or Loans thereafter made by such Bank pursuant to
such Competitive Advance Bid; and the Borrower shall be entitled to make a
reasonable determination that a Competitive Advance Bid in which a Bank has
waived the right to any such compensation is made at a Competitive Advance Bid
Rate lower than an otherwise identical or lower Competitive Advance Bid
including no such waiver. The Administrative Agent shall (i) disclose the
Competitive Advance Bids received to the relevant Borrower as promptly as
reasonably practicable after the Bid Deadline, (ii) maintain all Competitive
Advance Bids in confidence until each of them has been disclosed to such
Borrower and (iii) provide copies of all
23
Competitive Advance Bids to the relevant Borrower as soon as practicable after
completion of the bidding process set forth in this Section 2.07.
(d) A Borrower that made a Competitive Advance Loan Request shall, before
the Competitive Advance Accept/ Reject Deadline, either
(i) cancel the Competitive Advance Loan Request by giving the
Administrative Agent notice to that effect, or
(ii) accept one or more Competitive Advance Bids, in its sole
discretion, by giving notice in substantially the form of Exhibit C-5 (a
"Competitive Advance Accept/Reject Notice") to the Administrative Agent of
the principal amount of each Competitive Advance Loan (which principal
amount shall be equal to or greater than the minimum amount offered by
such Bank and equal to or less than the maximum amount offered by such
Bank for such Competitive Advance Loan pursuant to Section 2.07(c)) to be
made by the Bank or Banks that made such Competitive Advance Bid or Bids,
and reject any remaining Competitive Advance Bids, by giving the
Administrative Agent notice to that effect; provided that the aggregate
principal amount of such Competitive Advance Bids accepted by such
Borrower shall be in a principal amount equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof; and provided further that (A)
the failure by such Borrower to give such notice in a timely fashion shall
be deemed to be a rejection of all Competitive Advance Bids, (B) such
Borrower shall not accept a Competitive Advance Bid made at a Competitive
Advance Bid Rate if such Borrower has rejected a Competitive Advance Bid
made at a lower Competitive Advance Bid Rate, (C) the aggregate principal
amount of the Competitive Advance Bids accepted by such Borrower shall not
exceed the principal amount specified in the related Competitive Advance
Loan Request, (D) if such Borrower shall accept a Competitive Advance Bid
made at a particular Competitive Advance Bid Rate but the amount of such
Competitive Advance Bid shall cause the total amount of Competitive
Advance Bids accepted by the Borrower to exceed the amount specified in
the Competitive Advance Loan Request, then such Borrower shall
(notwithstanding the minimum bid acceptance amount required by clause (F)
below) accept a portion of such Competitive Advance Bid in an amount equal
to the amount specified in the Competitive Advance Loan Request less the
amount of all other Competitive Advance Bids accepted with respect to such
Competitive Advance Loan Request, (E) if such Borrower shall accept
Competitive Advance Bids made at a particular Competitive Advance Bid Rate
but shall be restricted by other conditions hereof from borrowing the
principal
24
amount of Competitive Advance Loans specified in such Competitive Advance
Loan Request in respect of which Competitive Advance Bids at such
Competitive Advance Bid Rate have been made or if such Borrower shall
accept Competitive Advance Bids made at a particular Competitive Advance
Bid Rate but the aggregate amount of Competitive Advance Bids made at such
Competitive Advance Bid Rate shall exceed the amount specified in the
Competitive Advance Loan Request, then such Borrower shall accept a pro
rata portion of each Competitive Advance Bid made at such Competitive
Advance Bid Rate aggregating the portion of Competitive Advance Loans with
respect to which Competitive Advance Bids at such Competitive Advance Bid
Rate have been received (provided further that if the principal amount of
Competitive Advance Loans to be so allocated is not sufficient to enable
Competitive Advance Loans to be so allocated to each such Bank in a
principal amount equal to $5,000,000 or an integral multiple of $1,000,000
in excess thereof such Borrower shall select the Banks to be allocated
such Competitive Advance Loans in a principal amount equal to not less
than $5,000,000 but may round up allocations to the next higher integral
multiple of $1,000,000 if necessary) and (F) except as provided in clauses
(D) and (E) above, no Competitive Advance Bid shall be accepted for a
Competitive Advance Loan unless such Competitive Advance Loan is in a
principal amount equal to $5,000,000 or an integral multiple of $1,000,000
in excess thereof.
(e) If the Borrower that made a Competitive Advance Loan Request notifies
the Administrative Agent that such Competitive Advance Loan Request is
cancelled in accordance with Section 2.07(d)(i), the Administrative Agent shall
give prompt notice thereof to the Banks.
(f) If the Borrower that made a Competitive Advance Loan Request accepts
one or more Competitive Advance Bids, the Administrative Agent shall promptly
give notice (i) to each Bank that submitted a Competitive Advance Bid of the
date and aggregate amount of such Competitive Advance Loan(s) and whether or
not any Competitive Advance Bid made by such Bank has been accepted by the
Borrower, (ii) to each Bank whose Competitive Advance Bid, or any portion
thereof, has been accepted by the Borrower, of the amount of the Competitive
Advance Loan to be made by such Bank and the date for repayment thereof,
together with the Competitive Advance Rate or Competitive Advance Margin, as
applicable, and any other terms applicable to such Competitive Advance Loan and
(iii) to each Bank of the principal amounts and Competitive Advance Bid Rates
specified in each of the Competitive Advance Bids submitted in response to the
related Competitive Advance Loan Request.
25
(g) Following any acceptance by the Borrower and notification by the
Administrative Agent pursuant to clause (f) above, and upon satisfaction or
waiver of the conditions precedent contained in Article 6 applicable thereto,
each such Bank shall disburse to such Borrower on the specified Borrowing Date
Competitive Advance Loans in the aggregate amount accepted by such Borrower, in
the manner and subject to the same terms and conditions set forth in Section
2.02(c) with respect to ABR Loans, mutatis mutandis.
(h) Nothing in this Section 2.07 shall be construed as a right of first
offer in favor of the Banks or to otherwise limit the ability of a Borrower to
request and accept credit facilities from any Person (including any Bank).
Section 2.08. Purpose of Loans. The proceeds of the Revolving Credit Loans
will be used for general corporate purposes, which shall include the use
thereof, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of funding or making payments on account of the purchase or
redemption by API of any shares of capital stock of API or any related option,
warrant or similar right.
ARTICLE 3
Interest, Conversion, Fees, Etc
Section 3.01. Procedure for Interest Rate Determination. (a) Unless a
Borrower shall request in a Revolving Credit Loan Request or in a Conversion
Request that its Revolving Credit Loans, or portions thereof, bear interest as
Revolving Eurodollar Loans, such Borrower's Revolving Credit Loans shall bear
interest as ABR Loans.
(b) Each Competitive Advance Loan shall bear interest on the basis, or at
the rate per annum, determined pursuant to Section 2.07 and Section 3.03 or
3.04, as appropriate.
Section 3.02. Interest on ABR Loans. Each ABR Loan shall bear interest
from the date of such ABR Loan until paid in full, or (if converted into a
Revolving Eurodollar Loan) to (but excluding) the first day of the relevant
Interest Period, payable in arrears on the last day of each calendar quarter,
commencing with the first such date after the date hereof, and on the date such
Loan is repaid, at a rate per annum (on the basis of (i) a 365-day year (366
days in the case of a leap year) if the Base Rate is calculated based on the
prime rate and (ii) a 360-day year if the Base Rate is calculated based on the
Federal Funds Rate, for the actual
26
number of days involved) equal to the Base Rate in effect from time to time,
which rate shall change as and when said Base Rate shall change.
Section 3.03. Interest on Revolving Eurodollar Loans and Competitive
Eurodollar Loans. (a) Each Revolving Eurodollar Loan and each Competitive
Eurodollar Loan shall bear interest from the date of such Loan to (but
excluding) the last day of the relevant Interest Period, or (if earlier) to
(but excluding) the Termination Date (in the case of a Revolving Eurodollar
Loan) or the Maturity Date (in the case of a Competitive Eurodollar Loan),
payable in arrears (A) with respect to Interest Periods of three months or
less, on the last day of such Interest Period, and (B) with respect to Interest
Periods longer than three months, on the date which occurs three months after
the first day of such Interest Period and on the last day of such Interest
Period, at a rate per annum (on the basis of a 360-day year for the actual
number of days involved, with respect to each Interest Period, equal to the sum
of (i) the Revolving Eurodollar Margin, in the case of a Revolving Eurodollar
Loan, or the Competitive Advance Margin, in the case of a Competitive
Eurodollar Loan, and (ii) LIBOR.
(b) The Interest Period for each Revolving Eurodollar Loan shall be
selected by the relevant Borrower at least three Eurodollar Business Days prior
to the beginning of such Interest Period. If such Borrower fails to notify the
Administrative Agent of the Interest Period for a subsequent Revolving
Eurodollar Loan at least three Eurodollar Business Days prior to the last day
of the then current Interest Period of an outstanding Revolving Eurodollar
Loan, then such outstanding Revolving Eurodollar Loan shall become an ABR Loan
at the end of such current Interest Period.
(c) For so long as any Bank maintains reserves against "Eurocurrency
Liabilities" pursuant to Regulation D of the Federal Reserve Board (or any
successor regulation), each Borrower shall, subject to the two next succeeding
sentences, contemporaneously with the related interest payments, pay additional
interest on each Eurodollar Loan of such Bank at a rate per annum up to but not
exceeding the excess of (i) (A) LIBOR divided by (B) one minus the Eurodollar
Reserve Percentage over (ii) LIBOR. Each Bank shall promptly notify API, with a
copy to the Administrative Agent, upon becoming aware that any Borrower may be
required to make a payment pursuant to this Section 3.03(c). When requesting
payment pursuant to this Section 3.03(c), each Bank shall provide to API, with
a copy to the Administrative Agent, a certificate, signed by an officer of such
Bank, setting forth, in reasonable detail, the basis of such claim, the amount
required to be paid by the Borrower to such Bank and the computations made by
such Bank to determine such amount. Absent demonstrable error, such certificate
shall be binding as to the amounts of additional interest owing in respect of
such Bank's Eurodollar Loans.
27
Section 3.04. Interest on Competitive Absolute Rate Loans. Each
Competitive Absolute Rate Loan shall bear interest from the date of such
Competitive Absolute Rate Loan to (but excluding) its Maturity Date, payable in
arrears on the date such Loan is repaid, at a rate per annum (on the basis of a
360- day year for the actual number of days involved) equal to the Competitive
Advance Rate applicable to such Competitive Absolute Rate Loan.
Section 3.05. Continuation and Conversion of Revolving Credit Loans. (a) A
Borrower may request, by telephonic notice to the Administrative Agent of a
Conversion Request, confirmed in writing in substantially the form of Exhibit D
by no later than 4:00 P.M., New York time, on the same day, in advance of the
requested Conversion Date as provided in the definition of "Conversion
Request", that:
(i) all the outstanding ABR Loans of such Borrower, or a portion
thereof in an aggregate amount equal to $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, be converted into a Revolving
Eurodollar Loan on the requested Conversion Date; or
(ii) all the Revolving Eurodollar Loans of such Borrower having the
same Interest Period, or a portion thereof in an aggregate amount equal to
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, be
converted into ABR Loans on the requested Conversion Date.
(b) Upon receipt of any such Conversion Request from a Borrower, the
Administrative Agent shall forthwith give notice to each Bank of the substance
thereof. Effective on such Conversion Date and upon payment by such Borrower of
the amounts, if any, required by Section 4.03, the Revolving Credit Loans or
portions thereof as to which the Conversion Request was made shall commence to
accrue interest as set forth in this Article 3 for the type of interest rate
and, in the case of a conversion of ABR Loans into Revolving Eurodollar Loans,
Interest Period selected by such Borrower.
Section 3.06. Post-Maturity Interest. After maturity (whether by
acceleration or otherwise) of any Loan, such Loan shall bear interest, payable
on demand, at a rate per annum equal to the sum of (i) 2% plus (ii) the Base
Rate in effect from time to time.
Section 3.07. Maximum Interest Rate. (a) Nothing in this Agreement or any
other Credit Document shall require a Borrower to pay interest at a rate
exceeding the maximum rate permitted by applicable law. Neither this Section
nor Section 11.01 is intended to limit the rate of interest payable for the
account of
28
any Bank to the maximum rate permitted by the laws of the State of New York (or
any other applicable law) if a higher rate is permitted with respect to such
Bank by supervening provisions of U.S. federal law.
(b) If the amount of interest payable by a Borrower for the account of any
Bank on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to this Article III, would
exceed the maximum amount permitted by applicable law to be charged by such
Bank, the amount of interest payable for its account on such interest payment
date shall automatically be reduced to such maximum permissible amount.
Section 3.08. Fees. (a) The Borrowers, jointly and severally, agree to
pay, in arrears on each Fee Payment Date, to the Administrative Agent for the
account of the Banks, a fee (the "Facility Fee") for each day during the
quarterly period (or shorter period commencing on the Effective Date or ending
on the Termination Date) ending on the Business Day immediately preceding such
Fee Payment Date computed by applying the applicable percentages per annum set
forth below based on the ratings on such day of API's senior unsecured
long-term debt (each range of ratings listed under any Level being inclusive of
the ratings so listed) to the amount of the Total Commitment on such day:
Facility Fee Percentage Per Annum
Level I
▇▇▇▇▇'▇: A1 or above
S&P: A+ or above 0.0700%
Level II
▇▇▇▇▇'▇: A2
S&P: A 0.0800%
Level III
▇▇▇▇▇'▇: A3
S&P: A- 0.0900%
Level IV
▇▇▇▇▇'▇: Baa1/Baa2
S&P: BBB+/BBB 0.1250%
Level V
▇▇▇▇▇'▇: Baa3 or below
S&P: BBB- or below 0.1750%
29
(b) The Borrowers, jointly and severally, agree to pay, in arrears on each
Fee Payment Date, to the Administrative Agent for the account of the Banks, a
fee (the "Utilization Fee") for each day during the quarterly period (or
shorter period commencing on the Effective Date or ending on the Termination
Date) ending on the Business Day immediately preceding such Fee Payment Date on
which the aggregate outstanding principal amount of the Loans exceeds 50% of
the Total Commitment on such day computed by applying the applicable
percentages per annum set forth below based on the ratings on such day of API's
senior unsecured long-term debt (each range of ratings listed under any Level
being inclusive of the ratings so listed) to the aggregate principal amount of
the Loans outstanding on such day:
Utilization Fee Percentage Per
Annum
Level I
▇▇▇▇▇'▇: A1 or above
S&P: A+ or above 0.0500%
Level II
▇▇▇▇▇'▇: A2
S&P: A 0.0750%
Level III
▇▇▇▇▇'▇: A3
S&P: A- 0.1000%
Level IV
▇▇▇▇▇'▇: Baa1/Baa2
S&P: BBB+/BBB 0.1250%
Level V
▇▇▇▇▇'▇: Baa3 or below
S&P: BBB- or below 0.1250%
(c) For purposes of Sections 3.08(a)and 3.08(b), (i) if no rating for
API's senior unsecured long-term debt shall be available from either rating
agency, such rating agency shall be deemed to have established a Level V
rating, (ii) if the ratings established or deemed established by ▇▇▇▇▇'▇ and
S&P shall fall within different Levels, the Facility Fee and Utilization Fee
shall be based upon the Level corresponding to the more favorable of such
ratings and (iii) if any rating established or deemed established by ▇▇▇▇▇'▇ or
S&P shall be changed (other than as a result of a change in the rating system
of either ▇▇▇▇▇'▇ or S&P), such change shall be given effect on and as of the
opening of business on the date when such change is first announced by the
rating agency making such change. If the
30
rating system of either ▇▇▇▇▇'▇ or S&P shall change prior to the Termination
Date, API and the Banks shall negotiate in good faith to amend the references
to specific ratings in this Section 3.08 to reflect such changed rating system.
(d) Each of the Facility Fee and Utilization Fee shall be computed based
on a 365-day year (366 days in the case of a leap year), for the actual number
of days involved.
ARTICLE 4
Disbursement and Payment
Section 4.01. Disbursement of Loans; Pro Rata Treatment of Banks. (a) ABR
Loans shall be made by each Bank from its ABR Lending Office.
(b) Eurodollar Loans shall be made by each Bank from its Eurodollar
Lending Office.
(c) Each payment of a Facility Fee or Utilization Fee, each reduction of
the Total Commitment and, except as expressly provided otherwise in this
Agreement, each payment of principal of or interest on Revolving Credit Loans
shall be apportioned among the Banks in proportion to each Bank's Pro Rata
Share.
Section 4.02. Method of Payment. (a) All payments of principal of and
interest on the Loans and of fees hereunder shall be payable in Dollars.
(b) All payments to be made by the Borrowers hereunder shall be made not
later than 2:00 P.M., New York time, on the date when due, in Federal or other
funds immediately available in New York City, to the Administrative Agent at
its office referred to in Section 11.06 hereof.
(c) Whenever any payment of principal of, or interest on, ABR Loans or
Competitive Absolute Rate Loans, or fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, Eurodollar Loans shall be due on a day which is not a Eurodollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case the date for payment thereof shall be the
next preceding Eurodollar Business Day. If the date for any payment of
principal
31
is extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
(d) Unless the Administrative Agent shall have received notice from the
relevant Borrower prior to the date on which any payment is due to the Banks
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, but shall not be obligated to, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent that such Borrower shall not have so made
such payment, each Bank shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(e) Any and all payments made by a Borrower to the Administrative Agent or
the Banks hereunder shall be made without right of set-off, counterclaim or
other defenses.
(f) The Administrative Agent will promptly cause any payments received by
it to be distributed to each Bank for whose account payment has been made in
like funds.
Section 4.03. Compensation for Losses. (a) Compensation. If (i) a Borrower
makes a prepayment of a Revolving Eurodollar Loan under Section 2.06 (other
than a prepayment to a Bank to which Additional Costs or Additional Amounts may
be due that has not complied with its obligations under Section 4.04(c)), or a
Conversion Date selected by a Borrower pursuant to Section 3.05 for the
conversion of Eurodollar Loans, or portions thereof, falls on a day other than
the last day of the Interest Period for the amount so converted, (ii) a
Borrower revokes any Borrowing Request for a Eurodollar Loan or any Eurodollar
Loan or Competitive Advance Loan requested is not made because of the failure
of the applicable conditions precedent specified in Section 6.02 to be
satisfied, (iii) an outstanding Eurodollar Loan, or any portion thereof, is
converted into an ABR Loan pursuant to Section 4.05 on any day other than the
last day of the Interest Period applicable thereto or (iv) a Eurodollar Loan or
Competitive Advance Loan shall be declared to be due and payable prior to the
scheduled maturity thereof pursuant to Section 8.01 on any day other than the
last day of the Interest Period applicable thereto, then, subject to Section
4.03(b) and without duplication of any amounts described in Section 3.03(c) or
4.04, the relevant Borrower shall be obligated to pay to the relevant Bank an
amount that will compensate such Bank for any loss or premium, penalty or
expense incurred by such Bank as a result of
32
such prepayment, conversion, failure to borrow, declaration or revocation of
notice in respect of funds obtained for the purpose of making or maintaining
such Eurodollar Loan or Competitive Advance Loan, or any portion thereof (other
than loss of margin after the date of such prepayment, conversion, failure to
borrow, declaration or revocation of notice). Such compensation may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so paid or prepaid, or not borrowed or converted,
for the period from the date of such payment or prepayment or conversion or
failure to borrow to the last day of such Interest Period (or, in the case of a
failure to borrow, the Interest Period that would have commenced on the date of
such failure to borrow) in each case at the applicable rate of interest for
such Loan provided for herein (excluding, however, any margin included therein)
over (ii) the amount of interest (as determined in good faith by such Bank)
that would have accrued to such Bank on such amount by placing such amount on
deposit for a comparable period with leading banks in the relevant interbank
market.
(b) Certificate, Etc. Each Bank shall promptly notify API, with a copy to
the Administrative Agent, upon becoming aware that any Borrower may be required
to make any payment pursuant to this Section 4.03. When requesting payment
pursuant to this Section 4.03, such Bank shall provide to API, with a copy to
the Administrative Agent, a certificate, signed by an officer of such Bank,
setting forth in reasonable detail the amount required to be paid by the
Borrowers to such Bank and the computations made by such Bank to determine such
amount. The applicable Borrower shall have a 30-day period following the
receipt of such certificate (if such Borrower in good faith disagrees with the
assertion that any payment under this Section 4.03 is due or with the amount
shown as due on such certificate and so notifies such Bank of such disagreement
within five Business Days following receipt of such certificate) to negotiate
with such Bank, which negotiations shall be conducted by the respective parties
in good faith, and to agree upon another amount that will adequately compensate
such Bank, it being expressly understood that if such Borrower does not provide
the required notice of its disagreement as provided above, then such Borrower
shall pay the amount shown as due on the certificate on the tenth Business Day
following receipt thereof and further if such Borrower does provide such
required notice, and negotiations are entered into in good faith but do not
result in agreement by such Borrower and such Bank within the 30-day period,
then such Borrower shall pay the amount shown as due on the certificate on the
last day of such period.
Section 4.04. Withholding, Reserves and Additional Costs. (a) Withholding.
(i) All payments payable under this Agreement to a Bank (including payments of
principal of and interest on Loans) shall be made to such Bank free and clear
of any and all present and future taxes, levies, imposts, duties, deductions,
withholdings, fees, liabilities and similar charges other than Excluded
33
Taxes ("Taxes"). If any Taxes are required to be withheld or deducted from any
amount payable by a Borrower under this Agreement, then the amount so payable
under this Agreement shall be increased to the amount which, after deduction
from such increased amount of all Taxes required to be withheld or deducted
therefrom (the amount of such increase, an "Additional Amount"), will yield to
such Bank the amount stated to be payable under this Agreement. The relevant
Borrower shall execute and deliver to any Bank upon its request such further
instruments as may be necessary or desirable to give full force and effect to
any such increase. The relevant Borrower shall also hold each Bank harmless and
indemnify it for any stamp or other taxes with respect to the preparation,
execution, delivery, recording, performance or enforcement of the Credit
Documents (all of which shall be included within "Taxes"). If any of the Taxes
specified in this Section 4.04(a) are paid by a Bank, the relevant Borrower
shall, upon demand of such Bank, promptly reimburse such Bank for such
payments, together with any interest, penalties and expenses incurred in
connection herewith. Each Borrower shall deliver to the Administrative Agent
certificates or other valid vouchers for all Taxes or other charges deducted
from or paid with respect to payments made by such Borrower hereunder.
Notwithstanding the foregoing, the Borrowers shall be entitled, to the extent
required to do so by law, to deduct or withhold (and shall not be required to
make payments as otherwise required by this Section 4.04 on account of such
deductions or withholdings) income or other similar taxes imposed by the United
States of America from interest, fees or other amounts payable hereunder for
the account of any Bank other than a Bank (i) that is a U.S. Person for U.S.
federal income tax purposes or (ii) that has the Prescribed Forms on file with
the Borrowers for the applicable year to the extent deduction or withholding of
such taxes is not required as a result of such filing of such Prescribed Forms
(unless the failure to leave such forms on file results from a change in law or
regulation or in the interpretation thereof by any court or administrative or
Governmental Authority charged with the administration thereof subsequent to
the date hereof); provided that if a Borrower shall so deduct or withhold any
such taxes, such Borrower shall provide a statement to the Administrative Agent
and such Bank, setting forth the amount of such taxes so deducted or withheld,
the applicable rate and any other information or documentation which such Bank
may reasonably request for assisting such Bank to obtain any allowable credits
or deductions for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Bank is subject to tax.
(ii) If any Bank has received or been granted a credit against or
relief or remission for, or refund or repayment of, any Tax paid or
payable by it in respect of or which takes account of any Tax with respect
to which an Additional Amount was paid by a Borrower (an "Indemnified
Tax") or other matter giving rise to such payment, such Bank shall, to the
extent it determines in good faith that it can do so without prejudice to
the retention
34
of the amount of such credit, relief, remission, refund or repayment, pay
to such Borrower such amount as such Bank shall determine in good faith to
be attributable to such Indemnified Tax or other matter and which will
leave such Bank (after such payment to the Borrower) in a position no
better or worse than it would have been in had such Borrower not been
required to deduct or withhold such Indemnified Tax or such other matter
had not arisen; provided that such Borrower upon the written request of
such Bank, shall return to such Bank the amount of any such refund,
repayment or benefit of credit in the event that such Bank is required to
repay such amount to the relevant Governmental Authority.
(b) Additional Costs. (i) Without duplication of any amounts payable
described in Section 3.03(c), 4.04(a) or 4.04(b)(ii), if after the date hereof
there shall have occurred any change in any law or regulation or in the
interpretation thereof by any court or Governmental Authority charged with the
administration thereof or the enactment of any law or regulation shall either
(A) impose, modify or deem applicable any reserve, special deposit or similar
requirement with respect to any Bank's Commitment or its Revolving Eurodollar
Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans, (B) subject
such Bank to any duty or other charge with respect to any of its Revolving
Eurodollar Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans
or its obligations to make Revolving Eurodollar Loans or (C) impose on such
Bank any other condition regarding this Agreement, its Commitment to make
Revolving Eurodollar Loans or its Revolving Eurodollar Loans or (subject to
Section 2.07(c)) Competitive Eurodollar Loans and the result of any event
referred to in clause (A), (B) or (C) shall be to increase the cost
("Additional Costs") to such Bank of maintaining its Commitment to make
Revolving Eurodollar Loans or making or maintaining its Revolving Eurodollar
Loans or (subject to Section 2.07(c)) Competitive Eurodollar Loans or shall
reduce the amounts received or receivable hereunder (which Additional Costs
shall be calculated by such Bank in good faith in accordance with each Bank's
internal policies, including any reasonable averaging and attribution methods)
by an amount which such Bank in good faith shall determine to be material,
then, subject to Sections 4.04(c) and (d), the relevant Borrower shall pay to
such Bank an amount equal to such Additional Costs.
(ii) Without duplication of any amounts described in Section 3.03(c),
4.04(a) or 4.04(b)(i), if after the date hereof the adoption of any
applicable law, rule, regulation or guideline 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 or instrumentality charged with the interpretation or
administration thereof, or compliance by such Bank with any request or
35
directive regarding capital adequacy (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency
or instrumentality, has or would have the effect of reducing the rate of
return on capital for such Bank or any corporation controlling such Bank
as a consequence of its obligations under this Agreement to a level below
that which such Bank shall determine in good faith that reasonably could
have been achieved but for such adoption, change or compliance (taking
into consideration such Bank's or such corporation's policies with respect
to capital adequacy), then from time to time, subject to Sections 4.04(c)
and (d), the relevant Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction.
(c) Mitigation. If, with respect to a Bank, a condition arises or an event
occurs after the date hereof that would, or would upon the giving of notice,
result in the payment of any Additional Costs or Additional Amounts pursuant to
this Section 4.04 or the delivery by such Bank of any notice described in the
first sentence of Section 4.05, then such Bank, promptly upon becoming aware of
the same, shall notify API (with a copy to the Administrative Agent) thereof
and at API's request shall take such steps as may be available to it and
acceptable to the Borrowers to mitigate the effects of such condition or event
(which shall include efforts to book the Loans held by such Bank hereunder at
another lending office of such Bank); provided that such Bank shall be under no
obligation to take any step that, in its good faith judgment, would result in
its incurring any Additional Costs, additional Taxes or other additional costs
in performing its obligations hereunder (unless the Borrower has agreed to
reimburse it for the same) or would, in the good faith judgment of such Bank,
be materially disadvantageous to such Bank.
(d) Certificate, Etc. Each Bank shall promptly notify API, with a copy to
the Administrative Agent, upon becoming aware that the Borrowers may be
required to make any payment pursuant to this Section 4.04. When requesting
payment pursuant to this Section 4.04, a Bank shall provide to API, with a copy
to the Administrative Agent, a certificate, signed by an officer of such Bank
specifying the event giving rise to such claim and setting forth, in reasonable
detail, the basis of such claim, the amount required to be paid by each
Borrower to such Bank and the computations made by such Bank to determine such
amount. Anything herein notwithstanding, no Bank shall have the right to demand
payment of Additional Amounts or compensation for Additional Costs or a reduced
rate of return under this Section 4.04 (i) with respect to any period more than
180 days prior to the date it has made a demand pursuant to this Section 4.04,
(ii) to the extent that such Bank determines in good faith that the interest
rate or margin on the relevant Loans appropriately accounts for any Additional
Costs, (iii) unless demand thereunder is made in accordance with a policy of
the Bank being applied
36
in good faith to all borrowers similarly situated and (iv) with respect to any
Competitive Eurodollar Loan if it shall have obtained actual knowledge of the
change giving rise to such request at the time of submission of such Bank's
Competitive Advance Bid pursuant to which such Competitive Eurodollar Loan
shall have been made, unless notice of such Bank's entitlement to such
compensation shall have been furnished to the relevant Borrower at or prior to
such time.
(e) Prescribed Forms. Each Bank that is not incorporated under the laws of
the United States of America or a state thereof agrees that it will, to the
extent it has not previously done so, deliver to API or the Administrative
Agent (and if to the latter, the Administrative Agent agrees that it will
deliver to API) two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, or successor applicable form, as the case may
be, certifying that such Bank or Administrative Agent is entitled to receive
payments under this Agreement and under the Notes without deduction or
withholding of any United States federal income taxes. Each Bank further
undertakes to deliver to API or the Administrative Agent (and if to the latter,
the Administrative Agent agrees that it will deliver to API) (i) two further
duly completed copies of the said Form W-8BEN or W-8ECI, or successor
applicable forms, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it, and such extensions
or renewals thereof as may reasonably be requested by a Borrower, certifying
that such Bank or Administrative Agent is entitled to receive payments under
this Agreement and under any Notes without deduction or withholding of any
United States federal income taxes, unless in any such cases an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent a
Bank from duly completing and delivering any such form with respect to it and
such Bank advises API or the Administrative Agent (and the Administrative Agent
agrees that it will advise API) that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax and
(ii) two duly completed copies of any other form or certification that may
become applicable to such Bank certifying that such Bank or Administrative
Agent is entitled to receive payments under this Agreement and under any Notes
without deduction or withholding of any United States federal income taxes.
Section 4.05. Unavailability and Impracticability. If, after the date
hereof, a Bank shall have determined in good faith that the making or
maintenance of all or any part of such Bank's Eurodollar Loans has been made
(i) unlawful because of compliance by such Bank with any law or guideline or
interpretation or administration thereof by any official body charged with the
37
interpretation or administration thereof, in each case issued after the date
hereof, or with any request or directive made after the date hereof of such
body (whether or not having the effect of law) or (ii) impracticable because
deposits in Dollars in the amounts and requested maturities of such Loans are
not available to the Bank in the applicable interbank market, then the
Administrative Agent, upon receipt of written notice of such determination by
such Bank, shall forthwith advise the other Banks and API thereof. After the
date specified in such notice and until such time as the Administrative Agent,
upon receipt of written notice to it by such Bank, shall notify API and the
other Banks that the circumstances specified by it in such notice no longer
apply, then notwithstanding any other provision of this Agreement:
(i) the Eurodollar Loans of such Bank shall automatically be
converted to ABR Loans, without any requirement of compliance by the
Borrowers with Section 3.05, 4.03 or 4.04, on (x) the last day of the
outstanding Interest Period or Periods applicable thereto, unless awaiting
such date is unlawful or (y) if awaiting such date is unlawful,
immediately upon the receipt by the applicable Borrower of such notice;
(ii) the obligation of such Bank to make, convert ABR Loans into, or
continue for an additional Interest Period, Revolving Eurodollar Loans
shall be suspended, and, if the Borrower shall request in a Revolving
Credit Loan Request or Conversion Request that such Bank make a Revolving
Eurodollar Loan, the Loan requested to be made by such Bank shall instead
be made as an ABR Loan; and
(iii) such Bank shall not submit any Competitive Advance Bid with
respect to Competitive Eurodollar Loans.
Such Bank shall promptly notify the Administrative Agent, which thereupon shall
promptly notify API, when such specified circumstances no longer apply.
Section 4.06. Substitution of Banks. If any Bank (a) shall request any
compensation or indemnity under Section 4.03 or 4.04, (b) shall give any notice
described in the first sentence of Section 4.05 or (c) shall become a Non-
Consenting Bank, the Borrowers shall have the right to require such Bank to
assign all its interests, rights and obligations under this Agreement to
another Bank or financial institution identified by the Borrowers with the
assistance of the Administrative Agent (and the Administrative Agent agrees to
use its reasonable efforts so to assist the Borrowers); provided, however, that
(i) such assignment shall not conflict with any applicable statute, law, rule,
regulation, order or decree of any Governmental Authority and (ii) the
assigning Bank shall have received from the Borrowers and/or such assignee full
payment of the principal of all then-
38
outstanding Loans made by such Bank hereunder, together with accrued and unpaid
interest thereon, and (provided that such Bank has complied with its
obligations under Section 4.04(c)) all other amounts owed to it hereunder.
ARTICLE 5
Representations and Warranties
Section 5.01. Representations and Warranties of the Borrowers. The
Borrowers severally represent and warrant that:
(a) Corporate Existence and Power. Each Borrower has been duly organized
and is validly existing and, to the extent applicable, in good standing under
the laws of its jurisdiction of organization, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as presently conducted.
(b) Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each Borrower of each of the Credit
Documents to which such Borrower is a party are within the corporate powers of
such Borrower and have been duly authorized by all necessary corporate action
of such Borrower, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene in any material
respect, or constitute a material default under, any provision of applicable
law or regulation or of the certificate of incorporation or by-laws (or similar
constitutive instruments) of such Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Borrower or
result in the creation or imposition of any material Lien on any asset of any
Borrower or any Material Subsidiary.
(c) Binding Effect. This Agreement constitutes a valid and binding
agreement of each Borrower, and each Note will constitute a valid and binding
obligation of the Borrower party to such Note when executed and delivered by
such Borrower in accordance with this Agreement, in each case enforceable in
accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws relating
to or affecting creditors' rights generally, and to general equity principles,
regardless of whether considered in a proceeding in equity or at law.
(d) Financial Information. (i) Except for changes therein, if any, arising
in connection with the Disclosed SEC Investigation, the consolidated balance
sheet of API and its Consolidated Subsidiaries as of December 31, 2000 and the
39
related consolidated statements of income, cash flows and changes in
shareholders' equity for the fiscal year then ended, reported on by
PricewaterhouseCoopers LLP and filed with the SEC in API's Annual Report on
Form 10-K for the fiscal year ended December 31, 2000, copies of which have
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of API and its Consolidated Subsidiaries as
of such date and its consolidated income and cash flows and changes in
shareholder's equity for such fiscal year.
(ii) As of the date hereof, there has been no material adverse change
since December 31, 2000 in the business, consolidated financial position
or consolidated results of operations of API and its Consolidated
Subsidiaries, considered as a whole.
(e) Litigation. Except as disclosed in the reports or financial statements
referred to in Section 5.01(d) or in Schedule 5.01(e), as of the date hereof,
there is no action, suit or proceeding pending, or to the knowledge of API or
ACC threatened, against API or any Subsidiary in which there is a reasonable
possibility of an adverse decision which would be reasonably likely to
materially and adversely affect the business, consolidated financial position
or consolidated results of operations of API and its Consolidated Subsidiaries,
considered as a whole, or in any manner seeks to avoid the obligations of any
Borrower to repay Loans or of API under the guaranty set forth in Article 10.
As of the date hereof, there is no reasonably likely outcome of the Disclosed
SEC Investigation that would materially and adversely affect the ability of API
to pay the principal of and interest on the Loans as and when they become due.
(f) Compliance with ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance with the presently applicable
provisions of ERISA and the Code with respect to each Plan, except to the
extent that any failure so to be in compliance would not, individually or in
the aggregate, materially and adversely affect the business, consolidated
financial position or consolidated results of operations of API and its
Consolidated Subsidiaries, considered as a whole. As of the date hereof, no
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Code or
(iii) incurred any liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA, except to the extent that
any such waivers, failures and liabilities would not, individually
40
or in the aggregate, materially and adversely affect the business, consolidated
financial position or consolidated results of operations of API and its
Consolidated Subsidiaries, considered as a whole.
(g) Taxes. United States federal income tax returns of API and its
domestic Subsidiaries have been examined and closed through the fiscal year
ended December 31, 1991. API and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all material taxes due pursuant to
such returns or pursuant to any assessment received by API or any Subsidiary,
except for assessments being contested in good faith by appropriate proceedings
and as to which API or such Subsidiary has set aside adequate reserves on its
books. The charges, accruals and reserves on the books of API and its
Consolidated Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of API, adequate in all material respects.
(h) Material Subsidiaries. Each Material Subsidiary has been duly
organized and is validly existing and, to the extent applicable, in good
standing under the laws of its jurisdiction of organization, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except to the
extent that the failure of any of the foregoing would not, individually or in
the aggregate, materially and adversely affect the business, consolidated
financial position or consolidated results of operations of API and its
Consolidated Subsidiaries, considered as a whole.
(i) Investment Company Act. No Borrower is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(j) Disclosure. Except for changes therein, if any, arising in connection
with the Disclosed SEC Investigation, all information heretofore furnished by
the Borrowers to the Administrative Agent or any Bank in writing for purposes
of or in connection with this Agreement or any transaction contemplated hereby,
taken as a whole, was true and accurate in all material respects or based on
reasonable estimates on the date as of which such information is stated or
certified and API has disclosed to the Banks in writing any and all facts known
to API which it reasonably believes materially and adversely affect or may
materially and adversely affect (to the extent API can now reasonably foresee)
the business, consolidated financial position or consolidated results of
operations of API and its Consolidated Subsidiaries, considered as a whole.
(k) Environmental Matters. In the ordinary course of its business, API
conducts an ongoing review of the effect of Environmental Laws on the business,
operations and properties of API and its Subsidiaries, in the course of which
it
41
identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, API has reasonably concluded
that, as of the date hereof, Environmental Laws are unlikely to have a material
adverse effect on the business, consolidated financial condition, or
consolidated results of operations of API and its Consolidated Subsidiaries,
considered as a whole.
(l) Federal Reserve Regulations. After giving effect to the application of
the proceeds of each Loan, not more than 25% of the value of the consolidated
assets of API (based on book value or another reasonable measure) will consist
of or be represented by "margin stock" within the meaning of Regulation U of
the Federal Reserve Board.
ARTICLE 6
Conditions Precedent
Section 6.01. Conditions to Effectiveness. This Agreement shall not become
effective until the earliest date (the "Effective Date") on which each of the
following conditions precedent shall have been satisfied, or waived in writing
by the Banks:
(a) Agreements. The Administrative Agent shall have received counterparts
of this Agreement, duly executed and delivered by each of the Banks, the
Initial Borrowers and the Administrative Agent (or in the case of any such
party as to which an executed counterpart shall not have been received, the
Administrative Agent shall have received, in form satisfactory to it,
telegraphic, telex, telecopy or other written confirmation from such party of
its execution of a counterpart of this Agreement).
(b) Evidence of Corporate Action. The Administrative Agent shall have
received the following:
(i) API. (A) a copy of the Restated Certificate of Incorporation, as
amended, of API, certified as of a recent date not later than the
Effective
42
Date by the Secretary of State of the State of New York, and a certificate
as to the good standing of API as of a date not earlier than four Domestic
Business Days prior to the Effective Date, from such Secretary of State;
(B) a certificate of the Secretary or Assistant Secretary of
API, dated the Effective Date, and certifying (1) that attached
thereto is a true and complete copy of the by-laws of API as in
effect on such date and at all times since the date of the
resolutions described in clause (2) below, (2) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board
of Directors of API authorizing the execution, delivery and
performance of this Agreement, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
(3) that the certificate of incorporation of API has not been amended
since the date of the last amendment thereto shown on the certificate
of good standing furnished pursuant to clause (i)(A) above, and (4)
as to the incumbency and signature of each officer executing this
Agreement or any document delivered in connection herewith on behalf
of the API; and
(C) a certificate of a Responsible Officer of API as to the
incumbency and signature of the Secretary or Assistant Secretary of
API executing the certificate described in clause (i)(B) above;
(ii) ACC. (A) a copy of the Certificate of Incorporation, as amended,
of ACC, certified as of a recent date not later than the Effective Date by
the Secretary of State of the State of Delaware, and a certificate as to
the good standing of ACC as of a date not earlier than four Domestic
Business Days prior to the Effective Date, from such Secretary of State;
(B) a certificate of the Secretary or Assistant Secretary of
ACC, dated the Effective Date, and certifying (1) that attached
thereto is a true and complete copy of the by-laws of ACC as in
effect on such date and at all times since the date of the
resolutions described in clause (2) below, (2) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board
of Directors of ACC authorizing the execution, delivery and
performance of this Agreement, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
(3) that the certificate of incorporation of ACC has not been amended
since the date of the last amendment thereto shown on the certificate
of good standing furnished pursuant to clause (ii)(A) above, and (4)
as to the incumbency and signature of each officer
43
executing this Agreement or any document delivered in connection
herewith on behalf of ACC; and
(C) a certificate of a Responsible Officer of ACC as to the
incumbency and signature of the Secretary or Assistant Secretary of
ACC executing the certificate described in clause (ii)(B) above.
(c) Legal Opinions. The Administrative Agent shall have received an
opinion of the General Counsel of API, substantially in the form of Exhibit G
hereto.
(d) Repayment of Outstanding Loans. The Administrative Agent shall have
received evidence, in form and substance satisfactory to it, that (i) all Loans
outstanding under the Existing Credit Agreement, and all interest and fees that
are payable thereunder, shall have been paid in full and (ii) the commitments
thereunder have been terminated.
Section 6.02. Conditions to Each Loan. The obligations of each Bank to
make any Loan (including the initial Loans) are subject to the conditions that
the Effective Date shall have occurred and that, on the Borrowing Date of each
such Loan and after giving effect thereto, each of the following conditions
precedent shall have been satisfied, or waived in writing by the Required
Banks, and upon such satisfaction or waiver each such Bank will give a written
confirmation of the same to the relevant Borrower upon request:
(a) Borrowing Request. The Administrative Agent shall have received from
such Borrower a Borrowing Request, in the appropriate form and in the manner
contemplated hereby.
(b) Absence of Defaults. No Default or Event of Default shall have
occurred and be continuing.
(c) Representations and Warranties. The representations and warranties
contained in Section 5.01 shall have been true when made and (other than the
representations and warranties contained in Sections 5.01(d)(ii) and 5.01(e) or
any other representations or warranties that expressly relate to a date
certain) shall be true and correct with the same effect as though such
representations and warranties had been made at the time of such Loan.
Section 6.03. Satisfaction of Conditions Precedent. Acceptance by a
Borrower of the proceeds of any Loan shall be deemed to constitute a
certification of such Borrower that, as of the relevant Borrowing Date, each of
the applicable conditions precedent in Section 6.02 has been satisfied or
waived in writing.
44
Section 6.04. Additional Borrowers. In the case of the first Loans to be
made to an Additional Borrower, in addition to the conditions set forth in
Section 6.02, the obligations of each Bank to make such Loans are subject to
the condition that, on the Borrowing Date of each such Loan, each of the
following conditions precedent shall have been satisfied, or waived in writing
by the Required Banks, and upon such satisfaction or waiver each Bank will give
written confirmation of the same to the relevant Additional Borrower:
(a) Designation and Confirmation. The Administrative Agent shall have
received an Additional Borrower Designation and an Additional Borrower
Confirmation, in substantially the forms of Exhibits E-2 and E-3, respectively,
duly executed and delivered by API and such Additional Borrower, respectively;
(b) Bank Consent. In the case of an Additional Borrower not listed on
Schedule 6.04, all the Banks shall have consented to the designation of that
Additional Borrower as such; and
(c) Evidence of Corporate Action. The Administrative Agent shall have
received:
(i) a certificate of the Secretary or Assistant Secretary (or similar
official) of such Additional Borrower, dated the Borrowing Date, and
certifying (A) that attached thereto is a true and complete copy of the
constitutive instruments of such Additional Borrower as in effect on such
date and at all times since the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Additional
Borrower authorizing the execution, delivery and performance of this
Agreement, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, and (C) as to the incumbency and
signature of each officer executing this Agreement or any document
delivered in connection herewith on behalf of such Additional Borrower;
and
(ii) a certificate or certificates of a Responsible Officer of such
Additional Borrower as to the incumbency and signature of the Secretary of
Assistant Secretary (or similar official) of such Additional Borrower
executing the certificate described in clause (i) above.
45
ARTICLE 7
Covenants
Section 7.01. Affirmative Covenants. API (and, in the case of Section
7.01(f), each Borrower (on and after the date on which it shall become a
Borrower)) agrees that, so long as any Bank has in effect any Commitment
hereunder or any amount payable on any Loan remains unpaid:
(a) Financial Information. API will deliver to each of the Banks:
(i) as soon as available and in any event within 95 days after the
end of each fiscal year of API, a consolidated balance sheet of API and
its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income, cash flows and changes in
shareholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
in a manner acceptable to the SEC (subject to changes, if any, therein
arising in connection with the Disclosed SEC Investigation) by
PricewaterhouseCoopers LLP or other independent public accountants of
nationally recognized standing;
(ii) as soon as available and in any event within 50 days after the
end of each of the first three quarters of each fiscal year of API, a
consolidated balance sheet of API and its Consolidated Subsidiaries as of
the end of such quarter and the related consolidated statements of
operations for such quarter and the portion of the fiscal year ended at
the end of such quarter and the related consolidated statement of cash
flows for the portion of the fiscal year ended at the end of such quarter,
all (subject to changes, if any, therein arising in connection with the
Disclosed SEC Investigation and normal year-end adjustments) reported in a
manner acceptable to the SEC and certified as to fairness of presentation,
GAAP and consistency by a Responsible Officer of API;
(iii) simultaneously with the delivery of each set of financial
statements referred to in clauses (i) and (ii) above, a certificate of a
Responsible Officer of API (A) setting forth in reasonable detail the
calculations required to establish whether API was in compliance with the
requirements of Section 7.02(d) on the date of such financial statements
and (B) stating whether any Default or Event of Default exists on the date
of such certificate and, if any Default or Event of Default then exists,
setting forth the details thereof and the action which API is taking or
proposes to take with respect thereto;
46
(iv) simultaneously with the delivery of each set of financial
statements referred to in clause (i) above, a statement of the firm of
independent public accountants which reported on such statements (A)
whether anything has come to their attention to cause them to believe that
any Default or Event of Default existed on the date of such statements and
(B) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (iii) above;
(v) within five days of any Responsible Officer of the Borrower or
API obtaining knowledge of any Default or Event of Default, if such
Default or Event of Default is then continuing, a certificate of a
Responsible Officer of API stating that such certificate is a "Notice of
Default" and setting forth the details thereof and the action which API is
taking or proposes to take with respect thereto;
(vi) promptly upon the mailing thereof to the shareholders of API
generally, copies of all financial statements, reports and proxy
statements so mailed;
(vii) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which API or the Borrower shall have filed
with the SEC;
(viii) if and when any member of the ERISA Group (A) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC, (B) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent
or has been terminated, a copy of such notice, (C) receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan, a copy of such notice,
(D) applies for a waiver of the minimum funding standard under Section 412
of the Code, a copy of such application, (E) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC, (F) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice, or
47
(G) fails to make any payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes any amendment to
any Plan or Benefit Arrangement which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under
ERISA or the Code, a certificate of the Treasurer or chief financial
officer of API setting forth details as to such occurrence and action, if
any, which API or the applicable member of the ERISA Group is required or
proposes to take; and
(ix) from time to time, such additional information regarding the
financial position or business of the Borrowers (including notification of
any change in the ratings assigned to API by S&P or ▇▇▇▇▇'▇) as the
Administrative Agent, at the request of any Bank, may reasonably request.
(b) Maintenance of Property; Insurance. (i) API will keep, and will cause
each Material Subsidiary to keep, all material property useful and necessary in
its business in substantial good working order and condition, ordinary wear and
tear excepted.
(ii) API will, and will cause each Material Subsidiary to, maintain
(either in the name of API or in such Material Subsidiary's own name) with
financially sound and responsible insurance companies, insurance on all
their respective properties in at least such amounts and against at least
such risks (and with such risk retention) as are usually insured against
in the same general area by companies of established repute engaged in the
same or a similar business; and will furnish to the Banks, upon request
from the Administrative Agent, information presented in reasonable detail
as to the insurance so carried.
(c) Continuation of Business. API and its Subsidiaries will continue to
engage in business of the same general type as conducted by API and its
Subsidiaries on the date hereof, considered as a whole. Except as permitted
under Section 7.02(a), API will preserve, renew and keep in full force and
effect, and will cause each Material Subsidiary to preserve, renew and keep in
full force and effect their respective corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business.
(d) Compliance with Law. API will comply, and cause each Subsidiary to
comply, with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws, ERISA and the rules and regulations thereunder) except (i)
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings, (ii) where failure so to comply would not have a
material
48
adverse effect on the business, consolidated financial position or consolidated
results of operations of API and its Consolidated Subsidiaries, considered as a
whole or (iii) for noncompliance, if any, that is a subject of the Disclosed
SEC Investigation.
(e) Books, Records and Inspection. Subject to changes, if any, therein
arising in connection with the Disclosed SEC Investigation, API will keep, and
will cause each Subsidiary to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP (as applied to API and
its Consolidated Subsidiaries on a consolidated basis) shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank
at such Bank's expense to visit and inspect any of its properties, to examine
and make abstracts from any of its books and records and to discuss its
affairs, finances and accounts with its officers, employees and independent
public accountants, all at such reasonable times and as often as may reasonably
be desired.
(f) Use of Proceeds. The proceeds of each Loan (i) will be used by the
relevant Borrower for the purposes described in Section 2.08 and (ii) will not
be used by such Borrower in violation of any applicable law or regulation,
including Regulation U and Regulation X of the Federal Reserve Board.
Section 7.02. Negative Covenants. API agrees that, so long as any Bank has
any Commitment hereunder or any Loan remains unpaid:
(a) Mergers, Consolidations and Sales of Assets. API will not, and, so
long as any Loans made to ACC are outstanding hereunder, will not permit ACC
to, consolidate with or merge with or into any other person or sell, convey or
otherwise transfer its properties or assets substantially as an entirety to any
Person or Persons, except that (i) API may merge with a person that is a U.S.
corporation, so long as API is the corporation surviving such merger and no
Default or Event of Default shall have occurred or be continuing immediately
after such merger and (ii) ACC may consolidate with or merge with or into API
or any Wholly-Owned Subsidiary.
(b) Negative Pledge. API will not, and will not permit any Subsidiary to,
create, assume or suffer to exist any Lien on any asset (including, without
limitation, any stock of any Material Subsidiary) now owned or hereafter
acquired by it, except:
(i) Liens existing on the date hereof securing obligations not
exceeding $26,000,000 in aggregate amount;
49
(ii) Liens arising in the ordinary course of its business which (A)
do not secure Debt and (B) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the
operation of its business;
(iii) any Lien on any assets securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(iv) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section 7.02(b), provided that such Debt is not
increased and is not secured by any additional assets;
(v) any Lien existing on any asset prior to the acquisition thereof
by API or a Consolidated Subsidiary and not created in contemplation of
such acquisition;
(vi) Liens for taxes or assessments and similar charges either (A)
not delinquent or (B) being contested in good faith by appropriate
proceedings and as to which adequate reserves have been set aside on the
books of API and its Subsidiaries;
(vii) Liens arising out of judgments or awards against API or any
Consolidated Subsidiary with respect to which API or such Consolidated
Subsidiary shall in good faith be prosecuting an appeal or proceedings for
review, provided that (A) API or such Consolidated Subsidiary, as the case
may be, shall have secured, within 60 days after the creation thereof, an
effective stay of execution pending such appeal or review, and (B) except
with respect to judgments and awards with respect to non-United States
taxes against Consolidated Subsidiaries organized or conducting a
substantial portion of their business outside the United States, the
aggregate amount of such judgments and awards shall not exceed
$200,000,000;
(viii) Liens for minor survey exceptions, or minor encumbrances,
easements or reservations of, or rights of others for, rights of way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which encumbrances, easements, reservations, rights and
restrictions do not in the aggregate materially detract from the value of
the real properties of API and the Consolidated Subsidiaries, considered
as a whole, or
50
materially impair their use in the operation of the business of API or the
Consolidated Subsidiary owning the same;
(ix) Liens of Consolidated Subsidiaries securing Debt of such
Consolidated Subsidiaries to API;
(x) Liens in favor of the Administrative Agent or the Banks securing
obligations and liabilities of the Borrowers hereunder; and
(xi) any other Liens incurred in the ordinary course of business,
provided that the aggregate amount of all such other Liens incurred in the
ordinary course of business shall not exceed $50,000,000 at any time
outstanding.
(c) Ownership of ACC. API will at no time at which any Loans made to ACC
are outstanding hereunder own less than 100% of each outstanding class of
capital stock of ACC.
(d) Interest Coverage Ratio. As of the last day of each fiscal quarter of
API, the Interest Coverage Ratio will not be less than 4:1.
ARTICLE 8
Events of Default
Section 8.01. Events of Default. If one or more of the following events
(each, an "Event of Default") shall have occurred and be continuing:
(a) A Borrower shall fail to pay when due any principal of any Loan or
shall fail to pay within five Business Days after the date when due any
interest, fee or other amount payable hereunder;
(b) API shall fail to observe or perform any of its covenants contained in
Section 7.02;
(c) A Borrower shall fail to observe or perform any of its covenants or
agreements contained in this Agreement (other than those covered by clause (a)
or (b) above) for 30 days after written notice thereof has been given to API by
the Administrative Agent at the request of any Bank;
(d) Any representation, warranty, certification or statement made by a
Borrower in this Agreement or in any certificate, financial statement or other
51
document delivered pursuant hereto shall prove to have been incorrect in any
material respect when made or deemed made (it being understood that good faith
projections that are reasonable when made shall not be considered
representations, warranties, certifications or statements for purposes of this
Section 8.01(d));
(e) API, ACC, or any Material Subsidiary shall fail to make any payment in
respect of Debt, other than Debt under this Agreement or any Notes, having an
aggregate principal or face amount of $50,000,000 or more when due or within
any applicable grace period;
(f) Any event or condition (other than those covered by clause (e) above)
shall occur which (i) results in the acceleration of the maturity of Debt
(other than Debt under any Credit Document) of API or any Material Subsidiary
having an aggregate principal amount of $50,000,000 or more or (ii) would
presently cause or allow the maturity of any Debt (other than Debt under any
Credit Document) of API or any Material Subsidiary having an aggregate
principal amount of $50,000,000 or more to be accelerated;
(g) API, ACC, or any Material Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due (or admit such failure in writing), or shall take any corporate
action to authorize any of the foregoing;
(h) An involuntary case or other proceeding shall be commenced against API
or any Material Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against API or any Material Subsidiary under the
Federal bankruptcy laws as now or hereafter in effect;
(i) Any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $50,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a
52
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition specified in Section 4042(a)(1) of ERISA, shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment obligation in
excess of $50,000,000;
(j) Judgments or orders for the payment of money in excess of $50,000,000
in the aggregate shall be rendered against API or any Material Subsidiary and
such judgments or orders shall continue unsatisfied and unstayed for a period
of more than 30 days; or
(k) A Change of Control of API;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrowers, terminate the Commitments
and they shall thereupon terminate, and (ii) if requested by the Required
Banks, by notice to the Borrowers, declare the Loans and any Notes (together
with accrued interest thereon) to be, and such Notes shall thereupon become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers; provided
that in the case of any of the Events of Default specified in clause (g) or (h)
above, without any notice to the Borrowers or any other act by the
Administrative Agent or the Banks, the Commitments shall thereupon terminate
and the Loans and any Notes (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
Section 8.02. Notice of Default. The Administrative Agent shall give
written notice to the Borrowers of the occurrence of any Event of Default under
Section 8.01(c) promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
53
ARTICLE 9
The Administrative Agent and the Banks
Section 9.01. The Agency. Each Bank appoints The Chase Manhattan Bank as
its Administrative Agent hereunder and irrevocably authorizes The Chase
Manhattan Bank to take such action on its behalf and to exercise such powers
hereunder as are specifically delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably incidental hereto,
including the exercise by the Administrative Agent of powers delegated to the
Administrative Agent and the Banks hereby, and The Chase Manhattan Bank hereby
accepts such appointment subject to the terms hereof. The relationship between
the Administrative Agent and the Banks shall be that of agent and principal
only and nothing herein shall be construed to constitute the Administrative
Agent a trustee for any Bank nor to impose on the Administrative Agent duties
or obligations other than those expressly provided for herein.
Section 9.02. The Administrative Agent's Duties. The Administrative Agent
shall promptly forward to each Bank copies, or notify each Bank as to the
contents, of all notices and other communications received from a Borrower
pursuant to the Credit Documents. As to any other matter not expressly provided
for herein or therein, the Administrative Agent shall have no duty to act or
refrain from acting with respect to a Borrower, except upon the written
instructions of the Required Banks. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof until it
shall have received from the payee of such Note written notice of the transfer
thereof. The Administrative Agent shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written instructions
signed by the Required Banks and, except as otherwise specifically provided for
herein, such instructions and any action or inaction pursuant thereto shall be
binding upon all the Banks and each subsequent holder of any Loan. The
Administrative Agent shall not be bound by any waiver, amendment, supplement,
or modification of any Credit Document which affects its duties as
Administrative Agent, unless it shall have given its prior written consent
thereto. The Administrative Agent shall have no duty to ascertain or inquire as
to the performance or observance of any of the terms, conditions, covenants or
agreements binding upon a Borrower pursuant to any Credit Document, nor shall
it be deemed to have knowledge of the occurrence of any Default or Event of
Default, unless it shall have received written notice from a Borrower or a Bank
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default".
Section 9.03. Sharing of Payments and Expenses. All funds for the account
of the Banks received by the Administrative Agent in respect of payments made
by a Borrower pursuant to, or from any Person on account of, any Credit
54
Document shall be distributed forthwith by the Administrative Agent among the
Banks, ratably in proportion to their respective interests therein. In the
event that any Bank shall receive from a Borrower or any other source any
payment of, on account of, or for or under any Credit Document (whether
received pursuant to the exercise of any right of set-off, banker's lien,
realization upon any security held for or appropriated to such obligation or
otherwise as permitted by law) other than in proportion to its Pro Rata Share,
except for amounts payable to such Bank under Section 4.03, 4.04 or 4.06
hereof, then such Bank shall purchase at par from each other Bank so much of
its interest in obligations of the Borrowers as shall be necessary in order
that each Bank shall share such payment with each of the other Banks in
proportion to each Bank's Pro Rata Share. In the event that any purchasing Bank
shall be required to return any excess payment received by it, the purchase
shall be rescinded and the purchase price restored to the extent of such
return, but without interest.
Section 9.04. The Administrative Agent's Liabilities. Each of the Banks
and the Borrowers agrees that (a) neither the Administrative Agent in such
capacity nor any of its officers or employees shall be liable for any action
taken or omitted to be taken by any of them hereunder except for its or their
own gross negligence or wilful misconduct, (b) neither the Administrative Agent
in such capacity nor any of its officers or employees shall be liable for any
action taken or omitted to be taken by any of them in good faith in reliance
upon the advice of counsel, independent public accountants or other experts
selected by the Administrative Agent and (c) the Administrative Agent in such
capacity shall be entitled to rely upon any notice (telephonic or written),
consent, certificate, statement or other document (including any telegram,
cable, telex, facsimile or telephone transmission) believed by it to be genuine
and correct and to have been given, signed and/or sent by the proper Persons.
Section 9.05. The Administrative Agent as a Bank. The Administrative Agent
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not an Administrative Agent, and the terms
"Bank" or "Banks", unless the context otherwise indicated, include the
Administrative Agent in its individual capacity. The Administrative Agent may
maintain deposits or credit balances for, invest in, lend money to and
generally engage in any kind of banking business with API or any Subsidiary or
affiliate of API as if it were any other Bank and without any duty to account
therefor to the other Banks.
Section 9.06. Bank Credit Decision. Neither the Administrative Agent nor
any of its officers or employees has any responsibility for, gives any guaranty
in respect of, nor makes any representation to the Banks as to, (a) the
condition, financial or otherwise, of API or any Subsidiary thereof or the
truth of any
55
representation or warranty given or made in, or in connection with, any Credit
Document or (b) the validity, execution, sufficiency, effectiveness,
construction, adequacy, enforceability or value of any Credit Document or any
related document or instrument. Except as specifically provided herein and in
the other Credit Documents to which the Administrative Agent is a party, the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank with any credit or other information
with respect to the operations, business, property, condition or
creditworthiness of the Borrowers, whether such information comes into the
Administrative Agent's possession on or before the date hereof or at any time
thereafter. Each Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Bank, and based upon such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and any other Credit
Documents to which it may become a party. Each Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Bank, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any Credit Document.
Section 9.07. Indemnification. Each Bank agrees (which agreement shall
survive repayment of the Loans) to indemnify the Administrative Agent, to the
extent not reimbursed by the Borrowers, ratably in accordance with its
respective Commitment in effect on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Commitment
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with its respective Commitment immediately prior to such date), from
and against any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of any
Credit Document, or any action taken or omitted to be taken by the
Administrative Agent under any Credit Document; provided that no Bank shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Administrative
Agent or any of its officers or employees. Without limiting the foregoing, each
Bank agrees to reimburse the Administrative Agent promptly upon demand for its
Pro Rata Share of any out-of-pocket expenses (including counsel fees) incurred
by the Administrative Agent in such capacity in connection with the enforcement
of, or legal advice in respect of rights or responsibilities under, any Credit
Document or any amendments or supplements hereto or thereto, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrowers.
56
Section 9.08. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Banks and API, and
the Administrative Agent may be removed at any time by the Required Banks by
giving written notice thereof to the Administrative Agent, the other Banks and
API at least 10 Business Days prior to the effective date of such removal. Upon
any such resignation or removal, the Required Banks, with the prior written
consent of API (which consent shall not be unreasonably withheld), shall have
the right to appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America or any
State thereof and having a capital and surplus of at least $250,000,000 (a
"Qualified Administrative Agent"). If no such successor Administrative Agent
shall have been so appointed and shall have accepted such appointment within 30
days after the resigning Administrative Agent's giving of notice of
resignation, or the Required Banks' giving notice of removal, as the case may
be, the resigning or removed Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent, which shall be a Qualified
Administrative Agent as set forth in this Section 9.08. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigned or removed Administrative Agent, and the resigned or removed
Administrative Agent shall be discharged from its duties and obligations in
such capacity under this Agreement and any other Credit Documents. After any
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
ARTICLE 10
The Guaranty
Section 10.01. The Guaranty. API unconditionally and irrevocably
guarantees the prompt payment when due of all present and future obligations
and liabilities of all kinds (including post-petition interest, whether or not
such interest constitutes an allowed claim in the related bankruptcy or
insolvency proceeding) of each other Borrower to the Banks under any Credit
Document, whether incurred by such Borrower as maker, endorser, drawer,
acceptor, guarantor, accommodation party or otherwise, and whether due or to
become due, secured or unsecured, absolute or contingent, joint or several, and
howsoever or whenever incurred by such Borrower (the "Guaranteed Obligations").
57
Section 10.02. Absolute Guaranty. API's obligations hereunder shall not be
affected by the genuineness, validity, regularity or enforceability of the
Guaranteed Obligations or any instrument evidencing the Guaranteed Obligations
or by the existence, legality, validity, enforceability (including as a result
of a bankruptcy, reorganization or similar proceeding), perfection, or extent
of any collateral therefor or by any other circumstance relating to the
Guaranteed Obligations or the Borrowers (other than API) which might otherwise
constitute a defense available to any surety or guarantor or to this Guaranty.
The Banks make no representation or warranty in respect of any such
circumstance and have no duty or responsibility whatsoever to API with respect
to the management or maintenance of the Guaranteed Obligations or any
collateral therefor. The Banks shall not be obligated to file any claim
relating to the Guaranteed Obligations in the event that a Borrower becomes
subject to a bankruptcy, reorganization or similar proceeding, and the failure
of the Banks so to file shall not affect API's obligations hereunder. In the
event that any payment to the Banks in respect of any Guaranteed Obligation is
rescinded or must otherwise be returned for any reason whatsoever, API shall
remain liable hereunder in respect of such Guaranteed Obligation as if such
payment had not been made.
Section 10.03. Consents, Waivers and Renewals. API agrees that the Banks
may at any time and from time to time, either before or after the maturity
thereof, without notice to or further consent of API, extend the time of
payment of, exchange or surrender any collateral for, or renew any Guaranteed
Obligations, and may also make any agreement with ACC, an Additional Borrower
or with any other party to or person liable on any Guaranteed Obligations, or
interested therein, for the extension, renewal, payment, compromise, discharge
or release thereof, in whole or in part, or for any modification of the terms
thereof or of any agreement between the Banks, ACC, an Additional Borrower or
any such other party or person, without in any way impairing or affecting this
Guaranty. API agrees that the Banks may resort to API for payment of any
Guaranteed Obligations, whether or not the Banks shall have resorted to any
collateral security, or shall have proceeded against any Borrower or other
obligor principally or secondarily obligated with respect to any of the
Guaranteed Obligations.
Section 10.04. Subrogation. API will not exercise any rights which it may
acquire by way of subrogation or by any indemnity, reimbursement or other
agreement, and shall not exercise any right of recourse to any assets or
property of any other Borrower held for the payment and performance of the
Guaranteed Obligations, unless and until all of the Guaranteed Obligations have
been paid in full and all Commitments have been terminated. If any amount shall
be paid to API in violation of the preceding sentence, such amount shall be
held in trust for the benefit of the Banks and shall forthwith be paid to the
Administrative Agent to
58
be credited and applied to the Guaranteed Obligations, whether matured or
unmatured.
Section 10.05. Security. Without limiting any other right of each Bank,
upon the occurrence of an Event of Default that is continuing, to the fullest
extent permitted by law, whenever any of the Guaranteed Obligations shall
become due (whether by acceleration or otherwise), such Bank at its sole
election may set off against the Guaranteed Obligations due to such Bank all
moneys then standing to the credit of API on the books of such Bank. Any Bank
exercising its rights under this Section 10.05 shall give notice thereof to
API, the relevant Borrower and the Administrative Agent concurrently with or
prior to the exercise of such rights, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
Section 10.06. Continuing Guaranty. API's obligations hereunder shall
remain in full force and effect until the principal of and interest on the
Loans and all other amounts payable by any other Borrower under this Agreement
shall have been paid in full. If at any time any payment of the principal of or
interest on the Loans or any other amount payable by any such Borrower under
this Agreement is rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy or reorganization of such Borrower or otherwise, API's
obligations hereunder with respect to such payment shall be reinstated as
though such payment had been due but not made at such time.
Section 10.07. Waiver of Notice. API waives notice of the acceptance of
this Guaranty and of the making of any loans or extensions of credit to any
other Borrower, presentment to or demand or payment from anyone whomsoever
liable upon any of the Guaranteed Obligations, presentment, demand, notice of
dishonor, protest, notice of any sale of collateral security and all other
notices whatsoever.
ARTICLE 11
Miscellaneous
Section 11.01. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 11.02. Set-off. Each Bank is hereby authorized at any time and
from time to time upon the occurrence of an Event of Default that is
continuing, to the fullest extent permitted by law, to set-off and apply any
and all deposits
59
(general or special, time or demand, provisional or final) at any time held and
other Debt at any time owing by such Bank to or for the credit or the account
of a Borrower against any and all payment obligations of such Borrower under
this Agreement then due to such Bank, irrespective of whether such Bank shall
have made any demand under this Agreement. The rights of each Bank under this
Section 11.02 are in addition to any other rights and remedies (including other
rights of set-off) which such Bank may have. Any Bank exercising its rights
under this Section 11.02 shall give notice thereof to API, the relevant
Borrower and the Administrative Agent concurrently with or prior to the
exercise of such rights, provided that the failure to give such notice shall
not affect the validity of such set-off and application.
Section 11.03. Expenses. API agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent and any Banks, including the
reasonable fees and disbursements of one firm of counsel (plus one firm of
local counsel in any relevant jurisdiction to the extent necessary or
appropriate in connection with any proceeding relating to enforcement) chosen
from time to time to represent the Banks as a group in connection with the
negotiation and execution of the Credit Documents and, if necessary, in
connection with the administration and enforcement of any provisions of the
Credit Documents.
Section 11.04. Amendments. Any provision of this Agreement may be amended,
modified, supplemented or waived if, but only if, such amendment, modification,
supplement or waiver is in writing and is signed by each of the Borrowers and
the Required Banks (and, if the rights or duties of the Administrative Agent
are affected thereby, by the Administrative Agent); provided that no such
amendment, modification, supplement or waiver shall, unless signed by all the
Banks, (i) subject to Section 2.04, increase or decrease the Commitment of any
Bank or subject any Bank to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for any reduction or termination of any Commitment,
(iv) release API from any obligations under Article 10 or (v) amend or waive
the provisions of this Section 11.04, the definition of "Required Banks" or any
provision that explicitly requires the consent of all the Banks.
Section 11.05. Cumulative Rights and No Waiver. Each and every right
granted to the Administrative Agent and the Banks under any Credit Document, or
allowed them by law or equity, shall be cumulative and may be exercised from
time to time. No failure on the part of the Administrative Agent or any Bank to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by the Administrative Agent or
any Bank of any
60
right preclude any other or future exercise thereof or the exercise of any other
right.
Section 11.06. Notices. Except as specified in Articles 1, 2 or 3, any
communication, demand or notice to be given hereunder will be duly given when
delivered in writing or by telecopy to a party at its address as indicated
below.
A communication, demand or notice given pursuant to this Section 11.06
shall be addressed:
If to any Borrower, to such Borrower at (or in care of):
Avon Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Group Vice President, Finance and Treasurer
If to the Administrative Agent, to it at:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
provided, that notices to be given pursuant to Articles 2, 3
or 4 (other than notices pursuant to Section 2.07, which
shall be directed as set forth in Exhibit C-1) hereunder
shall be given to the Administrative Agent at;
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
61
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
If to any Bank, to it at the address designated as its address for notices
on Schedule 2.01.
Unless otherwise provided herein, any notice which is required to be given
in writing or by telephone pursuant to the terms of this Agreement may be given
by telex, telecopy or facsimile transmission. Any party from time to time may
change its address for notices by notice to the other Banks, the Agent and the
Borrower in the manner provided in this subsection.
Each notice delivered in writing to API hereunder shall be deemed
delivered to all the Borrowers.
Section 11.07. Severability. If any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 11.08. Parties in Interest. (a) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of each of the
Borrowers and the Banks and their respective successors. Except as permitted in
Section 11.08(c), no interest in the Commitment of any Bank or any Loan, nor
any right of a Bank under the Credit Documents, may be assigned to any Person
that was not, prior to such assignment, a Bank hereunder. No Borrower shall
assign or delegate any of its respective rights or obligations hereunder,
without the prior written consent of all the Banks. Any purported assignment in
contravention of this Section 11.08 shall be null and void.
(b) Participations. Any Bank, in the ordinary course of its business and
in accordance with applicable law, may at any time grant to one or more banks
or other financial institutions (each, a "Participant") participating interests
in its Commitment or any or all of its Revolving Credit Loans; provided that
such Bank gives written notice of the granting of such participation to API. In
the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to either Borrower and the
Administrative Agent, such Bank shall remain responsible for the performance of
its obligations hereunder and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrowers under the Credit
62
Documents, including the right to approve any amendment, modification,
supplement or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in Sections 11.04
(i) through (v), inclusive, without the consent of the Participant. Each
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 4.03 and 4.04 with respect to its participating interest; provided
that (i) all amounts payable to a Bank for the account of a Participant under
Sections 4.03 and 4.04 shall be determined as if such Bank had not granted such
participation to the Participant and (ii) no Participant shall be entitled to
receive any greater payment under Section 4.03 or 4.04 than such Bank would
have been entitled to receive with respect to the rights participated, unless
such transfer is made with API's prior written consent or by reason of the
provisions of Section 4.04 requiring such Bank to designate a different lending
office under certain circumstances or at a time when the circumstances giving
rise to such payment did not exist.
(c) Assignments. (i) Any Bank, in accordance with applicable law, may
assign all or a portion of its interests, rights and obligations under this
Agreement (including a portion or all of its Commitment or of the Loans at the
time owing to it) to one or more banks or other financial institutions (each,
an "Assignee"); provided, however, that (A) each of API and the Administrative
Agent must give its prior written consent (which consent shall not be
unreasonably withheld) to any such assignment (other than an assignment by a
Bank to an affiliate of such Bank or to a Federal Reserve Bank), (B) the amount
of the Commitment of the assigning Bank (determined as of the date of such
assignment) subject to such assignment (other than in the case of an assignment
to an Affiliate of the Bank or a Federal Reserve Bank) shall not be less than
$10,000,000, unless API otherwise consents (which consent shall not be
unreasonably withheld), (C) the parties to each such assignment (other than an
assignment to a Federal Reserve Bank) shall execute and deliver to the
Administrative Agent for recording in the Register an instrument evidencing
such assignment, in substantially the form of Exhibit F (an "Assignment and
Acceptance"), and the assigning Bank or the Assignee shall pay to the
Administrative Agent an assignment fee in cash equal to $1,000 (if the Assignee
is already a Bank) or $3,500 (otherwise), and (D) as of the date of such
assignment, except with the prior written consent of API and the Administrative
Agent, (1) the Assignee shall not have any right, and shall have no knowledge
that such assignment would result in its having the right, to request
compensation pursuant to Section 4.04 after giving effect to such assignment
and (2) the parties to such assignment shall have no knowledge that such
assignment (a) would cause it to be unlawful for any party thereto to make or
maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan or (b) would cause any
Borrower to incur any liability under Section 4.03 or 4.04. Upon acceptance and
recording in the Register, from and
63
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least two Domestic Business Days after the execution
thereof, (A) the Assignee thereunder shall be a party hereto and, to the extent
of the Commitment assigned by such Assignment and Acceptance, shall have the
rights and obligations of, and shall for all purposes be, a Bank under this
Agreement and (B) the assigning Bank thereunder shall, to the extent of the
Commitment assigned by such Assignment and Acceptance, be released from such
Commitment (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's Commitment under this Agreement
and in the case of an assignment pursuant to Section 4.06, such Bank shall
cease to be a party hereto). Notwithstanding the foregoing, (A) any Bank
assigning any portion of its rights and obligations under this Agreement may
retain any Competitive Advance Loans made by it outstanding at such time and,
in such case, shall retain its rights hereunder in respect of any Competitive
Advance Loans so retained until such Loans have been repaid and (B) any Bank
may at any time assign or grant a security interest in its Loans and its rights
(but not its obligations) under this Agreement to a Federal Reserve Bank;
provided that no such assignment or grant pursuant to this clause (B) shall
release a Bank from any of its obligations hereunder.
(ii) By executing and delivering an Assignment and Acceptance, the
Assignee thereunder shall be deemed to confirm to and agree with the other
parties hereto as follows: (A) such Assignee confirms that it has received
a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.01 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(B) such Assignee will independently and without reliance upon the
Administrative Agent, the assigning Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (C) such Assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof; and (D) such Assignee agrees
that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement are required to be performed by it as
a Bank with the Loans and Commitment assigned to it.
(iii) Notwithstanding the foregoing, an Assignee shall not, by virtue
of an Assignment and Acceptance, become a party to this Agreement or a
"Bank", or have any rights to consent to or refrain from consenting to any
amendment, waiver or other modification of any
64
provision of any Credit Document unless such Assignee shall thereby have
accepted a Commitment hereunder; provided that no such amendment, waiver
or modification may reduce or postpone any payment of principal or
interest in respect of any Loan assigned to such Assignee thereby without
the written consent of such Assignee.
(d) Federal Reserve Regulations. Notwithstanding any other provision of
any Credit Document, no Bank may sell, assign or participate all or any portion
of its Commitment or Loans hereunder to any "broker" or "dealer" (as defined in
Sections 3(a)(4) and 3(a)(5) of the Securities Exchange Act of 1934) or any
other Person that is a "creditor" (as defined in Regulation T of the Federal
Reserve Board). By executing and delivering this Agreement, each Bank hereby
confirms that it is not such a "broker", "dealer" or "creditor".
Section 11.09. Waiver of Right to Jury. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND EACH OF THE BANKS WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THE CREDIT DOCUMENTS OR THE RELATIONSHIPS ESTABLISHED UNDER THE
CREDIT DOCUMENTS.
Section 11.10. Indemnity. The Borrowers, jointly and severally, agree to
indemnify the Administrative Agent and each of the Banks and their respective
directors, officers, employees, agents and controlling persons (each such
Person, an "Indemnitee") against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees and expenses, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (i)
the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties thereto of their respective
obligations hereunder or the consummation of the transactions contemplated
hereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of any Indemnitee.
The provisions of this Section 11.10 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement,
the
65
consummation of the transactions contemplated hereby, the repayment of any of
the Revolving Credit Loans or the Competitive Advance Loans, the reduction or
cancellation of the Total Commitment, the invalidity or unenforceability of any
term or provision of this Agreement or any Note, or any investigation made by
or on behalf of the Banks. All amounts due under this Section 11.10 shall be
payable in immediately available funds upon written demand therefor.
Section 11.11. Consent to Jurisdiction. Any judicial proceeding brought
against any Borrower with respect to any Credit Document may be brought in any
court of competent jurisdiction in the City of New York, and, by its execution
and delivery of this Agreement or an Additional Borrower Confirmation pursuant
to Section 6.04, each Borrower shall be deemed, to the fullest extent permitted
by law, to (a) accept, generally and unconditionally, the jurisdiction of such
courts, (b) irrevocably waive any objection they may now or hereafter have as
to the venue of any suit, action or proceeding brought in such a court or that
such court is an inconvenient forum and (c) consent that service of process
upon any of them may be made by certified or registered mail, return receipt
requested, at their address specified or determined in accordance with the
provisions of Section 11.06 and service so made shall be deemed completed when
received. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of the Bank to bring
proceedings against any Borrower in the courts of any other jurisdiction.
Section 11.12. Confidentiality. Except as may be required to enforce the
rights and duties established hereunder, the parties hereto shall preserve in a
confidential manner all information received from any other party pursuant to
this Agreement, any Notes and the transactions contemplated hereunder and
thereunder, and shall not disclose such information except (i) to employees of
such Bank or its Affiliates involved in the administration of this Agreement
(including assignments and participations) and their respective directors,
attorneys and accountants (each of which shall be acting in a capacity with
respect to which a confidential relationship is established and recognized),
(ii) to any Participant or Assignee or any potential Participant or Assignee
(provided, that such Person shall agree to keep confidential all information
provided thereto, in accordance with this Section 11.12) and (iii) as required
by applicable law, including responses to requests for information by
appropriate bank regulatory agencies.
Section 11.13. Execution in 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 the counterparts shall together constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
66
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AVON PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President and Deputy Treasurer
AVON CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President and Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
HSBC BANK USA
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Director
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Credit Portfolio Manager
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
BANCO BILBAO VIZCAYA
ARGENTARIA, S.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President Global Corporate
Banking
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President Corporate Banking
BANCO SANTANDER CENTRAL
HISPANO, S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
Schedule 2.01
Banks and Commitments
Commitment
as of the
Name of Bank Address for Notices Closing Date
---------------------------------- --------------------------- ------------
The Chase Manhattan Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $ 56,250,000
(The Administrative Agent) ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Citibank, N.A. ▇ ▇▇▇▇'▇ ▇▇▇ $ 56,250,000
(The Syndication Agent) ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of America, N.A. IL1-231-09-10 $ 52,500,000
(The Documentation Agent) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Deutsche Bank AG New York Branch ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 52,500,000
and/or Cayman Islands Branch Mailstop NYC 02-1414
(The Documentation Agent) ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of Tokyo-Mitsubishi Trust 1251 Avenue of the Americas $ 52,500,000
Company ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(The Documentation Agent) Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fleet National Bank ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 45,000,000
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BNP Paribas ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 40,000,000
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Bandon
HSBC Bank USA ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $ 40,000,000
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Banco Santander Central Hispano, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $ 40,000,000
S.A. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇
The Northern Trust Company ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 30,000,000
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
1
Commitment
as of the
Name of Bank Address for Notices Closing Date
---------------------------------- --------------------------- ------------
The Fuji Bank, Limited New York Branch $ 30,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
PNC Bank, National Association PNC Firstside Center $ 30,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Banco Bilbao Vizcaya Argentaria, 1345 Avenue of the Americas $ 30,000,000
S.A. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mellon Bank, N.A. 1 Mellon Bank Center $ 25,000,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Bank of Nova Scotia One Liberty Plaza $ 20,000,000
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Total $600,000,000
2
Schedule 5.01(e)
Certain Litigation
See API's Annual Report on Form 10-K for the fiscal year ended December
31, 2000.
1
Schedule 6.04
Certain Additional Borrowers
Avon Cosmetics, Ltd. (United Kingdom)
Avon Canada Inc. (Canada)
Avon S.a.S. (France)
Avon Cosmetics GmbH (Germany)
Avon Cosmetics, S.A. (Spain)
Avon Products Company Limited (Japan)
Avon Products Pty. Ltd. (Australia)
▇▇▇▇▇ Dublin Finance Company (Ireland)
Avon Cosmetics S.P.A. (Italy)
Cosmeticos Avon S.A.C.I. (Argentina)
Avon Cosmetics Ltda. (Brazil)
Avon Industrial Ltda. (Brazil)
Avon Products (China) Co. Ltd. (China)
Avon Manufacturing (Guangzhou) Ltd. (China)
Avon Cosmetics S.A. de C.V. (Mexico)
Avon Cosmetics Polska SPO KA Z.O.O. (Poland)
Avon Operations Polska SP Z.O.O. (Poland)
1
Exhibit A
Form of Revolving Credit Loan Request
[Date]
[The Chase Manhattan Bank
Administrative Services
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
Attention:
Re: Revolving Credit Loan Request
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, supplemented or
extended from time to time, the "Credit Agreement"), among Avon Products, Inc.,
Avon Capital Corporation, the Additional Borrowers, banks and other lenders
from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
[NAME OF BORROWER] hereby gives you notice pursuant to Section 2.02(a) of
the Credit Agreement that it requests a Revolving Credit Loan, and in that
connection sets forth below the terms on which such Revolving Credit Loan is
requested to be made:
(A) Borrowing Date1 _______________
(B) Principal Amount2 $_______________
(C) Interest Rate Basis [ABR Loan] [Eurodollar Loan]
--------
1 Must be a Business Day.
2 Must be equal to $10,000,000 or an integral multiple of $1,000,000 in
excess thereof.
2
(D) Interest Period and the last day thereof3 _______________
Very truly yours,
[NAME OF BORROWER]
--------
3 1, 2, 3 or 6 months in the case of Eurodollar Loans. Not applicable to
ABR Loans.
3
Exhibit B-1
Form of Revolving Credit Note
[Principal Amount] _____ __, ____
[NAME OF BORROWER], a [[New York] [Delaware] [jurisdiction of
organization] corporation] (the "Borrower"), for value received, promises to
pay to the order of [BANK] (the "Bank"), on the Termination Date, the principal
sum of [PRINCIPAL AMOUNT IN DOLLARS] or, if less, the aggregate principal
amount of the Revolving Credit Loans made by the Bank to the Borrower pursuant
to that certain Revolving Credit and Competitive Advance Facility Agreement,
dated as of May 1, 2001 (as amended, modified, supplemented or extended from
time to time, the "Credit Agreement"), among Avon Products, Inc., Avon Capital
Corporation, the Additional Borrowers, banks and other lenders from time to
time parties thereto and The Chase Manhattan Bank, as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal amount
of Revolving Credit Loans from time to time outstanding from the date hereof
until maturity (whether by acceleration or otherwise) and, after maturity,
until paid, at the rate or rates per annum and on the date or dates specified
in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
Administrative Agent at such office or offices of the Administrative Agent as
may be designated by the Administrative Agent pursuant to the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind
whatsoever. The failure or forbearance by the holder to exercise any of its
rights hereunder in any particular instance shall in no event constitute a
waiver thereof.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder of this Note on the schedule attached hereto and made
a part hereof, or on a continuation thereof which shall be attached hereto and
made a part hereof, or shall be recorded by the holder of this Note in its
internal records; provided, however, that any failure of the holder of this
Note to make such a notation or any error in such notation shall in no manner
affect the validity or
B-1-1
enforceability of the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note and the Credit
Agreement.
This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement, which among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional
prepayment of the principal hereof prior to the maturity thereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. Terms used and not otherwise defined
herein have the meanings ascribed thereto in the Credit Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
[Pursuant to the Credit Agreement, payment in full of principal and
interest on this Note is unconditionally guaranteed by Avon Products, Inc., a
New York corporation.]1
[NAME OF BORROWER]
By:
---------------------------------
Title:
--------
1 The text in brackets is to be included only in Notes of ACC or an
Additional Borrower.
B-1-2
REVOLVING CREDIT LOANS AND PRINCIPAL PAYMENTS
Amount of Revolving Amount of Unpaid
Credit Loans Made Amount of Principal Repaid Principal Balance
------------------ ------------------------------------------ ------------------
Euro Euro Euro
ABR dollar Interest ABR dollar ABR dollar Notation
Date Loan Loan Period (if applicable) Loan Loan Loan Loan Total Made By
-------- -------- -------- ---------------------- -------- -------- -------- -------- --------- -----------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
Form of Competitive Advance Note
[Principal Amount] [Date]
[NAME OF BORROWER], a [[New York] [Delaware] [jurisdiction of
organization] [corporation]] (the "Borrower"), for value received, promises to
pay to the order of [BANK] (the "Bank"), on [MATURITY DATE], the principal sum
of [PRINCIPAL AMOUNT] pursuant to that certain Amended and Restated Revolving
Credit and Competitive Advance Facility Agreement, dated as of May 1, 2001 (as
amended, modified, supplemented or extended from time to time, the "Credit
Agreement"), among Avon Products, Inc., Avon Capital Corporation, the
Additional Borrowers, banks and other lenders from time to time parties thereto
and Chemical Bank, as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rate or rates per annum and on the date or dates specified in or determined
pursuant to the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
Administrative Agent at its office or offices as may be designated by the
Administrative Agent pursuant to the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind
whatsoever. The failure or forbearance by the holder to exercise any of its
rights hereunder in any particular instance shall in no event constitute a
waiver thereof.
This Note is one of the Competitive Advance Notes referred to in the
Credit Agreement which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. Terms used and not otherwise
defined herein have the meanings ascribed thereto in the Credit Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER,
B-2-1
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Pursuant to the Credit Agreement, payment in full of principal and
interest on this Note is unconditionally guaranteed by Avon Products, Inc.]1
[NAME OF BORROWER]
By:
-------------------------------------
Title:
--------
1 The text in brackets is to be included only in Notes of ACC or an
Additional Borrower.
B-2-2
Exhibit C-1
Competitive Advance Facility Procedures
1.01 Competitive Advance Loan Requests shall be given to the
Administrative Agent at:
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
1.02 With respect to any Competitive Advance Loan requested by a Borrower
to be made on a Borrowing Date, the Competitive Advance Notice Time,
Competitive Advance Bid Deadline and Competitive Advance Accept/Reject Deadline
shall be determined in the manner set forth below:
Competitive Advance Notice Time: 10:30 A.M., New York time, one Domestic
Business Day (or four Eurodollar Business Days in the case of a Competitive
Eurodollar Loan) prior to the Borrowing Date.
Competitive Advance Bid Deadline: 9:30 A.M., New York time, on the
Borrowing Date (or three Eurodollar Business Days prior to the Borrowing Date
in the case of a Competitive Eurodollar Loan); provided that in the case of a
Competitive Advance Bid submitted by the Administrative Agent, in its capacity
as a Bank, the Competitive Advance Bid Deadline shall be 15 minutes prior to
the foregoing time.
Competitive Advance Accept/Reject Deadline: 10:30 A.M., New York time, on
the Borrowing Date (or three Eurodollar Business Days prior to the Borrowing
Date for Competitive Eurodollar Loans).
C-1-1
Exhibit C-2
Form of Competitive Advance Loan Request
[Date]
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Re: Competitive Advance Loan Request
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, supplemented or
extended from time to time, the "Credit Agreement"), among Avon Products, Inc.,
Avon Capital Corporation, the Additional Borrowers, banks and other lenders
from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
[NAME OF BORROWER] hereby gives you notice pursuant to Section 2.07 of the
Credit Agreement that it requests offers to make Competitive Advance Loans
under the Credit Agreement, and in that connection sets forth below the terms
on which such Competitive Advance Loans are requested to be made:
(A) Borrowing Date2 _________________________
(B) Aggregate Principal Amount3 _________________________
--------
2 Must be a Eurodollar Business Day.
3 Must be an amount not less than $10,000,000.
C-2-1
(C) Maturity Date4 _________________________
(D) Interest Rate Basis [Fixed Rate] [Eurodollar Rate]
(E) Interest Period, if any5 _________________________
Very truly yours,
[NAME OF BORROWER]
By:
---------------------------------
Title:
Countersigned:
By:
---------------------------------
A Responsible Officer of API
--------
4 At least 10 days and not more than 180 after the Borrowing Date, in the
case of a Competitive Absolute Rate Loan, and not more than 6 months after the
Borrowing Date, in the case of a Competitive Eurodollar Loan.
5 1, 2, 3 or 6 months with respect to Competitive Eurodollar Loans. Not
applicable with respect to Competitive Absolute Rate Loans.
C-2-2
Exhibit C-3
Form of Competitive Advance Notice Letter
[Date]
[Name of Bank]
[Address]
Attention: ________________
Re: Notice of a Competitive Advance Loan Request
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, supplemented or
extended from time to time, the "Credit Agreement"), among Avon Products, Inc.,
Avon Capital Corporation, the Additional Borrowers, banks and other lenders
from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
[NAME OF BORROWER] delivered to the Administrative Agent a Competitive
Advance Loan Request on ____________, __, pursuant to Section 2.07 of the
Credit Agreement, and in that connection you are invited to submit a Bid to
make a Competitive Advance Loan to such Borrower by [TIME], on _______________,
____.1 Your Bid must comply with Section 2.07 of the Credit Agreement and the
terms set forth below on which the Bid Request was made:
(A) Proposed Borrowing Date _______________
(B) Principal amount of Competitive Advance Loan _______________
(C) Interest rate basis [Fixed Rate] [Eurodollar Rate]
--------
1 The Bid must be received by the Administrative Agent not later than the
Bid Deadline specified in Exhibit C-1.
C-3-1
(D) Interest Period and the last day thereof _______________
Very truly yours,
The Chase Manhattan Bank, as
Administrative Agent
By:
---------------------------------
Title:
C-3-2
Exhibit C-4
Form of Competitive Advance Bid
[Date]
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Re: Competitive Advance Bid
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, supplemented or
extended from time to time, the "Credit Agreement"), among Avon Products, Inc.,
Avon Capital Corporation, the Additional Borrowers, banks and other lenders
from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
[NAME OF BANK] hereby submits a Competitive Advance Bid pursuant to
Section 2.07 of the Credit Agreement, in response to the Competitive Advance
Loan Request made by [NAME OF BORROWER] on ______________, ____, and in that
connection sets forth below the terms on which such Competitive Advance Bid is
made:
(A) Principal Amount2 _______________
(B) Competitive Advance Bid [Rate] [Margin]3 _______________
The undersigned hereby acknowledges that, pursuant to Section 2.07(c)
of the Credit Agreement, by marking the indicated box below, it will be deemed
to
--------
2 Principal amount must be at least $10,000,000 and not greater than the
requested Competitive Advance Loan. Multiple bids may be accepted by the
Administrative Agent.
3 In the case of a Competitive Absolute Rate Loan, __%; in the case of a
Competitive Eurodollar Loan, a margin (+/- __%) over LIBOR.
C-4-1
have waived the right to claim compensation under Sections 3.03(d), 4.04(a) or
4.04(b) of the Credit Agreement with respect to any Competitive Advance Loan
made pursuant to this Competitive Advance Bid.
Section 3.03(c) |_|
Section 4.04(a) |_|
Section 4.04(b) |_|
The undersigned hereby confirms that it will, subject only to the
conditions set forth in the Credit Agreement, extend credit to the relevant
Borrower upon acceptance by the relevant Borrower of this Competitive Advance
Bid in accordance with Section 2.07 of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By:
---------------------------------
Title:
C-4-2
Exhibit C-5
Form of Competitive Advance Bid Accept/Reject Letter
[Date]
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Re: Competitive Advance Bid Acceptance/Reject Letter
Dear Sirs:
[NAME OF BORROWER] refers to the Revolving Credit and Competitive Advance
Facility Agreement, dated as of May 1, 2001 (as amended, modified, supplemented
or extended from time to time, the "Credit Agreement"), among Avon Products,
Inc., Avon Capital Corporation, the Additional Borrowers, banks and other
lenders from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent.
In accordance with Section 2.07 of the Credit Agreement, we have received
a summary of bids in connection with our Competitive Advance Loan Request dated
________, ____, and in accordance with Section 2.07(d)(ii) of the Credit
Agreement, we hereby accept the following Competitive Advance Bids for
Competitive Advance Loans to be made on _________, ____, with a Maturity Date
of ____________, ____:
Competitive Advance
Principal Amount Rate/Margin Bank
---------------- ------------------- ----
%/+/-. %
We hereby reject the following bids:
C-5-1
Competitive Advance
Principal Amount Rate/Margin Bank
---------------- ------------------- ----
%/+/-. %
Very truly yours,
[NAME OF BORROWER]
By:
--------------------------------
Title:
C-5-2
Exhibit D
Form of Continuation/Conversion Request
[Date]
The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Re: Continuation/Conversion Request
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, supplemented or
extended from time to time, the "Credit Agreement"), among Avon Products, Inc.,
Avon Capital Corporation, the Additional Borrowers, banks and other lenders
from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
[NAME OF BORROWER] hereby requests pursuant to Section 3.06(a) of the
Credit Agreement that on __________, ____:
(1) $___,000,000 of the presently outstanding principal amount of
Revolving Credit Loans presently being maintained as [ABR] [Revolving
Eurodollar] Loans [with an Interest Period ending on _______________, _____],
(2) be [converted into] [continued as],
(3) [Revolving Eurodollar Loans having an Interest Period of
[one][two][three][six] months] [ABR Loans].
D-1
Very truly yours,
[NAME OF BORROWER]
By:
--------------------------------
Title:
D-2
Exhibit E-1
Form of Additional Borrower [Designation] [Termination]
[Date]
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Re: Additional Borrower Designation
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Avon
Products, Inc., Avon Capital Corporation, the Additional Borrowers, banks and
other lenders from time to time parties thereto and The Chase Manhattan Bank,
as Administrative Agent. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
1. [Please be advised that the following Subsidiary is hereby designated
as an Additional Borrower and, subject to Section 6.04 of the Credit Agreement,
such Subsidiary will be authorized to use the credit facilities provided for
under the Credit Agreement:] [Please be advised that the designation of the
following Subsidiary as an Additional Borrower is terminated effective on the
date referred to in paragraph 2 below:]
[Insert Name and
Address of Additional
Borrower]
2. The effective date of this Additional Borrower [Designation]
[Termination] will be _____________ ___, ____.
E-1-1
Very truly yours,
AVON PRODUCTS, INC.
By:
-----------------------------------
Title:
[NAME OF ADDITIONAL BORROWER]1
By:
-----------------------------------
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
------------------------------------------
Title:
--------
1 Additional Borrower signature necessary only in the case of termination
of designation.
E-1-2
Exhibit E-2
Form of Additional Borrower Confirmation
[Date]
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Re: Additional Borrower Confirmation
Dear Sirs:
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Avon
Products, Inc., Avon Capital Corporation, the Additional Borrowers, banks and
other lenders from time to time parties thereto and The Chase Manhattan Bank,
as Administrative Agent. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The undersigned (1) also refers to the Additional Borrower Designation,
effective ____________, ____ (the "Designation Effective Date"), in which the
undersigned has been designated an Additional Borrower and (2) hereby confirms
that, by its execution hereof, the undersigned acknowledges that it has
received a copy of the Credit Agreement, confirms that the representations and
warranties contained in Section 5.1 of the Credit Agreement (except the
representations and warranties contained in Section 5.1(d)(iii) or 5.1(e) and
any other representation or warranty that expressly relates to a date certain)
are true and correct insofar as they relate to the undersigned as of the
Designation Effective Date hereof, the conditions specified in Section 6.02
have been satisfied insofar as relate to the undersigned, and agrees that, from
and after the Designation Effective Date, subject to Section 6.04 of the Credit
Agreement, it shall be a party to the Credit Agreement and shall be bound, as a
"Borrower" and an "Additional Borrower", by all of the provisions thereof.
E-2-1
Very truly yours,
[NAME OF ADDITIONAL BORROWER]
By:
-----------------------------------
Title:
E-2-2
Exhibit F
Assignment and Acceptance
Reference is made to the Revolving Credit and Competitive Advance Facility
Agreement, dated as of May 1, 2001 (as amended, modified, extended or
superseded from time to time, the "Credit Agreement"), among Avon Products,
Inc., Avon Capital Corporation, the Additional Borrowers, banks and other
lenders from time to time parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms defined in the Credit Agreement are
used herein with the same meanings.
Section 1.01. Assignment and Acceptance. The Assignor identified in Annex
1 hereto hereby sells and assigns, without recourse, to the Assignee identified
in Annex 1 hereto, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Effective Date set
forth in Annex 1 hereto, the interests set forth on Annex 1 hereto (the
"Assigned Interest") in the Assignor's rights and obligations under the Credit
Agreement, including, without limitation, the interests set forth on Annex 1 in
the Commitment of the Assignor on the Assignment Effective Date and the
[Competitive Advance Loans and] Revolving Credit Loans owing to the Assignor
which are outstanding on the Assignment Effective Date. Each of the Assignor
and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 11.08(d) of the
Credit Agreement, a copy of which has been received by each such party. From
and after the Assignment Effective Date (i) the Assignee shall be a party to
and be bound by the provisions of the Credit Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
Section 1.02. Other Documentation. This Assignment and Acceptance is being
delivered to the Administrative Agent together with a properly completed Annex
2 hereto if the Assignee is not already a Bank under the Credit Agreement.
Section 1.03. Representations and Warranties of the Assignor. The Assignor
(i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, or any
F-1
other instrument or document executed furnished pursuant thereto; and (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrowers or the performance or observance by
the Borrowers of any of their obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto.
Section 1.04. Representations and Warranties of the Assignee. The Assignee
hereby agrees with, and represents and warrants to, the Assignor, the other
Banks, the Borrowers and the Administrative Agent as specified in Section
11.08(d) of the Credit Agreement.
Section 1.05. Governing Law. This Assignment and Acceptance shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Annex 1 hereto.
F-2
Annex 1 to Assignment and Acceptance
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than two Domestic Business
Days after the Date of Assignment):
Principal Amount Percentage Assigned of
Assigned (and identifying Commitment (set forth, to at
information as to individual least 8 decimals, as a percentage
Competitive Advance Loans) of the Total Commitment)
------------------------------ ---------------------------------
Commitment Assigned: $ %
Revolving Credit Loans: $
Competitive Advance Loans:
The terms set forth above are hereby agreed to:
_____________________, as Assignor
By:
--------------------------------------------
Name:
Title:
____________________, as Assignee
By:
--------------------------------------------
Name:
Title:
Consent given:
AVON PRODUCTS, INC.
By:
--------------------------------------------
Name:
Title:
Annex 1-1
Annex 2 to Assignment and Acceptance
LEGAL NAME OF ASSIGNEE TO APPEAR IN DOCUMENTATION:
_______________________________________________________________________________
GENERAL INFORMATION - ABR LENDING OFFICE:
Institution Name:______________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:______________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
GENERAL INFORMATION - COMPETITIVE ADVANCE LENDING OFFICE:
Institution Name:______________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
CONTACTS/NOTIFICATION METHODS:
CREDIT CONTACTS:
Primary Contact:_______________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
Phone Number:__________________________________________________________________
FAX Number:____________________________________________________________________
Backup Contact:________________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
Phone Number:__________________________________________________________________
FAX Number:____________________________________________________________________
Annex 2-1
TAX WITHHOLDING:
Non Resident Alien _____ Y* _____ N
* Form W-8BEN Enclosed
Tax ID Number _______________
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:_______________________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
Phone Number:__________________________________________________________________
FAX Number:____________________________________________________________________
COMPETITIVE ADVANCE LOAN NOTIFICATION:
Contact:_______________________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
Phone Number:__________________________________________________________________
FAX Number:____________________________________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
_______________________________________________________________________________
Routing Transit/ABA number of Bank where funds are to be transferred:
_______________________________________________________________________________
Name of Account, if applicable:
_______________________________________________________________________________
Account Number:________________________________________________________________
Additional Information:________________________________________________________
Annex 2-2
MAILINGS:
Please specify who should receive financial information:
Name:__________________________________________________________________________
Street Address:________________________________________________________________
City, State, Country, Zip Code:________________________________________________
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and
we will FAX them a copy of the questionnaire. If you have any questions, please
call _______________ on (212) ___________.
Annex 2-3
Exhibit G
OPINION OF GENERAL COUNSEL FOR AVON PRODUCTS, INC.
May 1, 2001
To the Banks and Administrative Agent
Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the General Counsel of Avon Products, Inc., a New York corporation
("API"), and have acted as counsel for API and for Avon Capital Corporation, a
Delaware corporation ("ACC"; each of API and ACC an "Initial Borrower"), in
connection with the Revolving Credit and Competitive Advance Facility Agreement
dated as of April 26, 2001 (the "Credit Agreement") among API, ACC, the
Additional Borrowers, the banks and other lenders from time to time parties
thereto (the "Banks"), and The Chase Manhattan Bank, as Administrative Agent.
Capitalized terms defined in the Credit Agreement are used herein as therein
defined. This opinion is being rendered to you pursuant to Section 6.01(c) of
the Credit Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. API has been duly incorporated and is an existing corporation in good
standing under the laws of the State of New York and has all corporate powers
required to carry on its business as presently conducted. ACC has been duly
incorporated and is an existing corporation in good standing under the laws of
the State of Delaware and has all corporate powers required to carry on its
business as presently conducted.
2. The execution, delivery and performance by each Initial Borrower of the
Credit Agreement (i) are within its corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) require no action by or in
respect of, or filing (other than routine information filings) with, any
governmental body, agency or official of the United States or the State of New
York or pursuant to the General Corporation Law of the State of Delaware, (iv)
do not contravene any applicable provision of United States
G-1
To the Banks and Administrative Agent
Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
May 1, 2001
Page 2
Federal or New York State law or the General Corporation Law of the State of
Delaware that in my experience is normally applicable to general business
corporations in relation to transactions of the type contemplated by the Credit
Agreement, (v) do not contravene, or constitute a default under, such Initial
Borrower's certificate of incorporation or by-laws or any material agreement,
judgment, injunction, order, decree or other instrument binding upon such
Initial Borrower and (vi) do not result in the creation or imposition of any
material Lien on any asset of such Initial Borrower or any Material Subsidiary.
Each Initial Borrower has duly executed and delivered the Credit Agreement.
3. The Credit Agreement constitutes a valid and binding agreement of each
Initial Borrower, and each Note of each Initial Borrower (when executed and
delivered by such Initial Borrower in accordance with the terms of the Credit
Agreement) will be a valid and binding obligation of such Initial Borrower, in
each case enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws affecting creditors' rights generally and to general
equitable principles, regardless of whether considered in a proceeding in
equity or at law.
4. Except as disclosed in the reports or financial statements referred to
in Section 5.01(d) of the Credit Agreement or in Schedule 5.01(e) thereto,
there is no action, suit or proceeding pending or, to the best of my knowledge,
threatened against API, ACC, or any Material Subsidiary, in which there is a
reasonable possibility of an adverse decision which would be reasonably likely
to materially and adversely affect the business, consolidated financial
position or consolidated results of operations of API and its Consolidated
Subsidiaries, considered as a whole, or which in any manner seeks to avoid the
obligations of either Initial Borrower to repay Loans under the Credit
Agreement or of API under the guaranty set forth in Article 10 of the Credit
Agreement.
The foregoing opinions are subject to the following qualifications:
(a) I express no opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any Bank is located
which may limit the rate of interest that such Bank may charge or collect.
(b) I express no opinion as to provisions in the Credit Agreement
that purport to provide indemnification insofar as such indemnification
might be
G-2
To the Banks and Administrative Agent
Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
May 1, 2001
Page 3
deemed inconsistent with public policy or to indemnify any Person for its
own gross negligence or willful misconduct.
The foregoing opinion is limited to the Federal laws of the Untied States,
the laws of the State of New York and the General Corporation Law of the State
of Delaware, and I am expressing no opinion as to the effect of the laws of any
other jurisdiction.
In connection with the opinions set forth in paragraph 2 above, I have
assumed, with your approval, that none of the Banks is a "broker" or "dealer"
(as defined in Sections 3(a)(4) and 3(a)(5) of the Securities Exchange Act of
1934, amended) or a "creditor" (as defined in Regulation T of the Board of
Governors of the Federal Reserve System).
With your approval, I have relied as to certain matters on information
obtained from public officials, officers of the Initial Borrowers and other
sources believed by me to be responsible, and I have assumed that the Credit
Agreement has been duly authorized, executed and delivered by the parties
thereto other than the Initial Borrowers and that the signatures on all
documents examined by me (other than those of persons signing on behalf of the
Initial Borrowers) are genuine, assumptions which I have not independently
verified.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without my prior written consent.
Very truly yours,
G-3
