EXHIBIT 4.7
EXECUTION COUNTERPART
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U.S. $250,000,000
5-YEAR CREDIT AGREEMENT
Dated as of April 30, 2003
among
THE PEPSI BOTTLING GROUP, INC.
BOTTLING GROUP, LLC
THE LENDERS NAMED HEREIN
JPMORGAN CHASE BANK,
as Agent,
CITIGROUP GLOBAL MARKETS INC. and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and
Book Managers
and
CITIBANK, N.A.,
BANK OF AMERICA, N.A.,
CREDIT SUISSE FIRST BOSTON, and
DEUTSCHE BANK SECURITIES INC.
as Syndication Agents
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EXHIBIT 4.7
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING ..................................................... 1
SECTION 1.01. Certain Defined Terms ............................................. 1
SECTION 1.02. Computation of Time Periods ....................................... 12
SECTION 1.03. Accounting Terms .................................................. 13
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES ............................................. 13
SECTION 2.01. The Revolving Credit Advances ..................................... 13
SECTION 2.02. Making the Revolving Credit Advances .............................. 13
SECTION 2.03. The Competitive Bid Advances ...................................... 15
SECTION 2.04. Fees .............................................................. 18
SECTION 2.05. Termination, Reduction or Increase of the Commitments ............. 19
SECTION 2.06. Repayment of Revolving Credit Advances, Evidence of
Indebtedness and Extension of Termination Date ........................... 21
SECTION 2.07. Interest on Revolving Credit Advances ............................. 23
SECTION 2.08. Interest Rate Determination ....................................... 23
SECTION 2.09. Optional Conversion of Revolving Credit Advances .................. 24
SECTION 2.10. Optional Prepayments of Revolving Credit Advances ................. 25
SECTION 2.11. Increased Costs ................................................... 25
SECTION 2.12. Illegality ........................................................ 26
SECTION 2.13. Payments and Computations ......................................... 26
SECTION 2.14. Taxes ............................................................. 27
SECTION 2.15. Sharing of Payments, Etc .......................................... 30
SECTION 2.16. Use of Proceeds ................................................... 30
SECTION 2.17. Borrowings by Borrowing Subsidiaries; Substitution of Borrower .... 30
SECTION 2.18. Mitigation Obligations ............................................ 31
ARTICLE III CONDITIONS TO EFFECTIVENESS AND ARTICLE II ................................... 32
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 ... 32
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing ........... 34
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing ............ 34
SECTION 3.04. Determinations Under Section 3.01 ................................. 35
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES ............................ 35
SECTION 4.01. Representations and Warranties of the Loan Parties ................ 35
ARTICLE V COVENANTS ...................................................................... 36
SECTION 5.01. Affirmative Covenants ............................................. 36
SECTION 5.02. Negative Covenants ................................................ 38
SECTION 5.03. Financial Covenants ............................................... 39
ARTICLE VI EVENTS OF DEFAULT ............................................................. 40
SECTION 6.01. Events of Default ................................................. 40
ARTICLE VII THE AGENT .................................................................... 42
ARTICLE VIII MISCELLANEOUS ............................................................... 44
SECTION 8.01. Amendments, Etc ................................................... 44
SECTION 8.02. Notices, Etc ...................................................... 44
SECTION 8.03. No Waiver; Remedies ............................................... 45
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Page
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SECTION 8.04. Costs and Expenses ................................................ 45
SECTION 8.05. Right of Set-off .................................................. 46
SECTION 8.06. Binding Effect .................................................... 46
SECTION 8.07. Assignments and Participations .................................... 46
SECTION 8.08. Confidentiality ................................................... 50
SECTION 8.09. Governing Law ..................................................... 50
SECTION 8.10. Execution in Counterparts ......................................... 50
SECTION 8.11. Jurisdiction, Etc ................................................. 50
SECTION 8.12. WAIVER OF JURY TRIAL .............................................. 51
ARTICLE IX COMPANY GUARANTEE ............................................................. 51
SECTION 9.01. Company Guarantee ................................................. 51
ARTICLE X SUBSIDIARY GUARANTEE ........................................................... 52
SECTION 10.01. Subsidiary Guarantee ............................................. 53
SECTION 10.02. Limitation of Guarantor's Liability .............................. 54
SCHEDULE 1 - LENDING OFFICES
SCHEDULE 2 - PRICING SCHEDULE
EXHIBIT A-1 - FORM OF NOTICE OF REVOLVING CREDIT BORROWING
EXHIBIT A-2 - FORM OF NOTICE OF COMPETITIVE BID BORROWING
EXHIBIT A-3 - FORM OF EXTENSION AGREEMENT
EXHIBIT B - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT C - FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
AND THE GUARANTOR
EXHIBIT D - FORM OF DESIGNATION LETTER
EXHIBIT E - FORM OF SUBSTITUTION LETTER
EXHIBIT F - FORM OF TERMINATION LETTER
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CREDIT AGREEMENT
Dated as of April 30, 2003
THE PEPSI BOTTLING GROUP, INC., a Delaware corporation (the "Company"),
BOTTLING GROUP, LLC, a Delaware limited liability company (the "Guarantor"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and JPMORGAN CHASE BANK
("JPMorgan"), as administrative agent (in such capacity, the "Agent") for the
Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account " means the account of the Agent maintained by the
Agent at JPMorgan with its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Alternate Covenant Date" means any day on which the Index Debt of
Pepsi shall be rated less than A- by S&P or less than A3 by ▇▇▇▇▇'▇.
"Applicable Facility Fee Rate" means, for any Rating Level Period,
the rate per annum set forth in Schedule 2 opposite the reference to such Rating
Level Period under the heading "Applicable Facility Fee Rate". Each change in
the Applicable Facility Fee Rate resulting from a Rating Level Change shall be
effective on the date of such Rating Level Change.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of the Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a Competitive Bid
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Advance, the office of such Lender notified by such Lender to the Agent as
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, with respect to any Eurodollar Rate
Advance, for any Rating Level Period, the rate per annum set forth in Schedule 2
opposite the reference to such Rating Level Period under the heading "Applicable
Margin". Each change in the Applicable Margin resulting from a Rating Level
Change shall be effective on the date of such Rating Level Change.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Utilization Fee Rate" means, for any Rating Level
Period, the rate per annum set forth in Schedule 2 opposite the reference to
such Rating Level Period under the heading "Applicable Utilization Fee Rate".
Each change in the Applicable Utilization Fee Rate resulting from a Rating Level
Change shall be effective on the date of such Rating Level Change.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit B hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by JPMorgan in New York,
New York, from time to time, as JPMorgan's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a).
"Borrowers" means, at any time, collectively, the Company unless the
Substitution Date has occurred pursuant to Section 2.17, each Borrowing
Subsidiary and, on and after the Substitution Date has occurred pursuant to
Section 2.17, the Guarantor.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Borrowing Subsidiary" means any Subsidiary of the Company, as to
which a Designation Letter has been delivered to the Agent and as to which a
Termination Letter has not been delivered to the Agent in accordance with
Section 2.17.
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"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Change of Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
Pepsi, of shares representing more than 25% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Company;
(b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Company by Persons who were neither (i) nominated by the
board of directors of the Company nor (ii) appointed by directors so nominated;
or (c) the acquisition of direct or indirect Control of the Company by any
Person or group other than Pepsi.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to a Borrower
as part of a Competitive Bid Borrowing resulting from the auction bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer to
make one or more Competitive Bid Advances as part of such borrowing has been
accepted under the auction bidding procedure described in Section 2.03.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Confidential Information" means information that the Company
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public or that is or becomes rightfully available to the Agent or such
Lender from a source other than the Company.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP. The Company shall cause the Guarantor at all times to remain a
Consolidated Subsidiary.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount with respect to Debt (including the Advances), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), and (f) any other non-cash
charges, and minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) any extraordinary income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated
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Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (b) any other non-cash income, all as determined on a
Consolidated basis; in each case exclusive of the cumulative effect of foreign
currency gains or losses. For the purposes of calculating Consolidated EBITDA
for any period pursuant to any determination of the Consolidated Leverage Ratio,
if during such period the Company or any Subsidiary, including the Guarantor,
shall have made an acquisition or incurred or assumed (without duplication of
any Debt incurred to refinance such assumed Debt) any Debt, Consolidated EBITDA
for such period shall be calculated after giving pro forma effect thereto as if
such acquisition occurred and such Debt had been incurred or assumed or
refinanced on the first day of such period.
"Consolidated Leverage Ratio" means, as at the last day of any
Fiscal Quarter, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for the four consecutive fiscal quarters then ended (taken
as one accounting period).
"Consolidated Net Income" means, for any period, the consolidated
net income (or loss) of the Company, its Restricted Subsidiaries and the
Guarantor, determined on a consolidated basis in accordance with GAAP, before
deduction of any minority interests in the Guarantor and excluding the
cumulative effect of any foreign currency gains or losses.
"Consolidated Net Tangible Assets" means the total assets of the
Company, its Restricted Subsidiaries and the Guarantor (less applicable
depreciation, amortization, and other valuation reserves), except to the extent
resulting from write-ups of capital assets (other than writeups in connection
with accounting for acquisitions, in accordance with GAAP), less all current
liabilities (excluding intercompany liabilities) and all intangible assets of
the Company, its Restricted Subsidiaries and the Guarantor, all as set forth on
the then most recent Consolidated balance sheet of the Company, its Restricted
Subsidiaries and the Guarantor, prepared in accordance with GAAP, but before
deduction of any minority interests in the Guarantor and exclusive of any
foreign currency translation adjustments.
"Consolidated Net Worth" means, as of any date of determination, all
items which in conformity with GAAP would be included under shareholders' equity
on a Consolidated balance sheet of the Company and its Subsidiaries, including
the Guarantor, at such date plus amounts representing mandatorily redeemable
preferred securities issued by Subsidiaries of the Company, including the
Guarantor, but before deduction of any minority interests in the Guarantor and
exclusive of any foreign currency translation adjustments.
"Consolidated Total Debt" means, at any date (i) the aggregate
principal amount of all Debt of the Company and its Subsidiaries, including the
Guarantor minus (ii) the aggregate amount (not in excess of $500,000,000) of all
cash and cash equivalents of the Company and its Subsidiaries, in each case at
such date and determined on a Consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than trade
accounts payable arising in the ordinary course of business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations (other than trade accounts payable
arising in the ordinary course of business) of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such Person as
lessee under leases that have been or should be, in accordance with GAAP,
recorded as capital leases, (f) all Debt of others referred to in clauses (a)
through (c) above or clause (g) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through (i) an agreement (1) to pay or purchase such Debt or to advance
or supply funds for the payment or purchase of such Debt, (2) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such Debt or
to assure the holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for property
or services irrespective of whether such property is received or such services
are rendered) or (4) otherwise to assure a creditor against loss, or (ii) a
standby letter of credit and (g) all Debt referred to in clauses (a) through (f)
above secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"Debt to Capitalization Ratio" means at any time the ratio of (x)
Consolidated Total Debt to (y) the sum of (i) Consolidated Total Debt plus (ii)
Consolidated Net Worth.
"Declining Lender" has the meaning assigned to that term in Section
2.06(c).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Designation Letter" has the meaning specified in Section 2.17(a).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule 1 hereto or in the Assignment and Acceptance pursuant to which
it became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
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"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $15,000,000,000 and a
combined capital and surplus of at least $1,000,000,000; (v) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$l5,000,000,000 and a combined capital and surplus of at least $1,000,000,000 so
long as such bank is acting through a branch or agency located in the United
States or in the country in which it is organized or another country that is
described in this clause (v); (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; provided,
however, that each Person described in clauses (ii) through (vi) shall have a
short term public debt rating of not less than A by S&P or ▇▇▇▇▇'▇ or shall be
approved by the Company; and (vii) any other Person approved by the Company,
such approval not to be unreasonably withheld or delayed; provided, however,
that neither the Company nor an Affiliate of the Company shall qualify as an
Eligible Assignee.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to the
environment, health, safety or Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule 1 hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Company and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an interest
rate per annum appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Agent from time to
time for purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) as of 11:00 A.M. (London time) on the
date two Business Days prior to the first day of such Interest Period as the
rate for Dollar deposits having a term comparable to such Interest Period, or in
the event such offered rate is not available from said Page 3750, the average
(rounded to the nearer whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in U.S. dollars
are offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such
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Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such Interest
Period. If the Eurodollar Rate does not appear on said Page 3750 (or any
successor page), the Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(b).
"Events of Default" has the meaning specified in Section 6.01.
"Extension Agreement" means an Extension Agreement substantially in
the form contained in Exhibit A-3 hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Quarter" means a period of 13 or (or 14) weeks treated by
the Company as a fiscal quarter.
"Fiscal Year" means the period of 52 (or 53) weeks ending on the
last Saturday of any calendar year and treated by the Company as its fiscal
year.
"Fixed Rate Advances" has the meaning specified in Section 2.03(b).
"GAAP" means generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes concurred
in by the Company's independent public accountants) with the most recent audited
Consolidated financial statements of the Company and its Subsidiaries delivered
to the Lenders.
"Granting Lender" has the meaning specified in Section 8.07(e).
"Guaranteed Party" has the meaning specified in Section 9.01.
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, radon gas and any other chemicals, materials or substances
designated, classified or regulated as being "hazardous" or "toxic", or words of
similar import, under any federal, state, local or foreign statute, law,
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▇▇▇▇▇, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Index Debt" of any Person means senior, unsecured, long term
indebtedness for borrowed money of such Person that is not guaranteed by any
other Person (other than, in the case of the Company, the Guarantor) or subject
to any other credit enhancement.
"Information Memorandum" means the information memorandum dated
March 17, 2003 used by the Agent in connection with the syndication of the
Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Credit Borrowing, the period commencing on the date
of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Company pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the Company
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three, six or, to the extent available from all the Lenders,
nine or twelve months, as the Company may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(1) the Company may not select any Interest Period that ends after
the Termination Date;
(2) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Revolving Credit Borrowing shall be
of the same duration;
(3) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day; and
(4) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Sections 2.05(c) or 8.07.
"LIBO Rate Advances" has the meaning specified in Section 2.03(b).
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"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor.
"Loan Documents" means, collectively, this Agreement, each
promissory note issued thereunder, each Designation Letter and each Termination
Letter.
"Loan Party" has the meaning specified in Section 4.01.
"Margin Stock" means margin stock within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System.
"Master Bottling Agreement" means the Master Bottling Agreement
dated March 30, 1999, between the Company and Pepsi or any successor or
replacement agreement that confers substantially the same benefits on the
Company as the Master Bottling Agreement conferred on the date hereof.
"Material Adverse Change" means any material adverse change in the
financial condition, operations or properties of the Company or the Company and
its Subsidiaries (including the Guarantor) taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, operations or properties of the Company and its
Subsidiaries (including the Guarantor) taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any promissory note
or (c) the ability of the Company to perform its obligations under this
Agreement or any promissory note.
"Material Subsidiary" means each Subsidiary of the Company which is
a "significant subsidiary" as that term is defined in Rule 1-02(w) of the
Regulation S-X under the Securities Act of 1933, as amended, as such rule is in
effect as of the date hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating of the Company's
Index Debt then most recently announced by Moody's.
"New Lender" means, for purposes of Section 2.05(c), an Eligible
Assignee (which may be a Lender) selected by the Company with (in the case of a
New Lender that is not already a Lender) prior consultation with the Agent.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(b).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
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"Pepsi" means PepsiCo, Inc., a North Carolina corporation.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Principal Property" means any single manufacturing or processing
plant, office building, or warehouse owned or leased by the Company, a
Restricted Subsidiary or the Guarantor other than a plant, warehouse, office
building, or portion thereof which, in the opinion of the Company's Board of
Directors, is not of material importance to the business conducted by the
Company, its Restricted Subsidiaries and the Guarantor as an entirety.
"Rating" means the ▇▇▇▇▇'▇ Rating or the S&P Rating, as the case may
be.
"Rating Level Change" means a change in the ▇▇▇▇▇'▇ Rating or the
S&P Rating that results in a change from one Rating Level Period to another,
which Rating Level Change shall be deemed to take effect on the date on which
the relevant change in rating is first announced by Moody's or S&P.
"Rating Level Period" means a Rating Level 1 Period, a Rating Level
2 Period, a Rating Level 3 Period, a Rating Level 4 Period or a Rating Level 5
Period; provided that:
(i) "Rating ▇▇▇▇▇ ▇ Period" means a period during which the
▇▇▇▇▇'▇ Rating is at or above A2 or the S&P Rating is at or
above A;
(ii) "Rating Level 2 Period" means a period that is not a Rating
Level 1 Period, during which the ▇▇▇▇▇'▇ Rating is at or above
A3 or the S&P Rating is at or above A-;
(iii) "Rating Level 3 Period" means a period that is not a Rating
Level 1 Period or a Rating Level 2 Period, during which the
▇▇▇▇▇'▇ Rating is at or above Baa1 or the S&P Rating is at or
above BBB+;
(iv) "Rating Level 4 Period" means a period that is not a Rating
Level 1 Period, a Rating Level 2 Period or a Rating Level 3
Period, during which the ▇▇▇▇▇'▇ Rating is at or above Baa2 or
the S&P Rating is at or above BBB; and
(v) "Rating Level 5 Period" means a period that is not a Rating
Level 1 Period, a Rating Level 2 Period, a Rating Level 3
Period or a Rating Level 4 Period;
and provided, further, that if the ▇▇▇▇▇'▇ rating and the S&P Rating differ by
more than one Rating Level, then the applicable Rating Level Period shall be one
Rating Level lower than the Rating Level resulting from the application of the
higher of such ratings (for which purpose
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Rating Level 1 is the highest and Rating Level 5 is the lowest); and provided,
further, that any period during which there is no ▇▇▇▇▇'▇ Rating or there is no
S&P Rating shall be a Rating Level 5 Period.
"Reference Banks" means JPMorgan, Citibank, N.A. and Bank of
America, N.A. (and any successors thereof).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed more than 50% of
the then aggregate unpaid principal amount of the Revolving Credit Advances
(excluding Competitive Bid Advances) owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having more than 50% of the aggregate amount
of the Commitments.
"Restricted Subsidiary" means at any time any Subsidiary of the
Company except a Subsidiary which is at the time an Unrestricted Subsidiary.
"Revolving Credit Advance" means an advance by a Lender to a
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"S&P" means Standard & Poors Rating Services or any successor
thereto.
"S&P Rating" means, at any time, the rating of the Company's Index
Debt then most recently announced by S&P.
"SPC" has the meaning specified in Section 8.07(e).
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership or
joint venture or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
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"Substitution Date" has the meaning specified in Section 2.17(c).
"Substitution Letter" has the meaning specified in Section 2.17(c).
"Termination Date" means April 30, 2008 or, if earlier, the date of
termination in whole of the Commitments pursuant to Section 2.05(a) or 6.01 or,
in the case of any Lender whose Commitment is extended pursuant to Section
2.06(c), the date to which such Commitment is extended; provided in each case
that if any such date is not a Business Day, the relevant Termination Date of
such Lender shall be the immediately preceding Business Day.
"Termination Letter" has the meaning specified in Section 2.17(b).
"364-Day Facility" means the 364-Day Credit Agreement dated as of
April 30, 2003 among the Company, the Guarantor, certain banks, financial
institutions and other institutional lenders, and JPMorgan, as agent, as from
time to time amended.
"Type" has the meaning specified in the definition of "Revolving
Credit Advance."
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company
(not at the time designated a Restricted Subsidiary) (i) the major part of whose
business consists of finance, banking, credit, leasing, insurance, financial
services, or other similar operations, or any continuation thereof, (ii)
substantially all the assets of which consist of the capital stock of one or
more such Subsidiaries, or (iii) designated as such by the Company's Board of
Directors and (b) the Guarantor. Any Subsidiary designated as a Restricted
Subsidiary may be designated as an Unrestricted Subsidiary.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar actions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with GAAP; provided that, if the
Company notifies the Agent that the Company wishes to amend any provisions
hereof to eliminate the effect of any change in GAAP (or if the Agent notifies
the Company that the Required Lenders wish to amend any provision hereof for
such purpose), then such provision shall be applied on the basis of GAAP in
effect immediately
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before the relevant change in GAAP became effective, until either such notice is
withdrawn or such provision is amended in a manner satisfactory to the Company
and the Required Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to the Company and any Borrowing Subsidiary from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount set
forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(d), as such
amount may be reduced pursuant to Section 2.05(a) or increased pursuant to
Section 2.05(c) (such Lender's "Commitment"), provided that the aggregate amount
of the Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Bid Advances then outstanding
and such deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "Competitive
Bid Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, (i) an aggregate amount equal to the amount by which the aggregate amount
of a proposed Competitive Bid Borrowing requested by the Company exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by the Company in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing or (ii) the aggregate amount of the unused Commitments, after giving
effect to any Competitive Bid Reductions then in effect) and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Commitment, each Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or the date
of the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by the Company (on its own behalf
and on behalf of any Borrowing Subsidiary) to the Agent, which shall give to
each Lender prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telecopier or telex, confirmed promptly in writing, in substantially the form
of Exhibit A-1 hereto, specifying therein the requested (i) date of such
Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving
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Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing,
(iv) in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit Advance and (v)
the name of the relevant Borrower (which shall be the Company or a Borrowing
Subsidiary). Each Lender shall, before 11:00 A.M. (New York City time), in the
case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or
before 1:00 P.M. (New York City time), in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Revolving Credit Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such same day funds available to the relevant Borrower
at such Borrower's account at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Company may not select Eurodollar Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 and
(ii) the Eurodollar Rate Advances may not be outstanding as part of more than
six separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the relevant Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Company shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and such Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the Agent, at
(i) in the case of a Borrower, the interest rate applicable at the time to
Revolving Credit Advances comprising such Revolving Credit Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Credit
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Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement and shall be made available in same day funds to the relevant
Borrower's account at the Agent's address referred to in Section 8.02.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances.
(a) Each Lender severally agrees that each Borrower may make
Competitive Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the date occurring 7
days prior to the Termination Date in the manner set forth below; provided that,
following the making of each Competitive Bid Borrowing, the aggregate amount of
the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(b) The Company (on its own behalf and on behalf of any Borrowing
Subsidiary) may request a Competitive Bid Borrowing under this Section 2.03 by
delivering to the Agent, by telecopier or telex, confirmed promptly in writing,
a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit A-2 hereto, specifying therein
(u) the date of such proposed Competitive Bid Borrowing, (v) the aggregate
amount of such proposed Competitive Bid Borrowing, (w) the maturity date for
repayment of each Competitive Bid Advance to be made as part of such Competitive
Bid Borrowing (which maturity date may not be earlier than the date occurring 7
days after the date of such Competitive Bid Borrowing or later than the
Termination Date), (x) the interest payment date or dates relating thereto, (y)
the name of the Borrower, and (z) any other terms to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York City time) (A) at
least one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Company shall specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the Lenders shall be fixed
rates per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least four
Business Days prior to the date of the proposed Competitive Bid Borrowing, if
the Company shall instead specify in the Notice of Competitive Bid Borrowing
another basis to be used by the Lenders in determining the rates of interest to
be offered by them (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing received by
it from the Company by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(c) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the relevant
Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates
of interest specified by such Lender in its
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sole discretion, by notifying the Agent (which shall give prompt notice thereof
to the Company), before 10:00 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances, and three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which amounts may,
subject to the proviso to the first sentence of Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid Advance;
provided that if the Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Company of such
offer before 9:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the Agent, before
10:00 A.M. (New York City time) on the date on which notice of such election is
to be given to the Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any Lender to give such
notice shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(d) The Company shall, in turn, before 11:00 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, and before 1:00
P.M. (New York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (c) above, by giving notice to the
Agent of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and equal to
or less than the maximum amount, notified to the Company by the
Agent on behalf of such Lender for such Competitive Bid Advance
pursuant to paragraph (c) above) to be made by each Lender as part
of such Competitive Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (c) above by giving the Agent
notice to that effect. If the Company accepts any offers made by
Lenders pursuant to paragraph (c) above, such offers shall be
accepted in the order of the lowest to highest interest rates or, if
two or more Lenders offer to make Competitive Bid Advances at the
same interest rate, such offers, if any, shall be accepted in
proportion to the amount offered by each such Lender at such
interest rate notwithstanding any minimum specified by such Lender
in its notice given pursuant to paragraph (c) above. The Company may
not accept offers in excess of the amount specified in accordance
with paragraph (a) above.
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(e) If the Company notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (d)(x) above, the Agent shall give
prompt notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(f) If the Company accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (d)(y) above, the Agent shall in turn
promptly notify (A) each Lender that has made an offer as described in paragraph
(c) above, of the date and aggregate amount of such Competitive Bid Borrowing
and whether or not any offer or offers made by such Lender pursuant to paragraph
(c) above have been accepted by the Company, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount
of each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent
has received forms of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by the
Agent of such funds, the Agent will make such same day funds available to the
relevant Borrower at such Borrower's account at the Agent's address referred to
in Section 8.02. Promptly after each Competitive Bid Borrowing the Agent will
notify each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such Competitive
Bid Reduction commenced and will terminate.
(g) Each Competitive Bid Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Company shall be in
compliance with the limitation set forth in the proviso to the first sentence of
paragraph (a) above.
(h) Within the limits and on the conditions set forth in this
Section 2.03, each Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (j) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(i) Each Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance to such Borrower, on the maturity
date of such Competitive Bid Advance (such maturity date being that specified by
the Company for repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to paragraph (b) above and
provided in the promissory note, if any, evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance. No
Borrower shall have any right to prepay any principal amount of any Competitive
Bid Advance unless (x) such Borrower obtains the prior written consent of the
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Lender which made such Competitive Bid Advance, or (y), such prepayment is made
on the terms, specified by the Company for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to paragraph (b)
above and set forth in the promissory note, if any, evidencing such Competitive
Bid Advance.
(j) Each Borrower shall pay interest on the unpaid principal amount
of each Competitive Bid Advance to such Borrower from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to paragraph (c) above, payable
on the interest payment date or dates specified by such Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to paragraph (b) above, as provided in the promissory note,
if any, evidencing such Competitive Bid Advance.
(k) At its option, the Company (on its own behalf and on behalf of
any Borrower) may request a Competitive Bid Borrowing directly from the Lenders;
provided that it follows the procedures set forth in this Section 2.03 and
promptly delivers, by telecopier or telex, a copy of the Notice of Competitive
Bid Borrowing and notice in writing of the results of such request to the Agent.
(l) The indebtedness of each Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall, if requested by the applicable Lender, be evidenced by a
separate promissory note of such Borrower payable to the order of the Lender
making such Competitive Bid Advance.
SECTION 2.04. Fees.
(a) Facility Fee. The Company agrees to pay to the Agent for the
account of each Lender a facility fee on the amount of such Lender's Commitment
irrespective of usage, from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date (on a daily basis), at the Applicable Facility Fee Rate,
payable in arrears quarterly on the last day of each March, June, September and
December and on the Termination Date, commencing June 30, 2003.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
(c) Utilization Fees. The Company shall pay to the Agent for the
account of each Lender a utilization fee on the aggregate outstanding principal
amount of such Lender's Advances for each day on which the aggregate outstanding
amount of the Advances exceeds 33-1/3% of the aggregate Commitments, from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date (on a daily basis),
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at the Applicable Utilization Fee rate, payable on each day on which interest is
payable under Section 2.07, and on the Termination Date.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) The Company shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that (x) the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Advances then
outstanding, and (y) once terminated, a portion of a Commitment shall not be
reinstated except pursuant to Section 2.05(c).
(b) If any Lender shall make a demand under Section 2.11 or 2.14 or
if the obligation of any Lender to make Eurodollar Rate Advances shall have been
suspended pursuant to Section 2.12, the Company shall have the right, upon at
least ten Business Days' notice, to terminate in full the Commitment of such
Lender or to demand that such Lender assign to one or more Eligible Assignees
all of its rights and obligations under this Agreement in accordance with
Section 8.07. If the Company shall elect to terminate in full the Commitment of
any Lender pursuant to this Section 2.05(b), the Company shall pay to such
Lender, on the effective date of such Commitment termination, an amount equal to
the aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement,
whereupon such Lender shall cease to be a party hereto.
(c) (i) Not more than once in any calendar year, the Company may
propose to increase the aggregate amount of the Commitments by an aggregate
amount of $25,000,000 or an integral multiple of $1,000,000 in excess thereof (a
"Proposed Aggregate Commitment Increase") in the manner set forth below,
provided that:
(1) no Default shall have occurred and be continuing either as of
the date on which the Company shall notify the Agent of its request to
increase the aggregate amount of the Commitments or as of the related
Increase Date (as hereinafter defined); and
(2) after giving effect to any such increase, the aggregate amount
of the Commitments shall not exceed $500,000,000.
(ii) The Company may request an increase in the aggregate amount of
the Commitments by delivering to the Agent a notice (an "Increase Notice"; the
date of delivery thereof to the Agent being the "Increase Notice Date")
specifying (1) the Proposed Aggregate Commitment Increase, (2) the proposed date
(the "Increase Date") on which the Commitments would be so increased (which
Increase Date may not be fewer than 30 nor more than 60 days after the Increase
Notice Date) and (3) the New Lenders, if any, to whom the Company desires to
offer the opportunity to commit to all or a portion of the Proposed Aggregate
Commitment Increase.
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The Agent shall in turn promptly notify each Lender of the Company's request by
sending each Lender a copy of such notice.
(iii) Not later than the date five days after the Increase Notice
Date, the Agent shall notify each New Lender, if any, identified in the related
Increase Notice of the opportunity to commit to all or any portion of the
Proposed Aggregate Commitment Increase. Each such New Lender may irrevocably
commit to all or a portion of the Proposed Aggregate Commitment Increase (such
New Lender's "Proposed New Commitment") by notifying the Agent (which shall give
prompt notice thereof to the Company) before 11:00 A.M. (New York City time) on
the date that is 10 days after the Increase Notice Date; provided that:
(1) the Proposed New Commitment of each New Lender shall be in an
amount not less than $25,000,000; and
(2) each New Lender that submits a Proposed New Commitment shall
enter into an agreement in form and substance satisfactory to the Company
and the Agent pursuant to which such New Lender shall undertake a
Commitment (and, if any such New Lender is already a Lender, its
Commitment shall be in addition to such Lender's Commitment hereunder on
such date), and shall pay to the Agent a processing and recordation fee of
$3,500.
(iv) If the aggregate Proposed New Commitments of all of the New
Lenders shall be less than the Proposed Aggregate Commitment Increase, then
(unless the Company otherwise requests) the Agent shall, on or prior to the date
that is 15 days after the Increase Notice Date, notify each Lender of the
opportunity to so commit to all or any portion of the Proposed Aggregate
Commitment Increase not committed to by New Lenders pursuant to Section
2.05(c)(iii). Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to commit to all or a portion of such remainder (such Lender's
"Proposed Increased Commitment") by notifying the Agent (which shall give prompt
notice thereof to the Company) no later than 11:00 A.M. (New York City time) on
the date five days before the Increase Date.
(v) If the aggregate amount of Proposed New Commitments and Proposed
Increased Commitments (such aggregate amount, the "Total Committed Increase")
equals or exceeds $25,000,000, then, subject to the conditions set forth in
Section 2.05(c)(i):
(1) effective on and as of the Increase Date, the aggregate amount
of the Commitments shall be increased by the lesser of the proposed
aggregate Committed Increase and the Total Committed Increase and shall be
allocated among the New Lenders and the Lenders as provided in Section
2.05(c)(vi); and
(2) on the Increase Date, if any Revolving Loans are then
outstanding, the Company shall borrow Revolving Loans from all or certain
of the Lenders and/or (subject to compliance by the Company with Section
8.04(d)) prepay Revolving Loans of all or certain of the Lenders such
that, after giving effect thereto, the Revolving Loans (including, without
limitation, the Types and Interest Periods thereof) shall be held by the
Lend-
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ers (including for such purposes New Lenders) ratably in accordance with
their respective Commitments.
If the Total Committed Increase is less than $25,000,000, then the aggregate
amount of the Commitments shall not be changed pursuant to this Section 2.05(c).
(vi) The Total Committed Increase shall be allocated among New
Lenders having Proposed New Commitments and Lenders having Proposed Increased
Commitments as follows:
(1) If the Total Committed Increase shall be at least $25,000,000
and less than or equal to the Proposed Aggregate Commitment Increase, then
(x) the initial Commitment of each New Lender shall be such New Lender's
Proposed New Commitment and (y) the Commitment of each Lender shall be
increased by such Lender's Proposed Increased Commitment.
(2) If the Total Committed Increase shall be greater than the
Proposed Aggregate Commitment Increase, then the Total Committed Increase
shall be allocated:
(x) first to New Lenders (to the extent of their
respective Proposed New Commitments) in such a manner as the
Company shall agree; and
(y) then to Lenders on a pro rata basis based on the
ratio of each Lender's Proposed Increased Commitment (if any)
to the aggregate amount of the Proposed Increased Commitments
of all of the Lenders.
(vii) No increase in the Commitments contemplated hereby shall
become effective until the Agent shall have received (x) promissory notes in
respect of the Revolving Loans payable to each New Lender and each other Lender
whose Commitment is being increased that, in either case, shall have requested
such promissory notes at least two Business Days prior to the Increase Date, and
(y) evidence satisfactory to the Agent (including an update of the opinion of
counsel provided pursuant to Section 3.01(g)(v)) that such increases in the
Commitments, and borrowings thereunder, have been duly authorized.
SECTION 2.06. Repayment of Revolving Credit Advances, Evidence of
Indebtedness and Extension of Termination Date.
(a) The Company and each Borrower shall repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to such
Lender resulting from each Advance made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The Agent shall maintain accounts in which it shall record (i) the
amount of each Advance made hereunder, the Type thereof and the Interest Period,
if any, applicable thereto, (ii) the amount of any principal or interest due and
payable or to
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become due and payable from the Borrowers to each Lender hereunder and (iii) the
amount of any sum received by the Agent hereunder for the account of the Lenders
and each Lender's share thereof. The entries made in the accounts maintained
pursuant to this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of any Borrower to repay the Advances in
accordance with the terms of this Agreement. Any Lender may request that
Advances made by it be evidenced by a promissory note. In such event, the
applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Agent. Thereafter, the Advances evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 8.07)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
(c) The Company may by written notice to the Agent, not more than 90
nor less than 60 days prior to the Termination Date then in effect, request that
the Termination Date then in effect be extended for a further period of one
year. Such request shall be irrevocable and binding upon the Company. The Agent
shall promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it will notify the Agent, in writing, of its decision to do so not
more than 30 nor less than 20 days before said date. The Commitment of any
Lender that fails to accept (or fails to respond to) the Company's request for
extension of the Termination Date (a "Declining Lender") shall be terminated on
the Termination Date theretofore in effect (without regard to extension by other
Lenders). The Extending Lenders, or any of them, shall then have the right to
increase their respective Commitments by an aggregate amount up to the amount of
all Declining Lenders' Commitments, and, to the extent of any shortfall, the
Company shall have the right to require any Declining Lender to assign in full
its rights and obligations under this Agreement to an Eligible Assignee
designated by the Company that agrees to accept all of such rights and
obligations (a "Replacement Lender"), provided that (i) such increase and/or
such assignment is otherwise in compliance with Section 8.07, (ii) such
Declining Lender receives payment in full of an amount equal to the principal
amount of all Advances owing to such Declining Lender, together with accrued
interest thereon to the date of such assignment and all other amounts payable to
such Declining Lender under this Agreement and (iii) any such increase shall be
effective on the Termination Date theretofore in effect and any such assignment
shall be effective on the date specified by the Company and agreed to by the
Replacement Lender and the Agent. If (i) Extending Lenders and/or Replacement
Lenders provide Commitments in an aggregate amount equal to 51% of the aggregate
amount of the Commitments outstanding immediately prior to the Termination Date
in effect at the time the Company requests such extension, and (ii) no Default
shall have occurred and be continuing immediately prior to said Termination
Date, the Termination Date shall be extended by one year (except that, if the
date on which the Termination Date is to be extended is not a Business Day, such
Termination Date as so extended shall be the next preceding Business Day) from
the effective date set forth in an Extension Agreement, in substantially the
form in Exhibit A-3 hereto, which has been duly completed and signed by the
Company, the Agent and the Extending Lenders and Replacement Lenders party
thereto. Such Extension Agreement shall be executed and delivered no earlier
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than 30 days prior to the Termination Date then in effect and the effective date
shall be no earlier than 29 days prior to the Termination Date then in effect.
No extension of the Commitments pursuant to this Section 2.06(c) shall be
legally binding on any party hereto unless and until such party executes and
delivers a counterpart of such Extension Agreement.
SECTION 2.07. Interest on Revolving Credit Advances. Each Borrower shall
pay interest on the unpaid principal amount of each Revolving Credit Advance
made to such Borrower from the date of such Revolving Credit Advance until such
principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the last day
of each March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(b) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such Revolving Credit Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Revolving Credit Advance
plus (y) the Applicable Margin, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
SECTION 2.08. Interest Rate Determination.
(a) If the Eurodollar Rate does not appear on Page 3750 of the
Telerate Service (or any successor page), each Reference Bank agrees to furnish
to the Agent timely information for the purpose of determining each Eurodollar
Rate. If the Eurodollar Rate does not appear on said Page 3750 (or any successor
page), and if any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such interest
rate, the Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Agent shall give
prompt notice to the Company and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.07, and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(b).
(b) If, due to a major disruption in the interbank funding market
with respect to any Eurodollar Rate Advances, the Required Lenders notify the
Agent that the Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii)
the obligation of the Lenders to
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make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Company and the Lenders that
the circumstances causing such suspension no longer exist.
(c) If the Company shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Company and the Lenders and the Company will be deemed
to have selected an Interest Period of one month.
(d) If the aggregate unpaid principal amount of Eurodollar Rate
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall automatically Convert
into Base Rate Advances on the last day of the Interest Period applicable
thereto.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If the Eurodollar Rate does not appear on Page 3750 of the
Telerate Service (or any successor page) and fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Company and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Company may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under
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Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
Company.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances. The
Company may, upon notice not later than 11:00 A.M. (New York City time) on the
date of such payment, in the case of Base Rate Advances, and two Business Days'
notice, in the case of Eurodollar Rate Advances, to the Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Company shall, prepay the outstanding principal amount of
the Revolving Credit Advances comprising part of the same Revolving Credit
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate Advance, the Company shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(d).
SECTION 2.11. Increased Costs.
(a) If, due to either (i) the introduction of or any change in any
law or regulation or in the interpretation or administration of any law or
regulation by any governmental authority charged with the interpretation or
administration thereof or (ii) the compliance with any guideline or request from
any central bank or other governmental authority that would be complied with
generally by similarly situated banks acting reasonably (whether or not having
the force of law), there shall be any increase in the cost to any Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances or
LIBO Rate Advances by an amount deemed by such Lender to be material, then the
Company shall from time to time, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Company
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error. Notwithstanding the foregoing, no Lender shall be
entitled to request compensation under this paragraph with respect to any
Competitive Bid Advance if the change giving rise to such request was applicable
to such Lender at the time of submission of such Lender's offer to make such
Competitive Bid Advance.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other governmental or regulatory
authority which becomes effective after the date hereof, there shall be any
increase in the amount of capital required or expected to be maintained by any
Lender or any corporation controlling such Lender and the amount of such capital
is increased by or based upon the existence of such Lender's Advances or
commitment to lend hereunder and other commitments of this type by an amount
deemed by such Lender to be material, then, upon demand by such Lender (with a
copy of such demand to the Agent), the Company shall pay to
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the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's Advances or commitment to lend hereunder. A certificate as to
such amounts submitted to the Company and the Agent by such Lender shall be
conclusive and binding for all purposes as to the calculations therein, absent
manifest error. Such certificate shall be in reasonable detail and shall certify
that the claim for additional amounts referred to therein is generally
consistent with such Lender's treatment of similarly situated customers of such
Lender whose transactions with such Lender are similarly affected by the change
in circumstances giving rise to such payment, but such Lender shall not be
required to disclose any confidential or proprietary information therein.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent (and provide to the Company an
opinion of counsel to the effect) that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar
Rate Advance or LIBO Rate Advance, as the case may be, of such Lender will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a), as the case may
be, and (ii) the obligation of such Lender to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Company and such Lender that the circumstances causing
such suspension no longer exist and such Lender shall make the Base Rate
Advances in the amount and on the dates that it would have been requested to
make Eurodollar Rate Advances had no such suspension been in effect.
SECTION 2.13. Payments and Computations.
(a) Each Borrower shall make each payment hereunder not later than
11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Agent
at the Agent's Account in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees or usage fees ratably (other than amounts payable
pursuant to Section 2.03, 2.04(b), 2.05(b), 2.11, 2.14 or 8.04(d)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
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(b) All computations of interest based on the Base Rate and of
facility fees and of usage fees shall be made by the Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or facility fees or usage fees are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or facility fee or usage fee, as the case may
be; provided, however, that, if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Lenders hereunder that a
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes.
(a) Each Lender is exempt from any withholding imposed under the
laws of the United States in respect of any fees, interest or other payments to
which it is entitled pursuant to this Agreement or any promissory notes issued
hereunder (the "Income") because (i) the Lender is organized under the laws of
the United States; (ii) the Income is effectively connected with the conduct of
a trade or business within the United States within the meaning of Section 871
of the Internal Revenue Code; or (iii) the Income is eligible for an exemption
by reason of a tax treaty. The Agent is exempt from any withholding tax imposed
under the laws of the United States in respect of the Income because the Agent
is organized under the laws of the United States.
(b) Each Lender organized under the laws of a jurisdiction outside
the United States (each, a "Foreign Lender") shall, on or prior to the date of
its execution and delivery of this Agreement in the case of each Initial Lender,
and on the date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Foreign Lender and from time to time thereafter
if requested in writing by the Company or the Agent, provide the Agent and the
relevant Borrower with Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Foreign Lender is exempt or entitled to a reduced
rate of United States
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withholding tax on any Income that is the subject of such forms. If the form
provided by a Foreign Lender at the time such Foreign Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, or in excess of the rate applicable to the Foreign Lender
assignor on the date of the Assignment and Acceptance pursuant to which it
became a Foreign Lender, in the case of each other Foreign Lender, withholding
tax at such rate shall be considered excluded from Taxes as defined in Section
2.14(c).
(c) Based on Section 2.14(a) and (b), any and all payments by any
Borrower hereunder or under any promissory notes issued hereunder shall be made
free and clear of and without deduction for any present United States federal
income withholding taxes imposed on a Foreign Lender under the Internal Revenue
Code (such withholding taxes being hereinafter referred to as "Taxes").
(d) If, as a result of the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any United States law or any
tax treaty (or in the application or official interpretation of any law or any
tax treaty) that occurs on or after the date a Foreign Lender first becomes a
party to this Agreement (a "Change in Law"), a Foreign Lender cannot comply with
Section 2.14(b) or, if despite such compliance, any Borrower shall be required
to deduct any Taxes from or in respect of any Income, then: (i) the sum payable
to such Foreign Lender shall be increased as may be necessary so that after
making all required deductions for such Taxes (including deductions applicable
to additional sums payable under this Section 2.14) such Foreign Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. Notwithstanding the foregoing, each
Borrower shall be entitled to pay any Taxes in any lawful manner so as to reduce
any deductions and such Foreign Lender shall to the extent it is reasonably able
provide any documentation or file any forms as may be required by the Internal
Revenue Service or any other foreign governmental agency. In addition, if any
Foreign Lender or the Agent (in lieu of such Foreign Lender), as the case may
be, is required to pay directly any Taxes as a result of a Change in Law because
a Borrower cannot or does not legally or timely do so, the Company shall
indemnify such Foreign Lender or Agent for payment of such Taxes, without
duplication of, or increase in, the amount of Taxes otherwise due to the Foreign
Lender.
(e) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (excluding any income or franchise taxes, business taxes or
capital taxes of any nature) that arise from the execution, delivery or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes"). If a Lender is required to pay directly Other
Taxes because a Borrower cannot or does not legally or timely do so, the Company
shall indemnify such Lender for such payment of Other Taxes.
(f) Within 30 days after the date of any payment of Taxes or foreign
withholding taxes, the Company shall furnish to the Agent, at its address
referred to in Section 8.02, the original or a certified copy of a receipt
evidencing payment thereof. Prior to making any
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payment hereunder by or on behalf of any Borrower through an account or branch
outside the United States or on behalf of any Borrower by a payor that is not a
United States person (a "Foreign Payment"), such Borrower shall determine that
no foreign withholding taxes are payable in respect thereof, and at its expense,
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion of
counsel acceptable to the Agent, in either case stating that such Foreign
Payment is exempt from or not subject to foreign withholding taxes. Each Lender
shall cooperate with each Borrower's efforts described in this subsection by
providing to the extent reasonably within its means any forms requested by such
Borrower substantiating an exemption from foreign withholding taxes required by
any governmental agency. For purposes of this subsection (f), the terms "United
States" and "United States person" shall have the meaning specified in Section
7701 of the Internal Revenue Code. If, as a result of the enactment,
promulgation, execution or ratification of, or any change in or amendment to,
any applicable foreign law or any tax treaty (or in the application or official
interpretation of any law or any tax treaty) that occurs on or after the date a
tax opinion is rendered pursuant to the terms of this subsection, and which
renders such tax opinion incorrect as to the absence of any foreign withholding
tax (a "Foreign Change in Law"), any Borrower shall be required to deduct any
foreign withholding taxes from or in respect of any Income, then: (i) the sum
payable to the applicable Lender shall be increased as may be necessary so that
after making all required deductions for foreign withholding taxes (including
deductions applicable to additional sums payable under this Section 2.14) such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Notwithstanding
the foregoing, each Borrower shall be entitled to pay any foreign withholding
taxes in any lawful manner so as to reduce any deductions and such Lender shall
to the extent it is reasonably able provide any documentation or file any forms
as may be required by the Internal Revenue Service or any other foreign
governmental agency. In addition, if any Lender is required to pay directly any
foreign withholding tax in respect of any Foreign Payments made pursuant to this
Agreement because a Borrower cannot or does not legally or timely do so, the
Company shall indemnify such Lender for payment of such tax.
(g) For any period with respect to which a Lender has failed to
comply with the requirements of subsection (b) or (f) relating to certain forms
intended to reduce withholding taxes (other than if such failure is due to a
Change in Law or a Foreign Change in Law), such Lender shall not be entitled to
indemnification under subsection (d) or (f).
(h) Upon a Change in Law or the imposition of any foreign
withholding tax in respect of Foreign Payments, a Lender shall, upon the written
request of and at the expense of the Company, use reasonable efforts to change
the jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such taxes that may
thereafter accrue and would not, in the reasonable judgment of such Lender,
cause the imposition on such Lender of any material legal or regulatory burdens.
(i) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of the Company contained in
this Section 2.14 shall
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survive the payment in full of principal and interest hereunder until the
applicable statute of limitations relating to the payment of any Taxes under
Section 2.14(d) has expired.
(j) Any request by any Lender for payment of any amount under this
Section 2.14 shall be accompanied by a certification that such Lender's claim
for said amount is generally consistent with such Lender's treatment of
similarly situated customers of such Lender whose transactions with such Lender
are similarly affected by the change in circumstances giving rise to such
payment, but such Lender shall not be required to disclose any confidential or
proprietary information therein.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.05(b), 2.11, 2.14 or 8.04(d)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and the Company agrees that such proceeds shall be used) for general
corporate purposes of the Company and its Subsidiaries, including commercial
paper backstop.
SECTION 2.17. Borrowings by Borrowing Subsidiaries; Substitution of
Borrower.
(a) The Company may, at any time or from time to time, designate one
or more Subsidiaries (including the Guarantor) as Borrowers hereunder by
furnishing to the Agent a letter (a "Designation Letter") in duplicate, in
substantially the form of Exhibit D, duly completed and executed by the
Company and such Subsidiary. Upon any such designation of a Subsidiary,
such Subsidiary shall be a Borrowing Subsidiary and a Borrower entitled to
borrow Revolving Credit Advances and Competitive Bid Advances on and
subject to the terms and conditions of this Agreement.
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(b) If all principal of and interest on all Advances made to any
Borrowing Subsidiary have been paid in full, the Company may terminate the
status of such Borrowing Subsidiary as a Borrower hereunder by furnishing to the
Agent a letter (a "Termination Letter") in substantially the form of Exhibit F,
duly completed and executed by the Company. Any Termination Letter furnished
hereunder shall be effective upon receipt by the Agent, which shall promptly
notify the Lenders, whereupon the Lenders shall, upon payment in full of all
amounts owing by such Borrower hereunder, promptly deliver to the Company
(through the Agent) the promissory notes, if any, of such former Borrower.
Notwithstanding the foregoing, the delivery of a Termination Letter with respect
to any Borrower shall not terminate (i) any obligation of such Borrower that
remains unpaid at the time of such delivery (including without limitation any
obligation arising thereafter in respect of such Borrower under Section 2.11 or
2.14) or (ii) the obligations of the Company under Article IX with respect to
any such unpaid obligations; provided, that if the status of such Borrowing
Subsidiary has been terminated as aforesaid because the Company has sold or
transferred its interest in such Subsidiary, and the Company so certifies to the
Agent at the time of delivery of such Termination Letter, and subject to payment
of said principal and interest, (i) such Subsidiary shall, automatically upon
the effectiveness of the delivery of such Termination Letter and certification,
cease to have any obligation under this Agreement and (ii) the Company shall
automatically be deemed to have unconditionally assumed, as primary obligor, and
hereby agrees to pay and perform, all of such obligations.
(c) In addition to the foregoing, the Company may, at any time when
there are no Advances outstanding hereunder and upon not less than 10 Business
Days' notice, irrevocably elect to terminate its right to be a Borrower
hereunder as of the date (which shall be a Business Day) specified in such
Substitution Letter (the "Substitution Date") and designate the Guarantor as a
Borrower hereunder by furnishing to the Agent (x) a letter (a "Substitution
Letter"), in substantially the form of Exhibit E duly completed and executed by
the Company and the Guarantor, (y) a certificate signed by a duly authorized
officer of the Company, and a certificate signed by a duly authorized officer of
the Guarantor, each dated the Substitution Date, stating that:
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are correct in all material respects on and as of the
Substitution Date, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such designation, that constitutes a Default;
and (z) the Agent shall have received such other corporate documents,
resolutions and legal opinions relating to the foregoing as it, or any Lender
through the Agent, may reasonably request.
SECTION 2.18. Mitigation Obligations. If any Lender requests compensation
under Section 2.11, or if the obligation of any Lender to make or continue
Advances as, or Con-
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vert Advances into, Eurodollar Rate Advances is suspended pursuant to Section
2.12, then, upon the written request of the Company, such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designations or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.11 or would cause such Lender not to be subject to
such suspension, as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not, in the reasonable
judgment of such Lender, cause imposition on such Lender of any material legal
or regulatory burdens or otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND ARTICLE II
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) As of the Effective Date, there shall have occurred no Material
Adverse Change since December 28, 2002 that has not been publicly disclosed.
(b) As of the Effective Date, there shall exist no action, suit,
investigation, litigation or proceeding affecting the Company, or any of its
Subsidiaries (including the Guarantor) pending or, to the knowledge of the
Company's or the Guarantor's executive officers, threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) could reasonably be likely to affect the
legality, validity or enforceability of this Agreement or the consummation of
the transactions contemplated hereby.
(c) As of the Effective Date, nothing shall have come to the
attention of the Lenders during the course of their due diligence investigation
to lead them to believe that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect.
(d) As of the Effective Date, all governmental and third party
consents and approvals necessary in connection with the transactions
contemplated hereby shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lenders) and shall remain in effect.
(e) As of the Effective Date, the Company shall have paid all
accrued fees and expenses of the Agent and the Lenders (including the accrued
fees and expenses of counsel to the Agent, to the extent invoiced at least one
Business Day prior to the Effective Date).
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(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company dated the Effective Date,
stating that:
(i) The representations and warranties contained in Section 4.01 are
correct in all material aspects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(g) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to the
Agent and (except for any notes requested by the Lenders) in sufficient copies
for each Lender:
(i) To the extent any Lender shall have requested, at least one
Business day prior to the Effective Date that its Revolving Credit
Advances be evidenced by a promissory note, a note payable to the order of
such Lender.
(ii) Certified copies of the resolutions of the Board of Directors
of the Company and of the Guarantor approving this Agreement, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Company certifying the names and true signatures of the officers of
the Company authorized to sign this Agreement and the other documents to
be delivered hereunder.
(iv) A certificate of the Secretary or an Assistant Secretary of the
Guarantor certifying the names and true signatures of the officers of the
Guarantor authorized to sign this Agreement and the other documents to be
delivered hereunder.
(v) An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of each
of the Company and the Guarantor, substantially in the form of Exhibit C
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(vi) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
special New York counsel for the Agent.
(vii) Evidence of the termination of the Commitments as defined in
the $250,000,000 5-Year Credit Agreement dated as of April 22, 1999 among
the Company, the Guarantor, certain lenders and The Chase Manhattan Bank,
as Agent and of the payment in full of any and all amounts payable
thereunder.
(viii) The Agent shall have received such other approvals, opinions
or documents as any Lender through the Agent may reasonably request.
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SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and the acceptance
by any Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Company and such Borrower that
on the date of such Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are correct in all material respects on and as of the date of
such Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) in the case of the first Borrowing by a Borrowing Subsidiary, the Agent
shall have received such corporate documents, resolutions and legal opinions
relating to such Borrowing Subsidiary as the Agent may reasonably require.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The
obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, and (ii) on the date of such
Competitive Bid Borrowing the following statements shall be true (and each of
the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by any Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Company and such Borrower
that on the date of such Competitive Bid Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (ii) thereof)) are
correct in all material respects on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing and
to the application of the proceeds therefrom, as though made on and as of such
date; and
(b) No event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
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SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the proposed Effective
Date, as notified by the Company to the Lenders, specifying its objection
thereto. The Agent shall promptly notify the Lenders of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each of
the Company and the Guarantor (each, a "Loan Party") represents and warrants as
follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Guarantor
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by each Loan Party of
this Agreement and the consummation of the transactions contemplated hereby are
within such Loan Party's powers, have been duly authorized by all necessary
corporate or other action, and do not contravene (i) its charter, by-laws or
other organizational documents or (ii) any law or contractual restriction
binding on or materially affecting such Loan Party.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
either Loan Party of this Agreement.
(d) This Agreement has been duly executed and delivered by each Loan
Party. This Agreement is the legal, valid and binding obligation of each Loan
Party enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and equitable principles of general applicability.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 28, 2002, and the related Consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of KPMG Peat Marwick, independent
public accountants, fairly present the financial condition of the Company as at
such date and the results of the operations of the Company for the period ended
on such date, all in accordance with generally accepted accounting principles
consistently applied. Since December 28, 2002, there has been no Material
Adverse Change that has not been publicly disclosed.
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(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting either Loan Party before any court,
governmental agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) would reasonably be likely to affect the
legality, validity or enforceability of this Agreement or any promissory note
issued under this Agreement, if any, or the consummation of the transactions
contemplated hereby.
(g) It is not engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock and no proceeds of any Advance
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose (whether immediate, individual or ultimate) of purchasing or
carrying any Margin Stock, in either case in a manner that would cause the
Advances or any Lender to be in violation of Regulation U.
(h) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of any Borrower only or of
the Company and its Subsidiaries or the Guarantor and its Subsidiaries, in each
case on a Consolidated basis) subject to the provisions of Section 5.02(a) or
(b)(ii) or subject to any restriction contained in any agreement or instrument
between it and any Lender or any Affiliate of any Lender relating to Debt and
within the scope of Section 6.01(d) will be Margin Stock.
(i) Neither Loan Party is an "investment company", a company
"controlled by", or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances nor the application of the proceeds
or repayment thereof by any Borrower will violate any provision of such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws, except where failure so to comply
would not, and would not be reasonably likely to, have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither Loan Party nor
any of its Subsidiaries shall be required to pay or discharge any such tax,
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assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors and such Lien would be reasonably likely
to have a Material Adverse Effect.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that each Loan Party and its Material Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(b) and provided further
that neither Loan Party nor any of its Material Subsidiaries shall be required
to preserve any right or franchise if the Board of Directors of such Loan Party
or such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Loan Party or such Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to such Loan Party, such Subsidiary or the Lenders.
(d) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Company as having been
prepared in accordance with GAAP, it being agreed that delivery of the
Company's Quarterly Report on Form 10-Q will satisfy this requirement;
(ii) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Company, a copy of the annual audit report
for such year for the Company and its Subsidiaries, containing the
Consolidated balance sheet of the Company and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of operations and cash
flows of the Company and its Subsidiaries for such Fiscal Year, in each
case accompanied by an opinion by KPMG Peat Marwick or other independent
public accountants of nationally recognized standing, it being agreed that
delivery of the Company's Annual Report on Form 10-K will satisfy this
requirement;
(iii) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Company setting forth
details of such Default and the action that the Company has taken and
proposes to take with respect thereto; and
(iv) promptly after the sending or filing thereof, copies of all
annual reports and proxy solicitations that the Company sends to any of
its securityholders, and copies of all reports on Form 8-K that the
Company or any Subsidiary files with the Securities and Exchange
Commission.
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SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, neither Loan Party
will:
(a) Secured Debt. Create or suffer to exist, or permit any of its
Restricted Subsidiaries or the Guarantor to create or suffer to exist, any Debt
secured by a Lien on any Principal Property or on any shares of stock of or Debt
of any Restricted Subsidiary or the Guarantor unless such Loan Party or such
Restricted Subsidiary secures or causes such Restricted Subsidiary or the
Guarantor to secure the Advances and all other amounts payable under this
Agreement equally and ratably with such secured Debt, so long as such secured
Debt shall be so secured, unless after giving effect thereto the aggregate
amount of all such Debt so secured does not exceed 15% of Consolidated Net
Tangible Assets; provided that the foregoing restriction does not apply to Debt
secured by:
(i) Liens existing prior to the date hereof;
(ii) Liens on property of, or on shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(iii) Liens in favor of a Loan Party or any Restricted Subsidiary;
(iv) Liens in favor of any governmental bodies to secure progress or
advance payments;
(v) Liens on property, shares of stock or Debt existing at the time
of acquisition thereof (including acquisition through merger or
consolidation) or liens securing Debt incurred to finance all or any part
of the purchase price or cost of construction of property (or additions,
substantial repairs, alterations or substantial improvements thereto),
provided that such Lien and the Debt secured thereby are incurred within
365 days of the later of acquisition or completion of construction (or
addition, repair, alteration or improvement) and full operation thereof;
and
(vi) any extension, renewal or refunding of Debt referred to in the
foregoing clauses (i) to (v), inclusive.
(b) Mergers, Etc. (i) Merge or consolidate with or into any
corporation or (ii) sell, lease, transfer or otherwise dispose of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, unless the Company or the Guarantor would be the acquiring or surviving
party in such transaction and no Event of Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(c) Subsidiary Debt. Permit any Restricted Subsidiary to create,
incur, assume or permit to exist any Debt, except:
(i) Debt of the Borrowing Subsidiaries, if any, created hereunder
and under the 364-Day Facility;
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(ii) Debt existing on the Effective Date;
(iii) Debt of any Subsidiary to any Loan Party or any other
Subsidiary;
(iv) Debt of any Person that becomes a Subsidiary after the date
hereof; provided that such Debt exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary;
(v) any refinancing, refunding or replacement of any Debt permitted
under clause (ii) through (iv) above; and
(vi) other Debt in an aggregate principal amount not exceeding 15%
of Consolidated Net Tangible Assets, computed as of the last day of the
then most recently concluded fiscal quarter of the Company, at any time
outstanding.
(d) Restrictive Agreements. Neither Loan Party will enter into,
incur or permit to exist any agreement or other arrangement that prohibits or
restricts the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to, or otherwise transfer assets to the Company; provided that the
foregoing shall not apply to (i) restrictions and conditions imposed by law or
by this Agreement or the 364-Day Facility, (ii) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, (iii)
restrictions or conditions imposed by any agreement relating to secured Debt
permitted by this Agreement if such restrictions or conditions apply only to the
property or assets securing such Debt, (iv) customary provisions in leases and
other contracts restricting the assignment thereof, (v) any agreement in effect
on the Effective Date, as any such agreement is in effect on such date, (vi) any
agreement binding upon such Subsidiary prior to the date on which such
Subsidiary was acquired by the Company and outstanding on such date, (vii)
customary net worth and other financial maintenance covenants in an agreement
relating to Debt or other obligations incurred in compliance with this
Agreement, and (viii) any agreement refinancing, renewing or replacing any
agreement or Debt referred to in (i) through (vii) above, provided that the
relevant provisions are no more restrictive than those in the agreement or Debt
being refinanced, renewed or replaced.
(e) Ownership. In the case of the Company, cease to own, legally and
beneficially, 75% or more of the membership interests in the Guarantor.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Debt to Capitalization Ratio. Permit the Debt to Capitalization
Ratio as at the last day of any Fiscal Quarter that is not an Alternate Covenant
Date to exceed 0.75 to 1.0.
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(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any Fiscal Quarter that is an Alternate Covenant
Date to exceed 5.0 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of, or interest on,
any Advance or to make any other payment under this Agreement, in each case
within five days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party herein or
by any Borrower (or any of its officers) in connection with this Agreement
(including without limitation by any Borrowing Subsidiary pursuant to any
Designation Letter) shall prove to have been incorrect in any material respect
when made; or
(c) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), 5.02 or 5.03, or (ii) any
Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to either Loan Party by the Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $75,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt or permit (with or without
the giving of notice, the lapse of time or both) the holder or holders of such
Debt or any trustee or agent on its or their behalf to cause any such Debt to
become due prior to its scheduled maturity; or any such Debt shall be declared
to be due and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(e) Any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or
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against such Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or such Loan Party of any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$75,000,000 shall be rendered against any Loan Party or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be an Event of Default under
this Section 6.01(f) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer, which
shall be rated at least "A" by A.M. Best Company, has been notified of, and has
not disputed the claim made for payment of, the amount of such judgment or
order; or
(g) Any event, action or condition with respect to an employee
benefit plan of the Company subject to Title IV of ERISA results in any penalty
or action pursuant to ERISA that has a material adverse effect on the business
or financial condition of either Loan Party and its Subsidiaries, taken as a
whole; or
(h) The Master Bottling Agreement ceases to be valid and binding and
in full force and effect; or Pepsi denies that it has any liability or
obligation under the Master Bottling Agreement and Pepsi ceases performance
thereunder; or
(i) A Change of Control shall occur;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Company; provided, however, that in the event
of an actual or deemed entry of an order for relief with respect to any Loan
Party or any Borrowing Subsidiary under the Federal Bankruptcy Code, (A) the
obligation
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of each Lender to make Advances shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, protest or any notice of any kind, all
of which are hereby expressly waived by each Loan Party.
ARTICLE VII
THE AGENT
Each of the Lenders hereby irrevocably appoints the Agent as its
agent and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.
The bank serving as the Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Loan Parties or any Subsidiary or other Affiliate thereof as if it were
not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 8.01), and (c) except
as expressly set forth herein, the Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to
the Loan Parties or any if their Subsidiaries that is communicated to or
obtained by the bank serving as Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 8.01) or in the absence of its own gross negligence or
wilful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Agent by a Loan
Party or a Lender, and the Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article III or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other
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writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Agent may consult with legal
counsel (who may be counsel for any Loan Party), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Agent may perform any and all of its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor agent approved by the Company, which
approval will not be unreasonably withheld or delayed; provided that such
approval shall not be required if an Event of Default has occurred and is
continuing. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a commercial bank organized
under the laws of the United States or any State thereof, having a combined
capital and surplus of at least $50,000,000 with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointments
as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the Agent's resignation hereunder, the
provisions of this Article and Section 8.04 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) except pursuant to
Section 2.05(b), 2.05(c), 2.15 or 2.17, increase the Commitments of the Lenders
or subject the Lenders to any additional obligations, (b) reduce the principal
of, or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (c) postpone any date fixed for any payment of principal of,
or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, (d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Advances, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (e) release the guarantee as set forth in Section 9.01 or
10.01, or (f) amend this Section 8.01; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Company, any Borrower or the Guarantor, to the Company at its address at ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, Telecopier No.
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Secretary, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇; if to
any Initial Lender, at its Domestic Lending Office specified opposite its name
on Schedule 1 hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at JPMorgan Chase Bank, Loan & Agency
Services, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention of ▇▇▇▇▇▇
▇▇▇▇▇▇ (Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan Chase Bank, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopier
No. (▇▇▇) ▇▇▇-▇▇▇▇); or, as to the Company, any Borrower, the Guarantor or the
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Company and the
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answer back,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
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SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Company agrees to pay on demand all costs and expenses of
the Agent as set forth in the fee letter between the Company and the Agent. The
Company further agrees to pay on demand all reasonable costs and expenses of the
Agent and the Lenders, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Agent and each Lender in connection with
the enforcement of rights under this Section 8.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with this Agreement, any promissory
note issued hereunder, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Advances, whether or not such
investigation, litigation or proceeding is brought by any Borrower, the
Guarantor, their directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to the Agent under paragraph (a) or (b) of this Section 8.04,
each Lender severally agrees to pay to the Agent such Lenders' Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent in
its capacity as such.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Advances
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pursuant to Section 6.01 or for any other reason, the Company shall, upon demand
by such Lender (with a copy of such demand to the Agent), pay to the Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss,
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of the Company contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party or any Borrower
against any and all of the obligations of such Loan Party or such Borrower now
or hereafter existing under this Agreement, whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Company after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Sections 2.01 and 2.03, which shall only become effective upon satisfaction
of the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Loan Parties and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Loan Parties,
each Subsidiary Borrower (if any), the Agent and each Lender and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may, upon ten days' notice to the Agent and with the
consent of the Company (which shall not be unreasonably withheld) and, if
demanded by the Company (following a demand by such Lender pursuant to Section
2.11 or Section 2.14 or a suspension of such Lender's obligation to make or
continue Advances as, or convert Advances into, Eurodollar Rate Advances
pursuant to Section 2.12) upon at least ten days' notice to such Lender and the
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Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Revolving Credit Advances owing to it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances or Competitive Bid Advances
owing to it), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than the lesser of (x)
$25,000,000 and (y) the smallest initial Commitment of any Initial Lender, (iii)
each such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Company pursuant to this Section 8.07(a)
shall be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Company or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register (as defined in clause (d) below), an Assignment and Acceptance,
together with a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this
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Agreement, together with copies of the financial statements referred to in
Section 4.01 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; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and, with respect to Lenders, the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and each Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Loan Parties or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Agent and the Company, the option to provide to the Company all or any
part of any Advance that such Granting Lender would otherwise be obligated to
make to the Company pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by such Granting Lender. Each party hereto agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws
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of the United States or any State thereof. In addition, notwithstanding anything
to the contrary contained in this Section 8.07(e), any SPC may (i) with notice
to, but without the prior written consent of, the Company and the Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Advances to the Granting Lender or to any financial
institutions (consented to by the Company and the Agent) providing liquidity
and/or credit support to or for the account of any SPC to support the funding or
maintenance of Advances and (ii) disclose on a confidential basis any non-public
information relating to its Advances to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC.
(f) Each Lender may, upon notice to the Agent and the Company, sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Advances owing to it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any promissory note issued or assigned to it hereunder, (iv) the
Borrowers, the Guarantor, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Loan Party or any Borrower furnished
to such Lender by or on behalf of any Loan Party or any Borrower; provided that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Confidential
Information relating to the Loan Parties or the Borrowers received by it from
such Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement or any promissory note issued to such Lender
hereunder (including, without limitation, the Advances owing to it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
5-Year Credit Agreement
-50-
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Company, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
Notwithstanding the foregoing and any other provision herein, the Loan Parties
and any Lender (and each employee, representative or other agent of the Loan
Parties and any Lender) may disclose to any and all Persons, without limitation
of any kind, the U.S. federal income tax treatment and tax structure, if any, of
the transactions contemplated by this Agreement (the "Transactions"), other than
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws. For the purposes of this Section 8.08, "tax
structure" is limited to any fact relevant to understanding the U.S. federal
income tax treatment of the Transactions and does not include information
relating to the identity of the Loan Parties.
SECTION 8.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this
5-Year Credit Agreement
-51-
Agreement in any New York State or federal court sitting in New York City. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
SECTION 8.12. WAIVER OF JURY TRIAL. EACH BORROWER, THE GUARANTOR, THE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
ARTICLE IX
COMPANY GUARANTEE
SECTION 9.01. Company Guarantee. Subject to the provisions of this Article
IX, the Company unconditionally and irrevocably guarantees to each Lender and
the Agent and their respective successors and assigns, that: (i) the principal
of, premium, if any, and interest on the Advances to each Borrowing Subsidiary
and, following the Substitution Date, the Guarantor (each a "Guaranteed Party")
and any promissory notes issued by any Guaranteed Party hereunder will be duly
and punctually paid in full when due, whether at maturity, by acceleration, by
redemption or otherwise, and interest on overdue principal, and premium, if any,
and (to the extent permitted by law) interest on any interest, if any, on the
Advances and all other obligations of the Guaranteed Parties to the Lenders or
the Agent hereunder (including fees and expenses) will be promptly paid in full,
all in accordance with the terms hereof; and (ii) in case of any extension of
time of payment or renewal of any of the Advances to any Guaranteed Party or any
of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed, or failing performance of any other obligation of the
Guaranteed Parties to the Lenders or the Agent, for whatever reason, the Company
will be obligated to pay, or to perform or to cause the performance of, the same
immediately. An Event of Default under this Agreement shall constitute an event
of default under this Guarantee, and shall entitle the Lenders to accelerate the
obligations of the Company under this Guarantee in the same manner and to the
same extent as the obligations of the Guaranteed Parties.
The Company hereby agrees that its obligations under this Guarantee
shall be unconditional, irrespective of the validity, regularity or
enforceability of this Agreement, any Designation Letter or the Substitution
Letter, the absence of any action to enforce the same, any waiver or consent by
any Lender or the Agent of this Agreement any Designation Letter or the
Substitution Letter, with respect to any thereof, the entry of any judgment
against any Guaranteed Party, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Company. The Company
5-Year Credit Agreement
-52-
hereby waives and relinquishes: (a) any right to require the Agent, the Lenders
or any Guaranteed Party (each, a "Benefitted Party") to proceed against any
Guaranteed Party or any other Person or to proceed against or exhaust any
security held by a Benefitted Party at any time or to pursue any other remedy in
any secured party's power before proceeding against the Company; (b) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefitted Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest and
notice of any kind (except as expressly required by this Agreement), including
but not limited to notice of the existence, creation or incurring of any new or
additional Debt or obligation or of any action or non-action on the part of the
Company, any Benefitted Party, any creditor of the Company or any Guaranteed
Party or on the part of any other Person whomsoever in connection with any
obligations the performance of which are guaranteed under this Guarantee; (d)
any defense based upon an election of remedies by a Benefitted Party, including
but not limited to an election to proceed against the Company or any other
Guaranteed Party for reimbursement; (e) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of the
principal; (f) any defense arising because of a Benefitted Party's election, in
any proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code. The Company hereby covenants that this Guarantee will not be discharged
except by payment in full of all principal, premium, if any, and interest on the
Advances made to each Guaranteed Party and all other costs provided for under
this Agreement in respect thereof. This is a Guarantee of payment and not of
collectibility.
If any Lender or the Agent is required by any court or otherwise to
return to either the Company or any Guaranteed Party, or any trustee or similar
official acting in relation to either the Company or any Guaranteed Party, any
amount paid by the Company or any Guaranteed Party to the Agent or such Lender,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Company agrees that it will not be entitled to any
right of subrogation in relation to the Lenders or the Agent in respect of any
obligations guaranteed under this Guarantee until payment in full of all
obligations guaranteed hereby. The Company agrees that, as between it, on the
one hand, and the Lenders and the Agent, on the other hand, (x) the maturity of
the obligations guaranteed under this Guarantee may be accelerated as provided
in Article VI hereof for the purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by such Company for the
purpose of this Guarantee.
ARTICLE X
SUBSIDIARY GUARANTEE
5-Year Credit Agreement
-53-
SECTION 10.01. Subsidiary Guarantee. Subject to the provisions of this
Article X, the Guarantor unconditionally and irrevocably guarantees to each
Lender and the Agent and their respective successors and assigns, that: (i) the
principal of, premium, if any, and interest on the Advances and any promissory
note issued hereunder will be duly and punctually paid in full when due, whether
at maturity, by acceleration, by redemption or otherwise, and interest on
overdue principal, and premium, if any, and (to the extent permitted by law)
interest on any interest, if any, on the Advances, any promissory note issued
hereunder and all other obligations of the Company to the Lenders or the Agent
hereunder (including fees and expenses) will be promptly paid in full, all in
accordance with the terms hereof; and (ii) in case of any extension of time of
payment or renewal of any of the Advances or any of such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Lenders or the Agent,
for whatever reason, the Guarantor will be obligated to pay, or to perform or to
cause the performance of, the same immediately. An Event of Default under this
Agreement shall constitute an event of default under this Guarantee, and shall
entitle the Lenders to accelerate the obligations of the Guarantor under this
Guarantee in the same manner and to the same extent as the obligations of the
Company.
The Guarantor hereby agrees that its obligations under this
Guarantee shall be unconditional, irrespective of the validity, regularity or
enforceability of this Agreement, the absence of any action to enforce the same,
any waiver or consent by any Lender or the Agent of this Agreement with respect
to any thereof, the entry of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor. The Guarantor hereby
waives and relinquishes: (a) any right to require the Agent, the Lenders or the
Company (each, a "Benefitted Person") to proceed against the Company or any
other Person or to proceed against or exhaust any security held by a Benefitted
Person at any time or to pursue any other remedy in any secured party's power
before proceeding against the Guarantor; (b) any defense that may arise by
reason of the incapacity, lack of authority, death or disability of any other
Person or Persons or the failure of a Benefitted Person to file or enforce a
claim against the estate (in administration, bankruptcy or any other proceeding)
of any other Person or Persons; (c) demand, protest and notice of any kind
(except as expressly required by this Agreement), including but not limited to
notice of the existence, creation or incurring of any new or additional Debt or
obligation or of any action or non-action on the part of the Guarantor, the
Company, any Benefitted Person, any creditor of the Guarantor, the Company or on
the part of any other Person whomsoever in connection with any obligations the
performance of which are guaranteed under this Guarantee; (d) any defense based
upon an election of remedies by a Benefitted Person, including but not limited
to an election to proceed against the Guarantor for reimbursement; (e) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (f) any defense arising because of a
Benefitted Person's election, in any proceeding instituted under the Bankruptcy
Code, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g)
any defense based on any borrowing or grant of a security interest under Section
364 of the Bankruptcy Code. The Guarantor hereby covenants that this Guarantee
will not be discharged except by payment in full
5-Year Credit Agreement
-54-
of all principal, premium, if any, and interest on the Advances and all other
costs provided for under this Agreement. This is a Guarantee of payment and not
of collectibility.
If any Lender or the Agent is required by any court or otherwise to
return to either the Company or the Guarantor, or any trustee or similar
official acting in relation to either the Company or the Guarantor, any amount
paid by the Company or the Guarantor to the Agent or such Lender, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor agrees that it will not be entitled to any right
of subrogation in relation to the Lenders or the Agent in respect of any
obligations guaranteed under this Guarantee until payment in full of all
obligations guaranteed hereby. The Guarantor agrees that, as between it, on the
one hand, and the Lenders and the Agent, on the other hand, (x) the maturity of
the obligations guaranteed under this Guarantee may be accelerated as provided
in Article VI hereof for the purposes hereof, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by such Guarantor for
the purpose of this Guarantee.
SECTION 10.02. Limitation of Guarantor's Liability. The Guarantor, and by
its acceptance hereof, each Lender, hereby confirms that it is the intention of
the parties hereto that this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
State law. To effectuate the foregoing intention, the Lenders and the Guarantor
hereby irrevocably agree that the obligations of the Guarantor under this
Article X shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of the Guarantor, result in the
obligations of the Guarantor under the Guarantee not constituting a fraudulent
transfer or conveyance under federal or state law.
5-Year Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
THE PEPSI BOTTLING GROUP, INC.,
as Borrower
By: ____________________________________
Name:
Title:
BOTTLING GROUP, LLC,
as Guarantor
By: ____________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Agent
By: ____________________________________
Name:
Title:
5-Year Credit Agreement
COMMITMENT INITIAL LENDERS
---------- ---------------
$25,000,000 CITIBANK, N.A.
By:_____________________________________
Name:
Title:
$25,000,000 BANK OF AMERICA, N.A.
By:_____________________________________
Name:
Title:
$25,000,000 CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By:_____________________________________
Name:
Title:
$25,000,000 DEUTSCHE BANK AG NEW YORK BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Initial Lenders
-2-
$25,000,000 JPMORGAN CHASE BANK
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$20,000,000 THE NORTHERN TRUST COMPANY
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$20,000,000 ▇▇▇▇▇▇ BROTHERS BANK, FSB
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Initial Lenders
-3-
$17,500,000 BANCO BILBAO VIZCAYA ARGENTARIA
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$17,500,000 HSBC BANK USA
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$12,500,000 FLEET NATIONAL BANK
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Initial Lenders
-4-
$12,500,000 THE BANK OF NEW YORK
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$10,000,000 STATE STREET BANK AND TRUST COMPANY
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$7,500,000 COMERICA BANK
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Initial Lenders
-5-
$7,500,000 ▇▇▇▇▇ FARGO BANK, N.A.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
$250,000,000 TOTAL OF THE COMMITMENTS
Initial Lenders
SCHEDULE 1
LENDING OFFICES
Lender Domestic Lending Office Eurodollar Lending Office
CITIBANK, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ New York New York 10043
BANK OF AMERICA, N.A ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CREDIT SUISSE FIRST ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Credit Suisse First Boston
BOSTON, CAYMAN ISLANDS New York, New York, 10010 Cayman Islands Branch
BRANCH ▇/-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DEUTSCHE BANK AG NEW ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 90 ▇▇▇▇▇▇ Street
YORK BRANCH Mailstop JCY05-0511 Mailstop JCY05-0511
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
JPMORGAN CHASE BANK ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
THE NORTHERN TRUST ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ Salle Street
COMPANY ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS BANK, FSB ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BANCO BILBAO VIZCAYA ▇▇▇▇ ▇▇▇▇▇▇ of the Americas 1345 Avenue of the Americas
ARGENTARIA New York, New York 10105 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
HSBC BANK USA ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
FLEET NATIONAL BANK One Landmark Sq. One Landmark Sq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THE BANK ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ New York, New York 10286
STATE STREET BANK AND ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TRUST COMPANY ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COMERICA BANK ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 500 ▇▇▇▇▇▇▇▇ Avenue, 9th Floor
MC ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Detroit, Michigan 48275-3279
▇▇▇▇▇ FARGO BANK, N.A. ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Schedule 1
SCHEDULE 2
PRICING SCHEDULE
Applicable
Applicable Facility Utilization Fee
Rating Level Period Fee Rate Applicable Margin Rate(1)
------------------- -------- ----------------- -------
1 8.0 bps 27.0 bps 10.0 bps
2 9.0 bps 31.0 bps 10.0 bps
3 12.5 bps 37.5 bps 10.0 bps
4 17.5 bps 45.0 bps 10.0 bps
5 25.0 bps 75.0 bps 25.0 bps
(1) Applicable if utilization exceeds 33-1/3% of Commitment amount.
Schedule 2
EXHIBIT A-1
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
JPMorgan Chase Bank, as Agent
for the Lenders parties
to the 5-Year Credit Agreement
referred to below
Loan & Agency Services
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[Date]
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Company"),
refers to the 5-Year Credit Agreement, dated as of April 30, 2003 (as amended or
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, Bottling Group,
LLC (the "Guarantor"), certain Lenders parties thereto and JPMorgan Chase Bank,
as administrative agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Revolving Credit Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
__________, ____.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing is
$______.
(iv) The identity of the Borrower is __________, a ____________
corporation.
[(v)] [The initial Interest Period for each Eurodollar Rate Advance made
as part of the Proposed Revolving Credit Borrowing is ___ month[s].]
Form of Notice of Revolving Credit Borrowing
-2-
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are correct in all material respects, on and as of the date of the
Proposed Revolving Credit Borrowing, before and after giving effect to the
Proposed Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By:_____________________________________
Name:
Title:
Form of Notice of Revolving Credit Borrowing
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID BORROWING
JPMorgan Chase Bank, as Agent
for the Lenders parties
to the 5-Year Credit Agreement
referred to below
Loan & Agency Services
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[Date]
Ladies and Gentlemen:
The undersigned, The Pepsi Bottling Group, Inc. (the "Company"),
refers to the 5-Year Credit Agreement, dated as of April 30, 2003 (as amended or
modified from time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, Bottling Group,
LLC (the "Guarantor"), certain Lenders parties thereto and JPMorgan Chase Bank,
as administrative agent for said Lenders, and hereby gives you notice pursuant
to Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Proposed
Competitive Bid Borrowing ___________________
(B) Aggregate Amount of Proposed
Competitive Bid Borrowing ___________________
(C) Maturity Date ___________________
(D) Interest Rate Basis ___________________
(E) Interest Payment Date(s) ___________________
(F) Identity of Borrower ___________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
Form of Notice of Competitive Bid Borrowing
-2-
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are correct in all material respects, on and as of the date of
the Proposed Competitive Bid Borrowing, before and after giving effect to
the Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(b) of
the Credit Agreement.
Very truly yours,
THE PEPSI BOTTLING GROUP, INC.
By:_____________________________________
Name:
Title:
Form of Notice of Competitive Bid Borrowing
EXHIBIT A-3
FORM OF EXTENSION AGREEMENT
The Pepsi Bottling Group, Inc.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
JPMorgan Chase Bank, as Agent
under the 5-Year Credit Agreement referred to below
Loan & Agency Services
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[DATE]
Ladies and Gentlemen:
Each undersigned Lender hereby agrees to extend, effective on
[insert effective date, which shall be no more than 29 days prior to the
existing Termination Date] (the "Extension Date"), the Termination Date under
the 5-Year Credit Agreement dated as of April 30, 2003 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among The Pepsi Bottling Group, Inc., Bottling Group, LLC, the
Lenders and agents party thereto and JPMorgan Chase Bank, as administrative
agent for the Lenders, to __________ [one year from the effective date of this
Extension Agreement]. Terms defined in the Credit Agreement are used herein as
therein defined.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
[Remainder of this page intentionally left blank]
Form of Notice of Competitive Bid Borrowing
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 5-Year Credit Agreement dated as of April
30, 2003 (as amended or modified from time to time, the "Credit Agreement"),
among THE PEPSI BOTTLING GROUP, INC., a Delaware corporation (the "Company"),
Bottling Group, LLC (the "Guarantor"), the Lenders (as defined in the Credit
Agreement) and JPMorgan Chase Bank, as administrative agent for the Lenders (the
"Agent"). Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
(1) The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances) equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances). After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Revolving Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
(2) 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 other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of any of its obligations or the obligations of any Borrower under the
Credit Agreement or any other instrument or document furnished pursuant thereto.
(3) The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
Form of Assignment and Acceptance
-2-
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
(4) Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
(5) Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
(6) Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Effective Date
directly between themselves.
(7) This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of New York.
(8) This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Form of Assignment and Acceptance
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ___%
Assignee's Commitment: $__________
Aggregate outstanding principal
amount of Revolving Credit Advances assigned: $__________
Effective Date(2): _______________, ____
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: ,
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: ,
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
(2) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
Schedule 1 to Assignment and Acceptance
-2-
Accepted and Approved this
____ day of ________, ____
JPMORGAN CHASE BANK, as Agent
By: ___________________________________
Name:
Title:
Approved this ____ day
of ________, ____
THE PEPSI BOTTLING GROUP, INC.
By: ___________________________________
Name:
Title:
Schedule 1 to Assignment and Acceptance
EXHIBIT C
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY AND THE
GUARANTOR
[Effective Date]
To each of the Lenders parties
to the 5-Year Credit Agreement dated
as of April 30, 2003
among The Pepsi Bottling Group, Inc.,
said Lenders and JPMorgan Chase Bank,
as Agent for said Lenders, and
to JPMorgan Chase Bank, as Agent
The Pepsi Bottling Group, Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(v) of
the 5-Year Credit Agreement, dated as of April 30, 2003 (the "Credit
Agreement"), among The Pepsi Bottling Group, Inc. (the "Company"), Bottling
Group, LLC, (the "Guarantor"), the Lenders parties thereto and JPMorgan Chase
Bank, as Agent for said Lenders, providing for extensions of credit to be made
by said Lenders to the Company in an aggregate principal amount at any one time
outstanding of up to $250,000,000. Terms defined in the Credit Agreement are
used herein as therein defined.
I am the General Counsel of the Company and have acted as counsel to
the Company and the Guarantor in connection with the Credit Agreement. In
connection with this opinion, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company and the Guarantor
pursuant to subsections 3.01(g)(i)-(iv) of the Credit Agreement.
(3) The Articles of Incorporation of the Company and all amendments
thereto (the "Charter").
(4) The by-laws of the Company and all amendments thereto (the
"By-laws").
Form of Opinion of Counsel for the Company and the Guarantor
-2-
(5) A certificate of the Secretary of State of Delaware, dated
_______________, 2003, attesting to the continued corporate existence and good
standing of the Company in that State.
(6) The Amended and Restated Limited Liability Company Agreement of
the Guarantor, dated as of March 30, 1999, and all amendments thereto (the "LLC
Agreement").
(7) The Certificate of Formation of the Guarantor and all amendments
thereto (the "Certificate of Formation").
(8) A certificate of the Secretary of State of Delaware dated
_________, 2003, attesting to the continued existence and good standing of the
Guarantor in that State.
(9) Resolutions of the Board of Directors of the Company adopted on
April 26, 1999 and September 5, 2002.
(10) Resolutions of the Managing Directors of the Guarantor adopted
on June 4, 1999.
In addition, I have examined the originals, or copies certified or
otherwise identified to my satisfaction, of such other corporate records of the
Company and the Guarantor, certificates of public officials and of officers of
the Company and the Guarantor, and agreements, instruments and other documents,
as I have deemed necessary as a basis for the opinions expressed below. I have
assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Initial Lenders and the Agent.
The opinions expressed below are limited to the law of the State of
New York, the Delaware corporate law, the Federal law of the United States and,
with respect to paragraphs 1 and 2 and clauses (i), (ii) and (iii)(a) of
paragraph 3 only, the Delaware General Corporation Law and the Delaware Limited
Liability Company Act.
Based upon the foregoing and upon such investigation as I have
deemed necessary and subject to the qualifications set forth herein, I am of the
following opinion:
(1) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(2) The Guarantor is a limited liability company validly existing
and in good standing under the laws of the state of Delaware.
(3) The execution, delivery and performance by the Company and the
Guarantor of the Credit Agreement (i) are within the Company's corporate, and
the Guarantor's limited liability company, powers, (ii) have been duly
authorized by all necessary corporate, or limited liability company, action, and
(iii) do not contravene (a) the Charter or the Bylaws of the Company or the LLC
Agreement or Certificate of Formation of the Guarantor or (b) to the best
Form of Opinion of Counsel for the Company and the Guarantor
-3-
of my knowledge (1) any United States Federal or New York State law, rule or
regulation applicable to the Company or the Guarantor (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (2) any contractual or legal restriction contained in any material
judgment, decree, mortgage, agreement, indenture or other instrument to which
the Company or the Guarantor is a party. The Credit Agreement has been duly
executed and delivered on behalf of the Company and the Guarantor.
(4) No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body of the State of
New York or the Federal government of the United States is required for the due
execution, delivery and performance by the Company or the Guarantor of the
Credit Agreement.
(5) The Credit Agreement is a valid and binding obligation of the
Company and the Guarantor enforceable against the Company and the Guarantor in
accordance with its terms.
(6) To the best of my knowledge and except as disclosed in the
Company's consolidated financial statements, there are no pending or overtly
threatened actions or proceedings against the Company or any of its
Subsidiaries, before any court, governmental agency or arbitrator that purport
to affect the legality, validity, binding effect or enforceability of the Credit
Agreement or that are likely to have a materially adverse effect upon the
financial condition or operations of the Company or any of its Subsidiaries.
The opinions set forth above are subject to the following qualifications:
(1) My opinion in paragraph 5 above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally.
(2) My opinion in paragraph 5 above is subject to the effect of
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(3) I express no opinion as to the effect (if any) of the law of any
jurisdiction (other than the State of New York) wherein any Lender may be
located or wherein enforcement of the Credit Agreement may be sought that limits
the rates of interest that such Lender may charge or collect.
(4) I express no opinion as to the effect of Section 548 of the
United States Bankruptcy Code or any similar provision of State law.
In all respects and for all purposes, this opinion is given solely
for the benefit of the Agent and the Lenders and may not be relied upon by any
other person or entity without my prior written consent.
Very truly yours,
Form of Opinion of Counsel for the Company and the Guarantor
EXHIBIT D
FORM OF DESIGNATION LETTER
____________, ____
To JPMorgan Chase Bank
as Agent
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended,
supplemented and otherwise modified and in effect from time to time, the "Credit
Agreement") dated as of April 30, 2003 among The Pepsi Bottling Group, Inc. (the
"Company"), Bottling Group, LLC (the "Guarantor"), JPMorgan Chase Bank, as
administrative agent (the "Agent"), and the banks party thereto (the "Initial
Lenders"). Terms defined in the Credit Agreement are used herein as defined
therein.
The Company hereby designates [______________] (the "Borrowing
Subsidiary"), a Subsidiary of the Company and a corporation duly incorporated
under the laws of [_______________] as a Borrower in accordance with Section
2.17 of the Credit Agreement until such designation is terminated in accordance
with said Section 2.17.
The Borrowing Subsidiary hereby accepts the above designation and
hereby expressly and unconditionally accepts the obligations of a Borrower under
the Credit Agreement, adheres to the Credit Agreement and agrees and confirms
that, upon your execution and return to the Company of the enclosed copy of this
letter, such Borrowing Subsidiary shall be a Borrower for purposes of the Credit
Agreement and agrees to be bound by and perform and comply with the terms and
provisions of the Credit Agreement applicable to it as if it had originally
executed the Credit Agreement as a Borrower. The Borrowing Subsidiary hereby
authorizes and empowers the Company to act as its representative and
attorney-in-fact for the purposes of signing documents and giving and receiving
notices (including notices of Borrowing under the Credit Agreement) and other
communications in connection with the Credit Agreement and the transactions
contemplated thereby and for the purposes of modifying or amending any provision
of the Credit Agreement and further agrees that the Agent and each Lender may
conclusively rely on the foregoing authorization.
The Borrowing Subsidiary represents and warrants that each of the
representations and warranties set forth in Section 4.01(a) (as if the reference
therein to Delaware were a reference to its jurisdiction of organization), (b),
(c) and (d) of the Credit Agreement are true as if each reference therein to the
Company were a reference to the Borrowing Subsidiary
Form of Designation Letter
-2-
and as if each reference therein to the Loan Documents were a reference to this
Designation Letter.
The Borrowing Subsidiary hereby agrees that this Designation Letter
and the Credit Agreement shall be governed by, and construed in accordance with,
the law of the State of New York. The Borrowing Subsidiary hereby submits to the
nonexclusive jurisdiction of any New York state court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Designation Letter, the Credit Agreement or for recognition or enforcement of
any judgment. The Borrowing Subsidiary irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. The Borrowing Subsidiary further agrees that service of process in any
such action or proceeding brought in New York may be made upon it by service
upon the Borrower at the "Address for Notices" specified below its name on the
signature pages to the Credit Agreement.
Without limiting the foregoing, the Borrowing Subsidiary joins in
the submission, agreements, waivers and consents in Section 8.11 and 8.12 of the
Credit Agreement.
THE PEPSI BOTTLING GROUP, INC.
By: ____________________________________
Name:
Title:
[NAME OF BORROWING SUBSIDIARY]
By: ____________________________________
Name:
Title:
Form of Designation Letter
-3-
ACCEPTED:
JPMORGAN CHASE BANK,
as Agent
By: ___________________________________
Name:
Title:
Form of Designation Letter
EXHIBIT E
FORM OF SUBSTITUTION LETTER
____________, ____
To JPMorgan Chase Bank
as Agent
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended,
supplemented and otherwise modified and in effect from time to time, the "Credit
Agreement") dated as of April 30, 2003 among The Pepsi Bottling Group, Inc. (the
"Company"), Bottling Group, LLC (the "Guarantor"), JPMorgan Chase Bank, as
administrative agent (the "Agent"), and the banks party thereto (the "Initial
Lenders"). Terms defined in the Credit Agreement are used herein as defined
therein.
The Company hereby elects to terminate its rights as a Borrower
under the Credit Agreement and designates the Guarantor as the exclusive
Borrower thereunder, in accordance with Section 2.17 of the Credit Agreement.
The Guarantor hereby accepts the above substitution and hereby
expressly and unconditionally accepts the obligations of the Company under the
Credit Agreement, adheres to the Credit Agreement and agrees and confirms that,
as of the date hereof, the Guarantor shall become a Borrower for purposes of the
Credit Agreement and agrees to be bound by and perform and comply with the terms
and provisions of the Credit Agreement applicable to it as if it had originally
executed the Credit Agreement as the Company.
The Company and the Guarantor hereby represent and warrant to the
Agent and each Lender that, before and after giving effect to this Substitution
Letter, (i) the representations and warranties set forth in Section 4.01 of the
Credit Agreement (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause (ii)
thereof)) are true and correct in all material respects on the date hereof and
after giving effect to the substitution contemplated hereby as if made on and as
of the date hereof and (ii) no Default has occurred and is continuing.
The Company and the Guarantor hereby agree that this Substitution
Letter shall be governed by, and construed in accordance with, the law of the
State of New York. The Company and the Guarantor hereby submit to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New
Form of Substitution Letter
-2-
York City for the purposes of all legal proceedings arising out of or relating
to this Substitution Letter or the transactions contemplated hereby.
THE PEPSI BOTTLING GROUP, INC.
By:
Name:
Title:
BOTTLING GROUP, LLC
By:
Name:
Title:
Form of Substitution Letter
EXHIBIT F
FORM OF TERMINATION LETTER
____________, ____
To JPMorgan Chase Bank,
as Agent
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
We make reference to the 5-Year Credit Agreement (as amended,
supplemented and otherwise modified and in effect from time to time, the "Credit
Agreement") dated as of April 30, 2003 by and among The Pepsi Bottling Group,
Inc. (the "Company"), Bottling Group, LLC (the "Guarantor"), JPMorgan Chase
Bank, as administrative agent, and the banks party thereto. Terms defined in the
Credit Agreement are used herein as defined therein.
The Company hereby terminates the status as a Borrowing Subsidiary
of [_______________], a corporation incorporated under the laws of
[_______________], in accordance with Section 2.17 of the Credit Agreement,
effective as of the date of receipt of this notice by the Agent. The undersigned
hereby represents and warrants that all principal of and interest on any Advance
of the above-referenced Borrowing Subsidiary and all other amounts payable by
such Borrowing Subsidiary pursuant to the Credit Agreement have been paid in
full on or prior to the date hereof. Notwithstanding the foregoing, this
Termination Letter shall not affect any obligation which by the terms of the
Credit Agreement survives termination thereof
THE PEPSI BOTTLING GROUP, INC.
By: ____________________________________
Name:
Title:
Form of Termination Letter