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EXHIBIT 4.07
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364-DAY CREDIT AGREEMENT
dated as of
January 19, 2001
among
▇▇▇▇▇▇▇ COMPANY
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE MANHATTAN INTERNATIONAL LIMITED,
as London Agent
CITIBANK, N.A.,
BANK OF AMERICA, N.A.,
as Co-Syndication Agents
BARCLAYS BANK PLC,
as Documentation Agent
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▇▇ ▇▇▇▇▇▇,
as Advisor, Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions
SECTION 1.01. Defined Terms.............................................................................1
SECTION 1.02. Classification of Loans and Borrowings...................................................19
SECTION 1.03. Terms Generally..........................................................................19
SECTION 1.04. Accounting Terms; GAAP...................................................................20
SECTION 1.05. Exchange Rates...........................................................................20
SECTION 1.06. Determinations Made in Good Faith........................................................20
ARTICLE II The Credits
SECTION 2.01. Commitments..............................................................................21
SECTION 2.02. Loans and Borrowings.....................................................................21
SECTION 2.03. Requests for Revolving Borrowings........................................................22
SECTION 2.04. Competitive Bid Procedure................................................................23
SECTION 2.05. Extension of Maturity Date; Extension of Termination Date................................25
SECTION 2.06. Redenomination of Certain Designated Foreign Currencies..................................25
SECTION 2.07. Funding of Borrowings....................................................................26
SECTION 2.08. Interest Elections.......................................................................26
SECTION 2.09. Termination and Reduction of Commitments.................................................28
SECTION 2.10. Repayment of Loans; Evidence of Debt.....................................................28
SECTION 2.11. Prepayment of Loans......................................................................29
SECTION 2.12. Fees.....................................................................................29
SECTION 2.13. Interest.................................................................................30
SECTION 2.14. Alternate Rate of Interest...............................................................31
SECTION 2.15. Increased Costs..........................................................................32
SECTION 2.16. Break Funding Payments...................................................................33
SECTION 2.17. Taxes....................................................................................34
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..............................35
SECTION 2.19. Mitigation Obligations; Replacement of Lenders...........................................36
SECTION 2.20. Borrowing Subsidiaries...................................................................37
SECTION 2.21. Additional Reserve Costs.................................................................37
ARTICLE III Representations and Warranties
SECTION 3.01. Organization and Qualification...........................................................38
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SECTION 3.02. Subsidiaries.............................................................................38
SECTION 3.03. Corporate Authority and Validity of Obligations..........................................39
SECTION 3.04. Margin Stock.............................................................................39
SECTION 3.05. Financial Reports........................................................................39
SECTION 3.06. No Material Adverse Change...............................................................40
SECTION 3.07. Litigation...............................................................................40
SECTION 3.08. Tax Returns..............................................................................40
SECTION 3.09. Approvals................................................................................40
SECTION 3.10. ERISA....................................................................................41
SECTION 3.11. Environmental Matters....................................................................41
SECTION 3.12. Properties...............................................................................41
SECTION 3.13. Compliance with Laws.....................................................................41
SECTION 3.14. Investment and Holding Company Status....................................................41
SECTION 3.15. Disclosure...............................................................................41
ARTICLE IV Conditions
SECTION 4.01. Effective Date...........................................................................42
SECTION 4.02. Each Borrowing...........................................................................44
SECTION 4.03. Initial Borrowing by each Borrowing Subsidiary...........................................45
ARTICLE V Affirmative Covenants
SECTION 5.01. Corporate Existence......................................................................45
SECTION 5.02. Maintenance..............................................................................45
SECTION 5.03. Taxes....................................................................................45
SECTION 5.04. Insurance................................................................................46
SECTION 5.05. Financial Reports and Other Information..................................................46
SECTION 5.06. Books and Records; Inspection Rights.....................................................47
SECTION 5.07. Compliance with Laws.....................................................................47
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness.............................................................................47
SECTION 6.02. Liens....................................................................................48
SECTION 6.03. Sale and Leaseback Transactions..........................................................49
SECTION 6.04. Fundamental Changes......................................................................49
SECTION 6.05. Use of Proceeds..........................................................................49
SECTION 6.06. Minimum Net Worth........................................................................50
SECTION 6.07. Interest Expense Coverage Ratio..........................................................50
ARTICLE VII...........................................Events of Default 50
ARTICLE VIII.................................................The Agents 53
ARTICLE IX....................................................Guarantee 55
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ARTICLE X Miscellaneous
SECTION 10.01. Notices.................................................................................56
SECTION 10.02. Waivers; Amendments.....................................................................57
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................................................58
SECTION 10.04. Successors and Assigns..................................................................59
SECTION 10.05. Survival................................................................................61
SECTION 10.06. Counterparts; Integration; Effectiveness................................................62
SECTION 10.07. Severability............................................................................62
SECTION 10.08. Right of Setoff.........................................................................62
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..............................62
SECTION 10.10. WAIVER OF JURY TRIAL....................................................................63
SECTION 10.11. Headings................................................................................63
SECTION 10.12. Confidentiality.........................................................................63
SECTION 10.13. Interest Rate Limitation................................................................64
SECTION 10.14. Conversion of Currencies................................................................64
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SCHEDULES
Schedule 2.01 -- Commitments
Schedule 3.02 -- Significant Subsidiaries
Schedule 3.07 -- Litigation
Schedule 3.10 -- ERISA
Schedule 3.11 -- Environmental Matters
Schedule 4.01(h) -- Indebtedness to be Refinanced on the Acquisition Date
Schedule 6.01 -- Outstanding Indebtedness After Giving Effect to the Acquisition
Schedule 6.02 -- Existing Liens
Schedule 6.03 -- Sale-Leaseback Transactions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Borrowing Subsidiary Agreement
Exhibit B-2 -- Form of Borrowing Subsidiary Termination
Exhibit C -- Reserve Costs
Exhibit D-1 -- Form of Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and Deputy General Counsel
Exhibit D-2 -- Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Counsel for the Borrowers
Exhibit E -- Form of Compliance Certificate
Exhibit F -- Form of Note
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364-DAY CREDIT AGREEMENT dated as of January
19, 2001, among ▇▇▇▇▇▇▇ COMPANY, a Delaware
corporation, the BORROWING SUBSIDIARIES party hereto,
the LENDERS party hereto, THE CHASE MANHATTAN BANK,
as Administrative Agent, CHASE MANHATTAN
INTERNATIONAL LIMITED, as London Agent, CITIBANK,
N.A. and BANK OF AMERICA, N.A., as Co-Syndication
Agents, and BARCLAYS BANK PLC, as Documentation
Agent.
The Company intends to acquire (the "Acquisition") Keebler (such term
and each other capitalized term used but not defined herein having the meaning
given it in Article I) for cash in the amount of approximately US$4,600,000,000.
In connection with the Acquisition, the Company will (a) refinance certain
Indebtedness of the Company and Keebler, (b) obtain the credit facilities
provided under this Agreement and under the Five-Year Credit Agreement, and (c)
issue Senior Notes in a public offering or in a Rule 144A or other private
placement or, to the extent it shall not have issued Senior Notes by the date of
the Acquisition, establish the Bridge Facility, in an aggregate principal amount
taken together not in excess of US$4,000,000,000.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" has the meaning assigned to such term in the
preamble to this Agreement.
"Acquisition Agreements" means collectively, (a) the Agreement
and Plan of Restructuring and Merger, dated October 26, 2000, among Flowers
Industries, Inc., ▇▇▇▇▇▇▇ Company and Kansas Merger Subsidiary, Inc., and (b)
the Agreement and Plan of Merger dated as of October 26, 2000, among Keebler
Foods Company, ▇▇▇▇▇▇▇ Company and FK Acquisition Corp.
"Acquisition Date" means the date on which the conditions
specified in paragraphs (g), (h) and (i) of Section 4.01 are satisfied (or
waived in accordance with Section 10.02).
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16
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of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder, or any successor
thereto appointed in accordance with Article VIII.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent and the
London Agent.
"Agreement Currency" has the meaning assigned to such term in
Section 10.14(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate, or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan or
Borrowing denominated in US Dollars, or with respect to any payment that does
not relate to any Loan or Borrowing, the Administrative Agent, and (b) with
respect to a Loan or Borrowing denominated in any Designated Foreign Currency,
the London Agent.
"Applicable Creditor" has the meaning assigned to such term in
Section 10.14(b).
"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 Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the facility fees and
utilization fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "Eurocurrency Spread", "Facility Fee
Rate" or "Utilization Fee Rate", as the case may be, based upon the ratings by
▇▇▇▇▇'▇ and S&P, respectively, applicable on such date to the Index Debt:
INDEX DEBT RATINGS EUROCURRENCY SPREAD FACILITY FEE RATE UTILIZATION FEE RATE
------------------ ------------------- ----------------- --------------------
Category 1 0.295 0.080 0.125
A-/A3 or higher
Category 2 0.400 0.100 0.125
BBB+/Baa1
Category 3 0.500 0.125 0.125
BBB/Baa2
Category 4 0.700 0.175 0.125
BBB-/Baa3
Category 5 1.000 0.250 0.250
lower than BBB-/Baa3 or
unrated
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For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 5;
(ii) if the ratings established or deemed to have been established by ▇▇▇▇▇'▇
and S&P for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two ratings unless (A) one
of the two ratings is more than two Categories lower than the other and neither
rating is in Category 5, in which case the Applicable Rate shall be determined
by reference to the Category next above that of the lower of the two ratings or
(B) either rating is or is deemed to be in Category 5, in which case the
Applicable Rate shall be determined by reference to Category 5 and (iii) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Company and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent
and the Company.
"Attributable Debt" means, with respect to any Sale-Leaseback
Transaction, the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such Sale-Leaseback Transaction, compounded
semiannually) of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
which do not constitute
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payments for property rights or amounts related to contingent rents (such as
those based on sales)) during the remaining term of the lease included in such
Sale-Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) or the Attributable Debt determined assuming no such termination.
Any determination of any rate implicit in the terms of the lease included in
such Sale-Leaseback Transaction made in accordance with generally accepted
financial practices by the Company shall absent manifest error be binding and
conclusive.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Termination Date and the date
of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, or (b) a Competitive Loan or
group of Competitive Loans of the same Type and currency made on the same date
and as to which a single Interest Period is in effect.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in US Dollars, US$25,000,000 and (b) in the case of a Borrowing
denominated in any Designated Foreign Currency, the smallest amount of such
Designated Foreign Currency that has a US Dollar Equivalent in excess of
US$5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000 and (b) in the case of a Borrowing
denominated in any Designated Foreign Currency, 1,000,000 units of such
currency.
"Borrowing Request" means a request by a Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each of the
Subsidiaries that (a) is named on the signature pages to this Agreement or (b)
has been designated as a Borrowing Subsidiary by the Company pursuant to Section
2.20, other than any such Subsidiary that has ceased to be a Borrowing
Subsidiary as provided in Section 2.20.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit B-1.
"Borrowing Subsidiary Termination" means a Borrowing
Subsidiary Termination substantially in the form of Exhibit B-2.
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"Bridge Facility" means the US$4,000,000,000 senior unsecured
bridge credit facility made available to the Company under the Bridge Agreement
dated as of January 19, 2001, among the Company, the lenders named therein and
Chase, as administrative agent, with no changes therefrom adverse to the
Lenders, as amended from time to time.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market and (b) when used in connection with a Loan denominated
in Euro, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro.
"Calculation Date" means (a) the last Business Day of each
calendar quarter and (b) solely with respect to any Designated Foreign Currency
for a requested new Borrowing for which an Exchange Rate was not established on
the immediately preceding Calculation Date, the Business Day immediately
preceding the date on which such Borrowing is to be made, provided that the
Administrative Agent may in addition designate the last day of any other month
as a Calculation Date if it reasonably determines that there has been
significant volatility in the foreign currency markets.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 40% or more in voting power of
the outstanding Voting Stock of the Company or (b) members of the Board of
Directors of the Company on the date hereof plus any additional members of such
Board whose nomination for election to such Board is recommended or approved by
a majority of the then current members of such Board shall at any time fail to
constitute a majority of such Board.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank and its successors.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Competitive Loans.
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"CMIL" means Chase Manhattan International Limited and its
successors.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is US$1,150,000,000.
"Company" means ▇▇▇▇▇▇▇ Company, a Delaware corporation.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount of the outstanding
Competitive Loans of such Lender denominated in US Dollars and (b) the sum of
the US Dollar Equivalents of the aggregate principal amounts of the outstanding
Competitive Loans of such Lender denominated in Designated Foreign Currencies.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus, without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense (including,
without duplication, foreign withholding taxes and any state single business
unitary or other similar taxes) for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) any non-cash charges for
such period, (v) fees and expenses incurred in connection with the Transactions,
(vi) fees and expenses in an aggregate amount for any fiscal year not in excess
of $20,000,000 incurred in connection with the issuance of any Indebtedness or
equity, acquisitions, investments or asset sales or divestitures permitted
hereunder and (vii) any (A) cash charges in an aggregate amount for any fiscal
year not in excess of $50,000,000 or (B) any noncash charges, in each case
arising out of the restructuring, consolidation, severance or discontinuance of
any portion of the operations, employees and/or management of any entities or
businesses of the Company or any of the Subsidiaries, determined without giving
effect to any extraordinary gains or losses for such period to the extent
included in
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determining Consolidated Net Income, all determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum
of (a) the cash interest expense (including imputed interest expense in respect
of Capital Lease Obligations) of the Company and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, and (b) any
interest accrued during such period in respect of Indebtedness of the Company or
any Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP; provided
that there shall be excluded from Consolidated Interest Expense (i) any fees
paid to the Administrative Agent and (ii) any payments made to obtain any
interest rate hedging agreements; and provided further, solely for purposes of
determining compliance with Section 6.07, in the event the Company or any
Subsidiary acquired any Person or line of business during the relevant period,
Consolidated Interest Expense will be determined giving pro forma effect to any
incurrence of Indebtedness related to such acquisition as if such incurrence of
Indebtedness had occurred on the first day of the relevant period.
"Consolidated Net Income" means, for any period, the net
income or loss of the Company and the Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP; provided that (a) there shall be
excluded the income of any Person (other than the Company) in which any other
Person (other than the Company or any Subsidiary or any director holding
qualifying shares or other third parties holding nominal amounts of shares, as
required by or in compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Company or any of the Subsidiaries during such period, and (b)
solely for purposes of determining compliance with Section 6.07, in the event
the Company or any Subsidiary acquired any Person or line of business during the
relevant period, Consolidated Net Income will be determined giving pro forma
effect to such acquisition as if such acquisition and any related incurrence of
Indebtedness had occurred on the first day of the relevant period, but shall not
take into account any cost savings projected to be realized as a result of such
acquisition other than cost savings permitted to be included under Regulation
S-X of the Securities and Exchange Commission.
"Consolidated Net Sales" means, for any period, the net sales
of the Company and the Subsidiaries for such period, as reported as a line item
in the Company's income statements as filed with the Company's Form 10-Q Report
or Form 10-K Report, as applicable.
"Consolidated Net Worth" means the excess of Consolidated
Total Assets over the consolidated total liabilities of the Company and its
consolidated Subsidiaries.
"Consolidated Total Assets" means the total assets of the
Company and its Subsidiaries determined in accordance with GAAP; provided that
for purposes of determining compliance with Sections 6.01, 6.02 and 6.03, in the
event the Company or any Subsidiary acquires any Person or line of business
after the fiscal quarter end referred to in such Section, "Consolidated Total
Assets" as of such fiscal quarter end shall be deemed to include the assets of
such Person or line of business from and after the date of such acquisition.
"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
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exercise voting power, by contract or otherwise. "Controlling" and "Controlled"
have meanings correlative thereto.
"Controlled Group" means all of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control that, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Foreign Currency" means (a) Euro, Sterling and Yen
and (b) any other currency specified by the Company in a notice to the
Administrative Agent for a proposed Competitive Borrowing which, at the time
such Borrowing is made, is freely transferable and convertible into US Dollars
in the London market and for which, at such time, LIBO Rates can be determined
by reference to the Telerate screen as provided in the definition of "LIBO
Rate".
"Effective Date" means the date on which the conditions
specified in paragraphs (a) through (f) of Section 4.01 are satisfied (or waived
in accordance with Section 10.02).
"Environmental Laws" means all federal, state, local and
foreign statutes, laws (including common law), regulations, ordinances,
judgments, permits and other governmental rules or restrictions relating to
human health, safety (including occupational safety and health standards), and
protection of the environment or to emissions, discharges or releases of
pollutants, contaminants, hazardous substances or wastes into the environment,
including ambient air, surface or ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the cleanup or other remediation thereof.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Laws, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" has the meaning assigned to such term in Section 3.10.
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"Euro" or "E." means the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO Rate
(or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Rate" means on any day, with respect to any
Designated Foreign Currency, the rate at which such Designated Foreign Currency
may be exchanged into US Dollars, as set forth at approximately 11:00 a.m.,
London time, on such day on the Reuters World Currency Page for such Designated
Foreign Currency. In the event that such rate does not appear on any Reuters
World Currency Page, the Exchange Rate shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Company, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such Designated Foreign
Currency are then being conducted, at or about 10:00 a.m., Local Time, on such
date for the purchase of US Dollars for delivery two Business Days later;
provided that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any reasonable
method it deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
"Excluded Taxes" means, with respect to any Agent, any Lender
or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.19(b)), any withholding tax imposed by the United States of America
that (i) is in effect and would apply to amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or designates
a new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from any Borrower with
respect to any withholding tax pursuant to Section 2.17, or (ii) is attributable
to such Foreign Lender's failure to comply with Section 2.17(e).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received
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by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Financed Portion" means, at any time, with respect to a
Securitization, the greatest amount of the claims of the parties providing
financing (whether through direct purchases of receivables or interests therein
or through other financing arrangements), however evidenced, including direct
claims on collections of a party providing financing and including debt or
equity interests or securities (other than any seller's interests retained by
any wholly owned Subsidiary) of a purchasing vehicle, permitted to be
outstanding at such time under such Securitization (assuming the satisfaction of
all conditions to issuance) or, if greater, the maximum purchase limit, however
denominated, under such Securitization.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
the Company.
"Five-Year Credit Agreement" means the Company's Five-Year
Credit Agreement dated as of the date hereof.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means, as to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America or, when reference is made to another jurisdiction,
generally accepted accounting principles in effect from time to time in such
jurisdiction.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or
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liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include (i) endorsements
for collection or deposit, (ii) standard contractual indemnities not related to
the borrowing of money or Indebtedness, in each case in the ordinary course of
business, or (iii) recourse at customary levels in connection with
Securitizations accounted for as sales. The amount of any Guarantee of any
guaranteeing Person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee is made and (b) the maximum amount for which such guaranteeing
Person may be liable pursuant to the terms of the instrument embodying such
Guarantee, unless such primary obligation and the maximum amount for which such
guaranteeing Person may be liable are not stated or determinable, in which case
the amount of such Guarantee shall be such guaranteeing Person's maximum
reasonably anticipated liability (assuming such Person is required to perform)
in respect thereof as determined by such Person in good faith.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Laws.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, currency swap agreement,
commodity price protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement. The "principal amount" of any Hedging
Agreement of the Company or any Subsidiary at any time shall be deemed to be the
aggregate amount at such time of the payments that would be required to be made
by the Company or such Subsidiary in the event of any early termination at such
time of such Hedging Agreement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Indebtedness shall not include trade payables and accrued expenses arising in
the ordinary course of business.
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"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated November 2000 relating to the Company and the Transactions.
"Interest Election Request" means a request by a Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, (b) with respect
to any Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the applicable Borrower may elect, or any other period
agreed to by the applicable Borrower and each Lender, and (b) with respect to
any Fixed Rate Borrowing, the period (which shall not be less than 7 days or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Judgment Currency" has the meaning assigned to such term in
Section 10.14(b).
"Keebler" means Keebler Foods Company, a Delaware corporation.
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"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by the Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London
interbank market by Chase at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, each Borrowing
Subsidiary Agreement, each Borrowing Subsidiary Termination and each promissory
note delivered pursuant to this Agreement, as such documents may be amended,
modified, supplemented or restated from time to time.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing
denominated in US Dollars, New York City time, and (b) with respect to a Loan or
Borrowing denominated in any Designated Foreign Currency, London time.
"London Agent" means CMIL, in its capacity as London agent for
the Lenders hereunder.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means (a) any condition or change
that has affected or would reasonably be expected to affect materially and
adversely the business, assets, liabilities or
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financial condition of the Company and the Subsidiaries taken as a whole or (b)
a material adverse effect on the rights of or benefits available to the Lenders
under any Loan Document.
"Maturity Date" means the Termination Date, unless the
Maturity Date is extended pursuant to Section 2.05(a) to the first anniversary
of the Termination Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Obligations" means (a)(i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Company or any other
Borrower under this Agreement or any other Loan Document and (b) all obligations
of the Borrowers under each Hedging Agreement entered into with a counterparty
that was a Lender or an Affiliate of a Lender at the time such Hedging Agreement
was entered into.
"Offering Memorandum" means the offering memorandum relating
to the Senior Notes.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" has the meaning assigned to such term in Section 3.10.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments or other
governmental charges that are not yet due or are being contested in
compliance with Section 5.03;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days, are in de minimis amounts or are being
contested in good faith and by appropriate proceedings with adequate
reserves under GAAP being provided therefor;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance, health insurance and other social security laws or
regulations and withholding taxes;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
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(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, minor
defects or irregularities in title and similar encumbrances on real
property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not interfere with
the ordinary conduct of business of the Company or any Subsidiary;
(g) rights of set-off in favor of financial institutions
(other than in respect of amounts deposited to secure Indebtedness);
(h) liens in the nature of trustee's liens granted pursuant to
any indenture securing obligations to pay compensation to such trustee,
to reimburse its expenses and to indemnify it under the terms thereof;
(i) licenses, leases or subleases (other than Capital Leases
and other financing leases) granted to third parties (other than to
secure Indebtedness) not interfering in any material respect with the
business of the Company or any Subsidiary;
(j) liens arising in connection with contracts with or made at
the request of the United States of America, any State of the United
States of America or any department, agency or instrumentality of the
foregoing; and
(k) liens arising from deposits with or the giving of any form
of security to any Governmental Authority required as a condition to
the transaction of business or exercise of any privilege, franchise or
license;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means, for the Company and each Subsidiary at any time,
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (a) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group, (b) is maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions, or (c) under which a member of the Controlled
Group has any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years or by reason of being deemed a contributing
sponsor under Section 4069 of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in
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the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
"Quotation Day" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such Interest
Period. If such quotations would normally be given by prime banks on more than
one day, the Quotation Day will be the last of such days.
"Register" has the meaning set forth in Section 10.04.
"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.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, "Required
Lenders" will mean, at any time, Lenders having Revolving Credit Exposures and
outstanding Competitive Loans representing more than 50% of the sum of the total
Revolving Credit Exposures and outstanding Competitive Loans at such time.
"Reset Date" has the meaning assigned to such term in Section
1.05.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Sale-Leaseback Transaction" means any arrangement whereby the
Company or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred; provided that any
such arrangement (a) involving no party other than the Company and any Wholly
Owned Subsidiary or (b) entered into within 180 days after the acquisition,
construction or substantial improvement of the subject property shall not be
deemed to be a "Sale-Leaseback Transaction".
"SEC" means the Securities and Exchange Commission or any
successor.
"Securitization" means the transfer or pledge of accounts
receivable or interests in accounts receivable (a) to a trust, partnership,
corporation or other entity, which transfer or pledge is funded by such entity
in whole or in part by the issuance to one or more lenders or investors of
indebtedness or securities that are paid principally from the cash flow derived
from such accounts receivable or interests in accounts receivable, or (b)
directly to an investor or other purchaser.
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"Senior Notes" means the Company's unsecured Senior Notes to
be issued by the Company pursuant to the Senior Note Documents.
"Senior Note Documents" means the indenture providing for the
issuance of the Senior Notes substantially in the form approved prior to the
date hereof by the Lenders, which form shall provide that the Senior Notes are
unsecured and are not Guaranteed by any Subsidiary and shall otherwise have
customary market terms reasonably acceptable to the Lenders, with no changes
therefrom adverse to the Lenders, and all other instruments, agreements and
other documents evidencing or governing the Senior Notes or providing for any
other right in respect thereof.
"S&P" means Standard & Poor's.
"Significant Subsidiary" means (a) each Borrowing Subsidiary,
(b) any Subsidiary that directly or indirectly owns or Controls any other
Significant Subsidiary, (c) each Subsidiary identified as a Significant
Subsidiary on Schedule 3.02, (d) any Subsidiary designated from time to time by
the Company as a Significant Subsidiary by written notice to the Administrative
Agent and (e) any other Subsidiary (i) the consolidated net sales of which were
greater than 5% of the Company's Consolidated Net Sales as of the last day of
the most recent fiscal period for which financial statements have been delivered
pursuant to Section 5.05(a) or (b) (or, prior to the first delivery of such
financial statements, greater than 5% of the consolidated net sales of the
Person in whose financial statements such Subsidiary is included in the most
recent financial statements referred to in Section 3.05(a) or (b)) or (ii) the
consolidated assets of which as of the last day of such fiscal period were
greater than 5% of Consolidated Total Assets as of such date (or, prior to the
first delivery of such financial statements, greater than 5% of the consolidated
total assets of the Person in whose financial statements such Subsidiary is
included in the most recent financial statements referred to in Section 3.05(a)
or (b)). The Company will not permit the total consolidated assets or the
consolidated net sales of the Significant Subsidiaries (together with the
directly owned assets of the Company) to at any time represent less than 90% of
Consolidated Total Assets or Consolidated Net Sales of the Company and its
Subsidiaries, respectively, in each case as of and for the period of four fiscal
quarters ended on the last day of the most recent fiscal period for which
financial statements have been delivered pursuant to Section 5.05(a) or (b) (or,
prior to the first delivery of such financial statements, the consolidated total
assets or consolidated net sales as of such date or for such period of the
Persons in whose financial statements the Significant Subsidiaries are included
in the most recent financial statements referred to in Section 3.05(a) or (b)).
For purposes of making the determinations required by this definition, net sales
and assets of foreign Subsidiaries shall be converted into US Dollars at the
rates used in preparing the consolidated balance sheet of the Company (or, prior
to the first delivery of financial statements pursuant to Section 5.05(a) or
(b), the Person in whose financial statements such foreign Subsidiary is
included in the most recent financial statements referred to in Section 3.05(a)
or (b)) included in the applicable financial statements.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in
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Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Sterling" or "L." means the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any direct or indirect subsidiary of the
Company. At all times on and after the Acquisition Date, Keebler and the
subsidiaries of Keebler acquired in the Acquisition will constitute
Subsidiaries.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means, at any time, the later of January
17, 2002 and the most recent date, if any, to which the Termination Date has
been extended pursuant to Section 2.05(b).
"Transactions" means the execution, delivery and performance
by the Borrowers of this Agreement and the other Loan Documents, the borrowing
of Loans and the use of the proceeds thereof, the establishment of the Company's
commercial paper program, the Acquisition and the refinancing of Indebtedness
and the other transactions contemplated to be effected on the Acquisition Date
in connection therewith.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO
Rate or a Fixed Rate.
"Unfunded Vested Liabilities" means, for any Plan at any time,
the amount (if any) by which (a) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (b) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the Controlled Group to the PBGC or the
Plan under Title IV of ERISA.
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"US Dollars" or "US$" refers to lawful money of the United
States of America.
"US Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount, and (b) with respect
to any amount in any Designated Foreign Currency, the equivalent in US Dollars
of such amount, determined by the Administrative Agent pursuant to Section 1.05
using the Exchange Rate with respect to such Designated Foreign Currency at the
time in effect under the provisions of such Section.
"Voting Stock" of any Person means capital stock of any class
of classes or other Equity Interests (however designated) having ordinary voting
power for the election of directors or the equivalent governing body of such
Person, other than stock or other Equity Interests having such power only by
reason of happening of a contingency.
"Welfare Plan" means a "welfare plan" as defined in Section
3(l) of ERISA.
"Wholly Owned Subsidiary" means any Subsidiary all the Equity
Interests in which, other than directors' qualifying shares and/or other nominal
amounts of Equity Interests that are required to be held by Persons (other than
the Company or its Wholly Owned Subsidiaries, as applicable) under applicable
law, are owned, directly or indirectly, by the Company.
"Yen" or "Y." means the lawful money of Japan.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. References herein to the taking of any action hereunder of an
administrative nature by any Borrower shall be deemed to include references to
the Company taking such action on such Borrower's behalf and the Agents are
expressly authorized to accept any such action taken by the
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Company as having the same effect as if taken by such Borrower. Each reference
herein to the "knowledge" of the Company or any Subsidiary shall be deemed to be
a reference to the knowledge of any member of senior management of the Company
or such Subsidiary, any Financial Officer and, in the case of any reference to
knowledge of any specific subject matter, the senior manager of the department
or office of the Company responsible for such matter.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Designated Foreign Currency that is represented by an outstanding Borrowing as
of such Calculation Date and (ii) give notice thereof to the Lenders and the
Company. The Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a "Reset
Date"), shall remain effective until the next succeeding Reset Date, and shall
for all purposes of this Agreement (other than Section 10.14 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between US Dollars and
Designated Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each date on which Revolving Loans denominated in any Designated
Foreign Currency are made, the Administrative Agent shall (i) determine the
aggregate amount of the US Dollar Equivalent of the principal amounts of the
Loans denominated in Designated Foreign Currencies then outstanding (after
giving effect to any Loans denominated in Designated Foreign Currencies made or
repaid on such date) and (ii) notify the Lenders and the Company of the results
of such determination.
SECTION 1.06. Determinations Made in Good Faith. All
determinations hereunder made by any party hereto shall be made in good faith.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrowers
from time to time during the Availability Period in US Dollars in an aggregate
principal amount that will not result in (a) such Lender's Revolving Credit
Exposure exceeding such Lender's Commitment or (b) the sum of the total
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans during the Availability Period. Revolving Loans repaid or
prepaid after the Termination Date may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the applicable
Borrower may request in accordance herewith, and (ii) each Competitive Borrowing
shall be comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the
applicable Borrower may request in accordance herewith. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of any Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be an integral multiple
of the Borrowing Multiple and not less than the Borrowing Minimum. At the time
that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of US$1,000,000 and not less than
US$5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments. Each
Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 10
Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Revolving Borrowing if the Interest Period requested with respect thereto would
end after the Maturity Date, or to request any Competitive Borrowing if the
Interest Period requested with respect thereto would end after the Termination
Date.
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SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the applicable Borrower shall notify the Administrative
Agent of such request by telephone or by telecopy (a) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the Business
Day of the proposed Borrowing. Each such Borrowing Request shall be irrevocable
and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form agreed to by
the Administrative Agent and the Company and signed by the applicable Borrower,
or by the Company on behalf of the applicable Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
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SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans denominated
in US Dollars or any Designated Foreign Currency; provided that after giving
effect to any Borrowing of Competitive Loans the sum of the total Revolving
Credit Exposures plus the total Competitive Loans shall not exceed the total
Commitments. To request Competitive Bids, the Company or the applicable
Borrowing Subsidiary shall notify the Applicable Agent of such request by
telephone or by telecopy, in the case of a Eurocurrency Borrowing, not later
than 11:00 a.m., Local Time, four Business Days before the date of the proposed
Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m.,
Local Time, one Business Day before the date of the proposed Borrowing; provided
that the Borrowers may submit up to (but not more than) five Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Competitive Bid
Request in a form approved by the Applicable Agent and signed by the applicable
Borrower, or by the Company on behalf of the applicable Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) the aggregate principal amount and currency of the
requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period" and shall end no later than the Termination Date; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Applicable Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the applicable Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Applicable Agent and must be received by the Applicable Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., Local Time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., Local
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Time, on the proposed date of such Competitive Borrowing. Competitive Bids that
do not conform substantially to the form approved by the Applicable Agent may be
rejected by the Applicable Agent, and the Applicable Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be an amount at least equal to the
Borrowing Minimum and an integral multiple of the Borrowing Multiple and which
may equal the entire principal amount of the Competitive Borrowing requested by
the applicable Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Applicable Agent shall promptly notify the applicable
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, a
Borrower may accept or reject any Competitive Bid. The applicable Borrower shall
notify the Applicable Agent by telecopy or by telephone, confirmed by telecopy
in a form approved by the Applicable Agent, whether and to what extent it has
decided to accept or reject each Competitive Bid, in the case of a Eurocurrency
Competitive Borrowing, not later than 11:00 a.m., Local Time, three Business
Days before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 11:00 a.m., Local Time, on the proposed
date of the Competitive Borrowing; provided that (i) the failure of a Borrower
to give such notice shall be deemed to be a rejection of each Competitive Bid,
(ii) a Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by a Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, a Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of at least the Borrowing Minimum that is an integral multiple of the
Borrowing Multiple; provided further that if a Competitive Loan must be in an
amount less than the Borrowing Minimum because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of US$1,000,000 (or, in the
case of a Competitive Loan denominated in a Designated Foreign Currency, the
smallest amount of such currency that (i) is an integral multiple of 1,000,000
units of such currency and (ii) has a US Dollar Equivalent in excess of
US$1,000,000) or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of the Borrowing Multiple in a manner determined
by the applicable Borrower. A notice given by a Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Applicable Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms
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and conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Applicable Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the applicable Borrower at least one quarter of an hour earlier
than the time by which the other Lenders are required to submit their
Competitive Bids to the Applicable Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Extension of Maturity Date; Extension of
Termination Date. (a) The Company may by written notice delivered to the
Administrative Agent not less than 10 and not more than 20 days prior to the
Termination Date extend the Maturity Date from the Termination Date to the first
anniversary of the Termination Date.
(b) The Company may by written notice delivered to the
Administrative Agent not less than 45 days and not more than 60 days prior to
the Termination Date at any time in effect, request that the Lenders extend the
Termination Date for an additional period of not more than 364 days as specified
in such notice. Each Lender shall, by notice to the Company and the
Administrative Agent given not earlier than the 30th day and not later than the
20th day prior to the Termination Date then in effect, advise the Company
whether or not it agrees to such extension on the terms set forth in such
notice. Any Lender that has not so advised the Company and the Administrative
Agent by such day shall be deemed to have declined to agree to such extension.
If the Company shall have requested and Lenders representing at least 50% of the
aggregate Commitments shall have agreed to an extension of the Termination Date,
then the Termination Date shall be extended for the additional period and on the
terms specified in the Company's notice. The decision to agree or withhold
agreement to any extension of the Termination Date hereunder shall be at the
sole discretion of each Lender. The Commitment of any Lender that has declined
to agree to any requested extension of the Termination Date (a "Non-Extending
Lender") shall terminate on the Termination Date in effect prior to giving
effect to any such extension (the "Existing Termination Date"), and the
principal amount of any outstanding Loans made by such Lender, together with any
accrued interest thereon, and any accrued fees and other amounts payable to or
for the account of such Lender hereunder, shall be due and payable on the
Existing Termination Date. Notwithstanding the foregoing provisions of this
paragraph, (i) the Company shall have the right, pursuant to Section 2.19(b), to
replace a Non-Extending Lender with a Lender or other financial institution that
will agree to an extension of the Termination Date and (ii) the Company shall
have the right, any time prior to the Existing Termination Date, to withdraw its
request for an extension of the Termination Date by written notice to the
Administrative Agent, in which case the Commitments of all the Lenders will
terminate on the Existing Termination Date.
SECTION 2.06. Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is
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outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this Agreement
and (ii) without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall, immediately upon such
adoption, be replaced by references to such minimum amounts (or integral
multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent (in consultation
with the Company) may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
SECTION 2.07. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m., Local Time, to the account
of the Applicable Agent most recently designated by it for such purpose by
notice to the Lenders. The Applicable Agent will make such Loans available to
the applicable Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained with the Applicable Agent (i)
in New York City, in the case of Loans denominated in US Dollars and (ii) in
London, in the case of Loans denominated in any Designated Foreign Currency, and
designated by such Borrower in the applicable Borrowing Request or Competitive
Bid Request.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Applicable Agent such Lender's share of such
Borrowing, the Applicable Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Applicable
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
applicable Borrower to but excluding the date of payment to the Applicable
Agent, at (i) in the case of such Lender, the greater of (x)(A) the Federal
Funds Effective Rate, in the case of Loans denominated in US Dollars and (B) the
rate reasonably determined by the London Agent to be the cost to it of funding
such amount, in the case of Loans denominated in a Designated Foreign Currency,
and (y) a rate determined by the Applicable Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of a Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to the
Applicable Agent, then such amount shall constitute such Lender's Loan included
in such Borrowing.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type or
to
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continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
applicable Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Competitive Borrowings, which may not
be converted or continued.
(b) To make an election pursuant to this Section, a Borrower
(or the Company on its behalf) shall notify the Administrative Agent of such
election by telephone or by telecopy by the time that a Borrowing Request would
be required under Section 2.03 if such Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such Interest Election Request shall be irrevocable
and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the applicable Borrower (or
the Company on its behalf).
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the
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request of the Required Lenders, so notifies the Company, then, so long as an
Event of Default is continuing (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid,
each Eurocurrency Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Termination
Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of US$1,000,000
and not less than US$5,000,000 and (ii) the Company shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.11, the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures would exceed the total
Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the unpaid principal amount of each Revolving
Loan on the Maturity Date, and (ii) to the Applicable Agent for the account of
each Lender the unpaid principal amount of each Competitive Loan on the last day
of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Agents hereunder for the account of the Lenders and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of 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 Agent to maintain such accounts or
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any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, each Borrower shall 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
substantially the form attached hereto as Exhibit F. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) 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).
SECTION 2.11. Prepayment of Loans. (a) The Borrowers shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (c) of
this Section and payment of any amounts required under Section 2.16; provided
that the Borrowers shall not have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(b) In the event and on each occasion that the sum of the
total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeds the total Commitments, the Borrowers shall promptly prepay Revolving
Borrowings in an aggregate amount sufficient to eliminate such excess.
(c) The Company shall notify the Applicable Agent by telephone
(confirmed by telecopy) or by telecopy of any prepayment hereunder (i) in the
case of prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment, or
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later than
11:00 a.m., New York City time, on the Business Day of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
SECTION 2.12. Fees (a) (i) The Borrowers agree to pay to the
Administrative Agent, in US Dollars, for the account of each Lender a facility
fee, which shall accrue at the relevant Facility Fee Rate specified in the
definition of Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) and, following the Termination Date, on the
Revolving Credit Exposure of such Lender, during the period from and including
the date of this Agreement to but excluding the Maturity Date; provided that, if
such Lender continues to have any Revolving Credit Exposure after the Maturity
Date, then such facility fee shall continue to accrue on the daily amount of
such Lender's Revolving Credit Exposure from and including the
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Maturity Date to but excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued facility fees shall be payable in arrears on
the last day of March, June, September and December of each year, on any date
prior to the Termination Date on which the Commitments terminate and on the
Maturity Date, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the Maturity Date shall be
payable on demand. All facility fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(ii) For each day on which the US Dollar Equivalent of the
aggregate principal amount of the Loans outstanding under this Agreement is in
excess of 50% of the total Commitments as of such day (and for each day after
the day on which the Commitments terminate) the Borrowers agree to pay to the
Administrative Agent, in US Dollars, for the account of each Lender a
utilization fee, which shall accrue at the relevant Utilization Fee Rate
specified in the definition of Applicable Rate on the daily amount of the
outstanding Loans of such Lender on such day. Accrued utilization fees shall be
payable in arrears on the last day of March, June, September and December of
each year, on any date prior to the Termination Date on which the Commitments
terminate and on the Maturity Date, commencing on the first such date to occur
after the date hereof; provided that any utilization fees accruing after the
Maturity Date shall be payable on demand. All utilization fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrowers agree to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between any Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for its own account
or, in the case of facility fees and utilization fees, for distribution to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Eurocurrency Revolving Loan, at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurocurrency Competitive Loan, at the
LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus,
as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any
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Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in Sterling
and (ii) interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or, except in the case of Borrowings denominated in
Sterling, 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate,
as applicable, for such Interest Period; or
(b) the Applicable Agent is advised by the Required Lenders
(or, in the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Applicable Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Applicable Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, and such Borrowing shall be converted to or continued as an ABR
Borrowing on the last day of the Interest Period applicable thereto, (ii) if any
Borrowing Request requests a Eurocurrency Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing (or such Borrowing shall not be made if the
applicable Borrower revokes (and in such circumstances, such Borrowing Request
may be revoked notwithstanding any other provision of this Agreement) such
Borrowing Request by telephonic notice, confirmed promptly in writing, not later
than one Business Day prior to the proposed date of such Borrowing) and (iii)
any request by a Borrower for a Eurocurrency
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Competitive Borrowing denominated in such currency shall be ineffective;
provided that (A) if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by a Borrower for Eurocurrency Competitive
Borrowings may be made to Lenders that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except to the extent
any such reserve requirement is reflected in the Adjusted LIBO Rate);
or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender such additional amount or amounts as will
compensate such Lender on an after-tax basis for such additional costs incurred
or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered. It is acknowledged
that this Agreement is being entered into by the Lenders on the understanding
that the Lenders will not be required to maintain capital against their
Commitments under currently applicable laws, regulations and regulatory
guidelines. In the event Lenders shall be advised by any Governmental Authority
or shall otherwise determine on the basis of pronouncements of any Governmental
Authority that such understanding is incorrect, it is agreed that a Change in
Law will be deemed to have occurred and that the Lenders will be entitled to
make claims under this paragraph based upon market requirements prevailing on
the date hereof for commitments under comparable credit facilities against which
capital is required to be maintained.
(c) If the cost to any Lender of making or maintaining any
Loan to any Borrowing Subsidiary is increased (or the amount of any sum received
or receivable by any Lender (or its applicable lending office) is reduced) by an
amount deemed in good faith by such Lender to be material, by reason of the fact
that such Borrowing Subsidiary is incorporated in, or conducts business in, a
jurisdiction outside the United States, such Borrowing Subsidiary shall
indemnify such Lender for such increased cost or reduction within 15 days after
demand by such Lender
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(with a copy to the Administrative Agent). A certificate of such Lender claiming
compensation under this paragraph and setting forth the additional amount or
amounts to be paid to it hereunder (and the basis for the calculation of such
amount or amounts) shall be conclusive in the absence of manifest error.
(d) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section, together with
supporting documentation or computations, shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay such Lender the
amount shown as due on any such certificate within 10 Business Days after
receipt thereof.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Company shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(c) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurocurrency Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Company pursuant to Section 2.19, then, in any such
event, the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the applicable currency of a
comparable amount and period from other banks in the eurocurrency market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section, together
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with supporting documentation or computations, shall be delivered to the Company
and shall be conclusive absent manifest error. The Borrowers shall pay such
Lender the amount shown as due on any such certificate within 10 Business Days
after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrowers hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions of
Indemnified Taxes or Other Taxes (including deductions applicable to additional
sums payable under this Section) the Agent or Lender (as the case may be)
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 Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify each Agent and each Lender,
within 10 Business Days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by such Agent or such Lender on or
with respect to any payment by or on account of any obligation of the Borrowers
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth in reasonable detail the amount and
nature of such payment or liability delivered to the Company by a Lender, or by
an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Borrower to a Governmental Authority, the Company
shall deliver to the Applicable Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Applicable Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Applicable Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Company advising it of the availability of
such exemption or reduction and containing all applicable documentation.
(f) If an Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with
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respect to which a Borrower has paid additional amounts pursuant to this Section
2.17, it shall pay over such refund to the Company (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrowers under this
Section 2.17 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrowers, upon the
request of such Agent or such Lender, agree to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to such Agent or such Lender in the event such
Agent or such Lender is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require any Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to any Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise)
prior to 2:00 p.m., Local Time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Applicable Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Applicable Agent at its
offices at (i) in the case of any amount denominated in US Dollars, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or (ii) in the case of any amount denominated in a
Designated Foreign Currency, Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, in each case except that payments pursuant to Sections 2.15,
2.16, 2.17 and 10.03 shall be made directly to the Persons entitled thereto. The
Applicable Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder of principal or interest in respect of any Loan (or of any breakage
indemnity in respect of any Loan) shall be made in the currency of such Loan;
all other payments hereunder and under each other Loan Document shall be made in
US Dollars, except as otherwise expressly provided. Any payment required to be
made by an Agent hereunder shall be deemed to have been made by the time
required if such Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by such Agent to make such
payment. Any amount payable by any Agent to one or more Lenders in the national
currency of a member state of the European Union that has adopted the Euro as
its lawful currency shall be paid in Euro.
(b) If at any time insufficient funds are received by and
available to the Applicable Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
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(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to a Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice
from the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
applicable Borrower will not make such payment, the Applicable Agent may assume
that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders, the amount
due. In such event, if such Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Applicable Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Applicable Agent, at (i) the greater of the
Federal Funds Effective Rate and a rate determined by the Applicable Agent in
accordance with banking industry rules on interbank compensation (in the case of
an amount denominated in US Dollars) and (ii) the rate reasonably determined by
the Applicable Agent to be the cost to it of funding such amount (in the case of
an amount denominated in a Designated Foreign Currency).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.07(b) or 2.18(d), then the Applicable Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Applicable Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if any
Borrower is required to pay any additional interest to any Lender pursuant to
Section 2.21, then 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 reasonable judgment
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of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15, 2.17 or 2.21 as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Borrower is required to pay any additional interest to any Lender
pursuant to Section 2.21, or if any Lender defaults in its obligation to fund
Loans hereunder, or if any Lender becomes a "Non-Extending Lender" under Section
2.05(b), then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations under
this Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans), accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17 or additional interest required pursuant to Section
2.21, such assignment will result in a material reduction in such compensation,
payments or additional interest.
SECTION 2.20. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any wholly owned Subsidiary of the
Company as a Borrowing Subsidiary by delivery to the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company, and
upon such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement. Upon the execution by the
Company and delivery to the Administrative Agent of a Borrowing Subsidiary
Termination with respect to any Borrowing Subsidiary, such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement; provided that
no Borrowing Subsidiary Termination will become effective as to any Borrowing
Subsidiary (other than to terminate such Borrowing Subsidiary's right to make
further Borrowings under this Agreement) at a time when any principal of or
interest on any Loan to such Borrowing Subsidiary shall be outstanding
hereunder. Promptly following receipt of any Borrowing Subsidiary Agreement or
Borrowing Subsidiary Termination, the Administrative Agent shall send a copy
thereof to each Lender.
SECTION 2.21. Additional Reserve Costs. (a) If and so long as
any Lender is required to make special deposits with the Bank of England, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender's Eurocurrency Loans in any Designated Foreign Currency, such Lender may
require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Loans, additional interest on such Loan at a rate per
annum equal to the Mandatory Costs Rate calculated in accordance with the
formula and in the manner set forth in Exhibit C hereto.
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(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or
other authority (including any such requirement imposed by the European Central
Bank or the European System of Central Banks, but excluding requirements
reflected in the Statutory Reserve Rate or the Mandatory Costs Rate) in respect
of any of such Lender's Eurocurrency Loans in any Designated Foreign Currency,
such Lender may require the relevant Borrower to pay, contemporaneously with
each payment of interest on each of such Lender's Eurocurrency Loans subject to
such requirements, additional interest on such Loan at a rate per annum
specified by such Lender to be the cost to such Lender of complying with such
requirements in relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender, which determination shall
be conclusive absent manifest error, and notified to the relevant Borrower (with
a copy to the Administrative Agent) at least five Business Days before each date
on which interest is payable for the relevant Loan, and such additional interest
so notified to the relevant Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
ARTICLE III
Representations and Warranties
Each of the Company and the Borrowing Subsidiaries represents
and warrants to the Lenders that:
SECTION 3.01. Organization and Qualification. Each Borrower is
duly organized, validly existing and in good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization) under
the laws of the jurisdiction of its organization, has full and adequate
corporate power to carry on its business as now conducted, and is duly licensed
or qualified and, to the extent relevant, in good standing in each jurisdiction
in which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing or qualification necessary,
except where such failure to be so licensed or qualified and in good standing
would not have a Material Adverse Effect.
SECTION 3.02. Subsidiaries. Each Significant Subsidiary is
duly organized, validly existing and in good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization) under
the laws of the jurisdiction of its organization, has the requisite power to
carry on its business as now conducted, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes such
licensing or qualification necessary, except where such failure would not have a
Material Adverse Effect. All the issued and outstanding Equity Interests in each
Significant Subsidiary are validly issued and outstanding and fully paid and
nonassessable and all such shares owned by the Company or a Subsidiary are
owned, beneficially and of record, by the Company or such Subsidiary, free of
any Lien other than Permitted Encumbrances. The Significant Subsidiaries after
giving effect to the transactions to occur on the Acquisition Date are listed on
Schedule 3.02.
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SECTION 3.03. Corporate Authority and Validity of Obligations.
Each Borrower has the requisite right and authority to consummate the
Transactions, to enter into this Agreement and each other Loan Document to which
it is a party, to make the Borrowings herein provided for, to issue its notes in
evidence thereof and to perform all of its obligations hereunder and under each
other Loan Document to which it is a party; each of the Transactions has been
duly authorized by the Borrowers and the execution, delivery and performance of
this Agreement and the other Loan Documents have been duly authorized by all
necessary corporate, company or partnership action by each Borrower party
thereto and constitute valid and binding obligations of the Borrowers
enforceable in accordance with their terms; and none of the Transactions, this
Agreement, the other Loan Documents and the performance or observance by any
Borrower or any Subsidiary of any of the matters or things herein or therein
provided for contravene any provision of law or judgment or any charter or
by-law provision of any Borrower or any material covenant, indenture or
agreement of or affecting any Borrower or a substantial portion of any of their
respective Properties.
SECTION 3.04. Margin Stock. None of the Borrowers nor any of
the Subsidiaries is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and none of the Borrowers nor any of the Subsidiaries will use the
proceeds of any Loan in a manner that violates any provision of Regulation U or
X of the Board of Governors of the Federal Reserve System.
SECTION 3.05. Financial Reports. (a) The consolidated balance
sheet of the Company and the Subsidiaries and the related consolidated
statements of earnings, shareholders' equity and cash flows of the Company and
the Subsidiaries and accompanying notes thereto (i) as at December 31, 1999, and
for the year then ended, which financial statements are accompanied by the
report of PriceWaterhouseCoopers LLP, and (ii) as at September 30, 2000, and for
the fiscal quarter and the portion of the fiscal year then ended, certified by
the Company's chief financial officer, heretofore furnished to the
Administrative Agent, fairly present in all material respects the consolidated
financial condition of the Company and the Subsidiaries as at such dates and
their consolidated results of operations, shareholders' equity and cash flows
for the periods then ended in conformity with GAAP, subject to year-end
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) The consolidated balance sheet of Keebler and its
subsidiaries and the related consolidated statements of earnings, shareholders'
equity and cash flows of Keebler and its subsidiaries and accompanying notes
thereto (i) as at January 1, 2000, and for the year then ended, which financial
statements are accompanied by the report of PriceWaterhouseCoopers LLP, and (ii)
as at September 30, 2000, and for the fiscal quarter and the portion of the
fiscal year then ended, certified by Keebler's chief financial officer,
heretofore furnished to the Administrative Agent, to the best of the Company's
knowledge, fairly present in all material respects the consolidated financial
condition of Keebler and its subsidiaries as at such dates and their
consolidated results of operations, shareholders' equity and cash flows for the
periods then ended in conformity with GAAP, subject to year-end adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(c) The Company has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of September 30, 2000, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has
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been prepared in good faith based on the same assumptions used to prepare the
pro forma financial statements included in the Information Memorandum (which
assumptions are believed by the Company to be reasonable), (ii) is based on the
best information available to the Company after due inquiry, (iii) accurately
reflects all adjustments necessary to give effect to the Transactions and (iv)
presents fairly, in all material respects, the pro forma financial position of
the Company and its consolidated Subsidiaries as of September 30, 2000, as if
the Transactions had occurred on such date. The representations and warranties
set forth in clauses (iii) and (iv) are limited to the best of the Company's
knowledge to the extent they relate to Keebler and its subsidiaries.
SECTION 3.06. No Material Adverse Change. Since September 30,
2000, there has not occurred or become known any condition or change that has
affected or would reasonably be expected to affect materially and adversely the
business, assets, liabilities or financial condition of the Company, and its
Subsidiaries taken as a whole.
SECTION 3.07. Litigation. There is no litigation or
governmental proceeding pending, or to the knowledge of the Company threatened,
against the Company, any Subsidiary or Keebler or any of its subsidiaries which
if adversely determined would (a) impair the validity or enforceability of, or
materially impair the ability of the Company or any other Borrower to perform
its obligations under, this Agreement or any other Loan Document or (b) except
as disclosed on Schedule 3.07 or in the Company's Form 10-Ks and 10-Qs filed
with the SEC covering periods through September 30, 2000, or in Keebler's Form
10-Ks and 10-Qs filed with the SEC covering periods through October 7, 2000,
result in any Material Adverse Effect.
SECTION 3.08. Tax Returns. The Company has filed consolidated
United States federal income tax returns for all taxable years ended on or
before December 31, 1999 and such returns of the Company for the taxable year
ended December 31, 1996 and all taxable years ended before such date have been
examined and approved by the Internal Revenue Service as filed, and any
additional assessments for any such year have been paid or the applicable
statute of limitations therefor has expired. To the best of the Company's
knowledge, Keebler has filed consolidated United States federal income tax
returns for all taxable years ended on or before January 1, 2000 and such
returns of Keebler for the taxable year ended December 31, 1994 and all taxable
years ended before such date have been examined and approved by the Internal
Revenue Service as filed, and any additional assessments for any such year have
been paid or the applicable statute of limitations therefor has expired. There
are no assessments pending for the consolidated United States federal income tax
returns of the Company and the Subsidiaries of a material nature for any taxable
year ended after December 31, 1999, or, to the best of the Company's knowledge,
of Keebler and its subsidiaries of a material nature for any year ended after
January 1, 2000, nor to the knowledge of the Company is any such assessment
threatened, other than those provided for by adequate reserves under GAAP.
SECTION 3.09. Approvals. No authorization, consent, license,
exemption, filing or registration with any court or governmental department,
agency or instrumentality, or any other Person, is necessary to the consummation
of the Transactions or the valid execution, delivery or performance by any
Borrower of this Agreement or any other Loan Document except for those obtained
on or before the Effective Date or those the failure of which to obtain would
not individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
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SECTION 3.10. ERISA. The Company and each Subsidiary are in
compliance in all material respects with the Employee Retirement Income Security
Act of 1974 ("ERISA") to the extent applicable to them and have received no
notice to the contrary from the Pension Benefit Guaranty Corporation or any
successor thereto ("PBGC") or any other governmental entity or agency. No
condition exists or event or transaction has occurred under or relating to any
Plan which could reasonably be expected to result in the incurrence by the
Company or any Subsidiary of any material liability, fine or penalty. Except as
disclosed on Schedule 3.10, neither the Company nor any Subsidiary has any
contingent liability for any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title 1 of
ERISA.
SECTION 3.11. Environmental Matters. Except as set forth on
Schedule 3.11, or except with respect to any other matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, none of the Company and its Subsidiaries (a) has failed to
comply with any Environmental Laws or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Laws, (b) has
become subject to any liability under any Environmental Laws, (c) has received
notice of any claim with respect to any Environmental Laws or (d) knows of any
basis for any liability under any Environmental Laws.
SECTION 3.12. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, subject only to Liens permitted
by Section 6.02 and except for defects in title that could not individually or
in the aggregate reasonably be expected to result in a Material Adverse Effect.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by them does
not infringe upon the rights of any other Person, except for any such defects in
ownership or license rights or other infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.13. Compliance with Laws. Each of the Company and
its Subsidiaries is in compliance with all laws, regulations and orders of the
Food and Drug Administration and each other Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.14. Investment and Holding Company Status. None of
the Company and its Subsidiaries is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.15. Disclosure. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of the Company to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents
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only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time (it being understood that such projections
are subject to significant uncertainties and contingencies, many of which are
beyond the Company's control, and that no assurance can be given that such
projections will be realized); and provided further that the representations and
warranties set forth in this sentence are limited to the best of the Company's
knowledge to the extent they relate to information or materials obtained by the
Company from Keebler and its subsidiaries prior to the Acquisition Date.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of each of (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice
President and Deputy General Counsel of the Company, substantially in
the form of Exhibit D-1, and (ii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Borrowers, substantially in the form of Exhibit D-2. Each Borrower
hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing (to the extent such concept is relevant to such Person in its
jurisdiction of organization) of each Borrower and the authorization of
the Transactions, all in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses required to be reimbursed or paid on
or prior to the Effective Date by the Borrowers hereunder.
(f) The Five-Year Credit Agreement shall have been executed
and delivered.
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The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
April 30, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
The effectiveness of the obligations to make Loans (other than
Loans made solely for the purpose of repaying commercial paper issued on or
after the Effective Date but prior to the date of such termination, to the
extent the proceeds of such commercial paper shall have been deposited in the
cash collateral account referred to in the last paragraph of this Section 4.01)
hereunder shall terminate, and any outstanding Obligations (other than
Obligations under Hedging Agreements) shall become immediately due and payable
(or, in the case of Obligations incurred after such time shall become due and
payable immediately following their incurrence), at 3:00 p.m. on April 30, 2001,
unless each of the following conditions is satisfied (or waived in accordance
with Section 10.02):
(g) The Acquisition shall have been completed on terms
substantially similar to those set forth in the Acquisition Agreements
as heretofore provided to the Lenders, without modification or waiver
of any material term or condition thereof that would reasonably be
expected to materially and adversely affect the Company and its
Subsidiaries, taken as a whole, or the rights or interests of the
Lenders, and the assets and liabilities of Keebler and its subsidiaries
shall to the best knowledge of the Company be consistent with the pro
forma consolidated balance sheet referred to in Section 3.05(c).
(h) The Company shall have established a commercial paper
program on terms and subject to conditions satisfactory to the Lenders
which permits the issuance of commercial paper supported by this
Agreement, the Five-Year Credit Agreement and, if effective, the Bridge
Facility, in an aggregate principal amount sufficient to consummate the
Acquisition, refinance and replace the Indebtedness and credit
facilities set forth on Schedule 4.01(h) as being repaid or permanently
terminated in connection with the Acquisition, pay related fees and
expenses and provide for the working capital needs and other general
corporate purposes of the Company and its Subsidiaries. After giving
effect to the Acquisition and the other transactions contemplated
hereby, the Indebtedness and credit facilities set forth on Schedule
4.01(h) as being repaid or terminated shall have been repaid in full
and permanently terminated, as applicable, and the Company and its
Subsidiaries shall have outstanding no Indebtedness other than (a)
commitments and Indebtedness under this Agreement and the Five-Year
Credit Agreement, Indebtedness under the Company's commercial paper
program, Senior Notes and commitments or loans under the Bridge
Facility, in an aggregate principal amount taken together, without
duplication, not to exceed US$6,300,000,000, and (b) the other
Indebtedness set forth on Schedule 6.01 as remaining outstanding after
giving effect to the Acquisition.
(i) All governmental authorities and material third parties
shall have approved or consented to the Acquisition to the extent such
approvals or consents are required under applicable laws or agreements
or otherwise and the failure to obtain such approvals or consents would
reasonably be expected to result in a Material Adverse Effect; all
applicable appeal periods of Governmental Authorities shall have
expired and there shall
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be no governmental or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Acquisition. There shall be no litigation
or administrative action that could reasonably be expected to have a
Material Adverse Effect. The Administrative Agent shall have received a
favorable written opinion (which is addressed to the Administrative
Agent and the Lenders or permits reliance on it by the Administrative
Agent and the Lenders and is dated as of the Acquisition Date) from
counsel and in a form reasonably satisfactory to the Administrative
Agent to the effect that no authorization, approval or action by, and
no notice to, consent of, order of or filing with, any governmental
authority, and no shareholder approval, is required in connection with
the Acquisition, other than such as have been obtained or made or those
the failure to obtain or make which are not material to the
consummation of the Transactions or to the Company.
The Administrative Agent shall notify the Company and the Lenders of the
Acquisition Date, and such notice shall be conclusive and binding. All proceeds
of any commercial paper issued by the Company on or after the Effective Date but
prior to the Acquisition Date (other than proceeds of commercial paper issued
under the Company's existing commercial paper programs) shall be held in a cash
collateral account of the Company maintained with the Administrative Agent and
shall (A) be made available to the Company to finance the consummation of the
Acquisition and the related Transactions on the date on which all the conditions
set forth in paragraphs (g) through (i) are satisfied, or (B) if all such
conditions are not satisfied on or prior to April 30, 2001 or any earlier date
on which the Commitments shall have terminated, be applied to repay such
commercial paper as it matures and all Obligations that may from time to time be
outstanding on or after April 30, 2001 or any earlier date on which the
Commitments shall have terminated.
SECTION 4.02. Each Borrowing. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, is subject to the satisfaction (or
waiver in accordance with Section 10.02) of the following conditions:
(a) The representations and warranties (other than those set
forth in Sections 3.06 and 3.07 in the case of Borrowings made after
the Effective Date) of the Borrowers set forth in the Loan Documents
shall be true and correct in all material respects on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section. On and after the Acquisition Date, the conditions
specified in paragraphs (a) and (b) of this Section shall be construed giving
effect to the Acquisition and the other transactions contemplated to be effected
in connection therewith.
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SECTION 4.03. Initial Borrowing by each Borrowing Subsidiary.
The obligation of each Lender to make Loans to any Borrowing Subsidiary (other
than the Borrowing Subsidiaries party hereto on the date hereof) is subject to
the satisfaction (or waiver in accordance with Section 10.02) of the following
conditions:
(a) The Administrative Agent (or its counsel) shall have
received such Borrowing Subsidiary's Borrowing Subsidiary Agreement,
duly executed by all parties thereto.
(b) The Administrative Agent shall have received such
documents and certificates, including such opinions of counsel, as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization)
of such Borrowing Subsidiary, the authorization of the Transactions
insofar as they relate to such Borrowing Subsidiary and any other legal
matters reasonably relating to such Borrowing Subsidiary, its Borrowing
Subsidiary Agreement or such Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders as to
itself and its subsidiaries and each Borrowing Subsidiary covenants and agrees
with the Lenders as to itself and its subsidiaries that:
SECTION 5.01. Corporate Existence. The Company shall, and
shall cause each Significant Subsidiary to, preserve and maintain its corporate
existence, subject to the provisions of Section 6.04.
SECTION 5.02. Maintenance. The Company will maintain, preserve
and keep its Property necessary to the proper conduct of its business in
reasonably good repair, working order and condition (ordinary wear and tear and
damage by casualty excepted) and will from time to time make all necessary
repairs, renewals, replacements, additions and betterments thereto so that in
the judgment of the Company at all times such Property shall be reasonably
preserved and maintained, and will cause each Significant Subsidiary so to do
for Property owned or used by it, the failure of which to maintain or preserve
could reasonably be expected to have a Material Adverse Effect; provided,
however, that nothing in this Section 5.02 shall prevent the Company or a
Significant Subsidiary from discontinuing the operation or maintenance of any
such Property if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of the Subsidiary and
in the reasonable opinion of the Company is not disadvantageous in any material
respect to the Lenders.
SECTION 5.03. Taxes. The Company will duly pay and discharge,
and will cause each Subsidiary to pay and discharge, all material taxes, rates,
assessments, fees and governmental charges upon or against the Company or such
Subsidiary or against their respective Property, in each case before the same
becomes delinquent and before penalties accrue thereon,
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unless and to the extent that (a) the same is being contested in good faith and
by appropriate proceedings and adequate reserves under GAAP are provided
therefor or (b) the same could not reasonably be expected to give rise to a Lien
that would not be permitted under Section 6.02(d).
SECTION 5.04. Insurance. The Company will insure, and keep
insured, and will cause each Subsidiary to insure, and keep insured, with
reputable insurance companies, all insurable Property owned by it which is of a
character usually insured by companies similarly situated and operating like
Property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, the Company will
also insure, and cause each Subsidiary to insure, employers' and public and
product liability risks with reputable insurance companies. It is understood and
agreed that the Company will be deemed to be in compliance with this Section
5.04 with respect to Keebler and its subsidiaries at all times between the
Acquisition Date and the date that is one year thereafter to the extent that
Keebler and its Subsidiaries maintain insurance consistent with their past
practices. The Company will upon request of the Administrative Agent furnish to
the Administrative Agent, for distribution to each Lender, a summary setting
forth the nature and extent of the insurance maintained pursuant to this Section
5.04.
SECTION 5.05. Financial Reports and Other Information. The
Company will, and will cause each Subsidiary to, maintain a standard system of
accounting substantially in accordance with GAAP and will furnish to the Lenders
and their respective duly authorized representatives such information respecting
the business and financial condition of the Company and the Subsidiaries as they
may reasonably request; and without any request will furnish to the
Administrative Agent, which will make available by means of electronic posting
to each Lender:
(a) within 60 days after the end of each of the first three
quarterly fiscal periods of the Company, a copy of the Company's Form
10-Q Report filed with the SEC;
(b) within 120 days after the end of each fiscal year of the
Company, a copy of the Company's Form 10-K Report filed with the SEC,
including a copy of the annual report of the Company and the
Subsidiaries for such year with accompanying financial statements,
prepared by the Company and certified by independent public accountants
of recognized standing, in accordance with GAAP;
(c) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports the Company
sends to its shareholders, and copies of all other regular, periodic
and special reports and all registration statements the Company files
with the SEC, or with any national securities exchange; and
(d) (i) promptly after the Company has knowledge thereof,
notice (including a description in reasonable detail) of the occurrence
of any Default or Event of Default, and (ii) within five Business Days
after the Company has knowledge thereof, notice of any change to any
rating of the Index Debt by S&P or ▇▇▇▇▇'▇.
In addition, in the event that Subsidiaries not constituting Significant
Subsidiaries shall at any time (as a result of any acquisition or disposition of
any Person or line of business involving any party other than the Company and
the Subsidiaries or any reorganization of the Company or any Subsidiaries)
represent more than 10% of Consolidated Total Assets or Consolidated Net Sales
as
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of such date or for such period, the Company will promptly designate additional
Significant Subsidiaries by written notice to the Administrative Agent until
such excess has been eliminated.
Each of the financial statements furnished to the Lenders
pursuant to subsections (a) and (b) of this Section 5.05 shall be accompanied by
a compliance certificate in substantially the form of Exhibit E signed by a
Financial Officer of the Company. Each such financial statement shall also be
accompanied by a certificate signed by a Financial Officer of the Company
confirming compliance with the requirements set forth in the definition of
"Significant Subsidiary" and in the last sentence of the immediately preceding
paragraph, attaching a revised form of Schedule 3.02 showing all additions to
and removals from the Significant Subsidiaries since the date of the most
recently delivered form of Schedule 3.02 (or confirming that there have been no
changes from such most recently delivered form of Schedule 3.02). If the Company
is no longer required to file Form 10Q and 10K Reports with the SEC, the Company
will nevertheless furnish to the Lenders at the time herein above set forth all
the financial and other information that would have comprised such filings.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which in all material respects full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities as consistent with good business practices in the judgment of the
Company. The Company will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of the Food and Drug Administration and each other Governmental Authority
applicable to it or its property, including all Environmental Laws, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full the Company covenants and agrees with the Lenders as to itself and
its subsidiaries and each Borrowing Subsidiary covenants and agrees with the
Lenders as to itself and its subsidiaries that:
SECTION 6.01. Indebtedness. The Company will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist at any time:
(a) any Indebtedness of the Company secured by any Lien
encumbering any asset of the Company or any Subsidiary (other than
Indebtedness of the Company set forth on Schedule 6.01);
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(b) any Indebtedness of any Subsidiary (other than (i)
Indebtedness under this Agreement or the Five-Year Credit Agreement,
(ii) the Indebtedness of any Subsidiary set forth on Schedule 6.01,
(iii) Indebtedness to the Company or any other Wholly Owned Subsidiary
and (iv) Indebtedness of any Person that becomes a Subsidiary after the
date hereof that existed at the time such Person became a Subsidiary
and was not created in contemplation of or in connection with such
Person becoming a Subsidiary); or
(c) any Capital Lease Obligation;
if such creation, incurrence, assumption or existence would result in the sum,
without duplication, of (i) the aggregate principal amount of Indebtedness
outstanding under clauses (a), (b) and (c) above, (ii) the aggregate principal
amount of outstanding obligations secured by Liens permitted by Section 6.02(d),
(iii) the aggregate amount of the Financed Portions of all outstanding
Securitizations and (iv) the outstanding Attributable Debt in respect of
Sale-Leaseback Transactions permitted by Section 6.03(b) exceeding 10% of
Consolidated Total Assets as of the most recent fiscal quarter end for which
financial statements for the Company and its Subsidiaries are available.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances and Liens solely for the benefit of
the Company or any Wholly Owned Subsidiary;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof; and
(d) Liens not expressly permitted by clauses (a) through (c)
above and Securitizations; provided that the sum, without duplication,
at any time of (i) the aggregate principal amount of Indebtedness
outstanding under Sections 6.01(a), (b) and (c), (ii) the
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aggregate principal amount of outstanding obligations secured by Liens
permitted by this clause (d), (iii) the aggregate amount of the
Financed Portions of all outstanding Securitizations and (iv) the
outstanding Attributable Debt in respect of Sale-Leaseback Transactions
permitted by Section 6.03(b) shall not exceed 10% of Consolidated Total
Assets as of the most recent fiscal quarter end for which financial
statements for the Company and its Subsidiaries are available.
SECTION 6.03. Sale and Leaseback Transactions. The Company
will not, and will not permit any of its Subsidiaries to, enter into any
Sale-Leaseback Transaction except:
(a) Sale-Leaseback Transactions existing on the date hereof
and set forth on Schedule 6.03; and
(b) other Sale-Leaseback Transactions; provided that the sum,
without duplication, at any time of (i) the aggregate principal amount
of Indebtedness outstanding under Sections 6.01(a), (b) and (c), (ii)
the aggregate principal amount of outstanding obligations secured by
Liens permitted by Section 6.02(d), (iii) the aggregate amount of the
Financed Portions of all outstanding Securitizations and (iv) the
aggregate outstanding Attributable Debt in respect of Sale-Leaseback
Transactions permitted by this clause (b) does not at any time exceed
10% of Consolidated Total Assets as of the most recent fiscal quarter
end for which financial statements for the Company and its Subsidiaries
are available.
SECTION 6.04. Fundamental Changes. (a) The Company will not
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired and whether directly or
through any merger or consolidation of, or any sale, transfer, lease or other
disposition of Equity Interests in, or the assets of, any Subsidiary), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the Company in a transaction in which the Company is the
surviving corporation, (ii) any Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary
may sell, transfer, lease or otherwise dispose of its assets to the Company or
to another Subsidiary and (iv) any Subsidiary may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is in the
best interests of the Company and is not materially disadvantageous to the
Lenders.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries and Keebler
and its subsidiaries on the date of execution of this Agreement and businesses
reasonably related, ancillary, similar or supportive thereto.
SECTION 6.05. Use of Proceeds. The proceeds of the Loans will
be used only to provide liquidity in connection with the Company's commercial
paper program and for other general corporate purposes, provided that the
proceeds of Loans made prior to the Acquisition Date will be used solely for the
purpose of repaying commercial paper issued on or after the Effective Date to
the extent the proceeds of such commercial paper shall have been deposited in
the cash collateral account referred to in the last paragraph of Section 4.01.
No part of the
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proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X. Following the application of the proceeds of each
Loan, not more than 25% of the value of the assets of the Company and its
Subsidiaries which are subject to any arrangement hereunder whereby the
Company's or any Subsidiary's right or ability to sell, pledge or otherwise
dispose of assets is in any way restricted will be Margin Stock.
SECTION 6.06. Minimum Net Worth. The Company will not permit
Consolidated Net Worth as of any date to be less than US$700,000,000.
SECTION 6.07. Interest Expense Coverage Ratio. The Company
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending on or after the last day of the first fiscal quarter beginning
after the Acquisition Date, to be less than 3.0; provided that for purposes of
determining compliance with this Section 6.07 on the last day of such first
fiscal quarter and on the last day of each of the two next succeeding fiscal
quarters, Consolidated EBITDA and Consolidated Interest Expense shall be
determined for the period commencing with the first day of such first fiscal
quarter and ending at the end of the applicable period, rather than for a
four-fiscal-quarter period.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) (i) default in the payment when due of any principal on
any Loan, whether at the stated, maturity thereof or at any other time
provided in this Agreement, or (ii) default for a period of five days
in the payment when due of interest on any Loan, or (iii) default for a
period of 10 days in the payment when due of any other sum required to
be paid pursuant to this Agreement;
(b) default by any Borrower in the observance or performance
of any of the covenants set forth in Sections 5.01 (with respect to the
Company's existence) or 5.05(d) or in Article VI;
(c) default by any Borrower in the observance or performance
of any other provision hereof not mentioned in (a) or (b) above, which
is not remedied within 30 days after notice thereof to the Company by
the Administrative Agent or any Lender;
(d) any representation or warranty made (or deemed made)
herein by any Borrower, or in any statement or certificate furnished by
any Borrower pursuant hereto or in connection with any Loan, proves
untrue in any material respect as of the date of the issuance or making
(or deemed making) thereof;
(e) default in the payment when due, after any applicable
grace period, of any Indebtedness or any amount due under any Hedging
Agreement the US Dollar Equivalent of the aggregate principal amount of
which exceeds in the aggregate US$50,000,000 (the
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"Aggregate Amount") issued, assumed or guaranteed by the Company or any
Subsidiary (other than Indebtedness owing by any Subsidiary to the
Company or to another Subsidiary); or default or other event under any
indenture, agreement or other instrument under which any such
Indebtedness is outstanding or under any such Hedging Agreement (other
than a default under any provision of any other indenture, agreement or
other instrument to which any Lender is party that restricts the
ability of the Company or any Subsidiary to sell, pledge or otherwise
dispose of Margin Stock), and such default or event shall result in the
acceleration of the maturity or the required redemption or repurchase
of Indebtedness, or the early termination of and a required payment
under such Hedging Agreement, exceeding in the aggregate such Aggregate
Amount;
(f) any "reportable event" (as defined in ERISA) which
constitutes grounds for the termination of any Plan by the PBGC, or for
the appointment by an appropriate court of a trustee to administer or
liquidate any Plan, or could reasonably be expected to result in a
Material Adverse Effect, shall have occurred and be continuing 30 days
after written notice to such effect shall have been given to the
Company by the Administrative Agent; or any Plan shall be terminated by
the PBGC; or a trustee shall be appointed to administer any Plan; or
the PBGC shall institute proceedings to administer or terminate any
Plan; and in the case of any such event the aggregate amount of
unfunded liabilities under any affected Plan shall exceed (either
singly or in the aggregate in the case of any such liability arising
under more than one Plan) US$50,000,000; or the Company or any of its
Subsidiaries or any member of the Controlled Group of any of them shall
withdraw (completely or partially) from any "multiemployer plan" (as
defined in Section 4001(a)(3) of ERISA) and the aggregate amount of the
liability of the Company and its Subsidiaries to such plan under Title
IV of ERISA shall exceed (either singly or in the aggregate in the case
of any such liability arising under more than one such plan)
US$50,000,000;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Significant Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Significant
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Company or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Significant
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
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(i) the Company or any Significant Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of US$50,000,000 (except to the extent
covered by insurance as to which the insurer has acknowledged such
coverage in writing) shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Company
or any Subsidiary to enforce any such judgment;
(k) an "Event of Default" shall have occurred and be
continuing as defined in either the Five-Year Credit Agreement or, if
it remains outstanding, the Bridge Facility; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Company accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Company; and in case of any
event with respect to the Company described in clause (g) or (h) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower.
If a Default or Event of Default shall have occurred with
respect to any Borrowing Subsidiary (other than any Default or Event of Default
under a provision of this Agreement that applies to such Borrowing Subsidiary by
virtue of its status as a Subsidiary or a Significant Subsidiary and regardless
of whether it is a Borrowing Subsidiary), then immediately upon the repayment in
full of all Loans outstanding to such Borrowing Subsidiary and the delivery to
the Administrative Agent of a Borrowing Subsidiary Termination Agreement in
accordance with Section 2.20 such Default or Event of Default shall cease to be
effective with respect to such Borrowing Subsidiary.
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ARTICLE VIII
The Agents
In order to expedite the transactions contemplated by this
Agreement, Chase is hereby appointed to act as Administrative Agent and CMIL is
hereby appointed to act as London Agent on behalf of the Lenders. Each of the
Lenders hereby irrevocably authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to the Agents by the terms
of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
Any bank serving as 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 such Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Company, any Borrower or any Subsidiary or other Affiliate thereof as
if it were not such Agent hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) no Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that such 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
10.02), and (c) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Company, any Borrower or any
Subsidiary that is communicated to or obtained by the bank serving as Agent or
any of its Affiliates in any capacity. No Agent shall 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 10.02) or in the absence of its
own bad faith, gross negligence or wilful misconduct. No Agent shall be deemed
to have knowledge of any Default unless and until written notice thereof is
given to such Agent by a Borrower or a Lender, and no such Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (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 in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each 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 writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each 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. Each Agent may consult with legal counsel (who may be counsel for any
Borrower), 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.
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Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Such Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs and the provisions of Section
10.03 shall apply to any such sub-agent and to the Related Parties of the Agents
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, any Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right (in consultation with, and with the consent of, the Company,
which shall not be unreasonably withheld) to appoint a successor. 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 (in consultation with, and with
the consent of (unless an Event of Default has occurred and is continuing
pursuant to clause (g) or (h) of Article VII), the Company, which shall not
unreasonably withhold such consent and which shall, if the retiring Agent shall
so request, designate and approve a successor Agent) on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
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 an Agent's resignation hereunder, the
provisions of this Article and Section 10.03 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 Agents 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 Agents 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 other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
None of the institutions named as Co-Syndication Agents or
Documentation Agent in the heading of this Agreement shall, in their capacities
as such, have any duties or responsibilities of any kind under this Agreement.
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ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit to the
Borrowing Subsidiaries hereunder, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the
Obligations of the Borrowing Subsidiaries. The Company further agrees that the
due and punctual payment of the Obligations of the Borrowing Subsidiaries may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender to assert any claim or demand or to enforce any right or
remedy against any Borrowing Subsidiary under the provisions of this Agreement
any Borrowing Subsidiary Agreement, any other Loan Document or otherwise; (b)
any extension or renewal of any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or release from, any of the terms or provisions of
this Agreement, any Borrowing Subsidiary Agreement or any other Loan Document or
agreement; (d) the failure or delay of any Lender to exercise any right or
remedy against any other guarantor of the Obligations; (e) the failure of any
Lender to assert any claim or demand or to enforce any remedy under any Loan
Document or any other agreement or instrument; (f) any default, failure or
delay, wilful or otherwise, in the performance of the Obligations; or (g) any
other act, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Company or otherwise operate as a
discharge of the Company as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation.
The Company further agrees that its guarantee hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Lender may have at law or in equity against the Company by
virtue hereof, upon the failure of any Borrowing Subsidiary to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause
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to be paid, to the Administrative Agent for distribution to the Lenders in cash
an amount equal the unpaid principal amount of such Obligation. The Company
further agrees that if payment in respect of any Obligation shall be due in a
currency other than US Dollars and/or at a place of payment other than New York
and if, by reason of any legal prohibition, disruption of currency or foreign
exchange markets, war or civil disturbance or other event, payment of such
Obligation in such currency or at such place of payment shall be impossible or,
in the reasonable judgment of any Lender, not consistent with the protection of
its rights or interests, then, at the election of such Lender, the Company shall
make payment of such Obligation in US Dollars (based upon the applicable
Exchange Rate in effect on the date of payment) and/or in New York, and shall
indemnify such Lender against any losses or expenses (including losses or
expenses resulting from fluctuations in exchange rates) that it shall sustain as
a result of such alternative payment.
Upon payment in full by the Company of any Obligation of any
Borrowing Subsidiary, each Lender shall, in a reasonable manner, assign to the
Company the amount of such Obligation owed to such Lender and so paid, such
assignment to be pro tanto to the extent to which the Obligation in question was
discharged by the Company, or make such disposition thereof as the Company shall
direct (all without recourse to any Lender and without any representation or
warranty by any Lender). Upon payment by the Company of any sums as provided
above, all rights of the Company against any Borrowing Subsidiary arising as a
result thereof by way of right of subrogation or otherwise shall in all respects
be subordinated and junior in right of payment to the prior indefeasible payment
in full of all the Obligations owed by such Borrowing Subsidiary to the Lenders
(it being understood that, after the discharge of all the Obligations due and
payable from such Borrowing Subsidiary, such rights may be exercised by the
Company notwithstanding that such Borrowing Subsidiary may remain contingently
liable for indemnity or other Obligations).
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at One ▇▇▇▇▇▇▇ Square, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of each of the Treasurer
and the General Counsel (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to any Borrowing Subsidiary, to it in care of the
Company as provided in paragraph (a) above;
(c) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
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(d) if to the London Agent, to it at Chase Manhattan
International Limited, Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London,
England E19YT, Attention of Loans Agency Division (Telecopy No.
011-44-171-777-2360), with a copy to the Administrative Agent as
provided in paragraph (c) above; and
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
any Agent or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents and the Lenders hereunder and under any other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Administrative Agent with the consent
of the Required Lenders and, in the case of any other Loan Document, each
applicable Borrower (or the Company on behalf of such Borrower); provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable to any Lender
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender
affected thereby, (v) change Section 2.09(c) in a manner that would alter the
pro rata reduction of Commitments required thereby, without the written consent
of each Lender affected thereby, (vi) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision of any
Loan Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender, or (vii) release
the Company from its obligations under Article IX, without the written
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consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of any Agent hereunder without
the prior written consent of such Agent. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Company, the Required Lenders and the Administrative Agent (and, if
its rights or obligations are affected thereby, the London Agent) if (i) by the
terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates, including the reasonable fees, charges and
disbursements of one outside counsel for the Administrative Agent and the London
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers (requested by or for the benefit of any
Borrower) of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket
expenses incurred by any Agent or any Lender, including the fees, charges and
disbursements of any counsel for any Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrowers shall indemnify each Agent, and each Lender,
and each Related Party of any of the foregoing Persons involved directly or
indirectly in the Transactions (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (other than Excluded Taxes), including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of any Loan Document or any agreement
or instrument contemplated thereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Company
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (A) do not result in actual out-of-pocket loss
or expense by such Indemnitee or (B) result from the bad faith, wilful
misconduct or gross negligence of such Indemnitee or the breach by such
Indemnitee of its agreements set forth in the Loan Documents.
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by them to any Agent under paragraph (a) or (b) of this
Section each Lender severally agrees to pay to such Agent, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the
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unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against such Agent in
its capacity as such.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor setting forth the amount and the nature
of the expense or claim, as applicable.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or under any Borrowing Subsidiary Agreement without the prior written
consent of each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Agents and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than US$5,000,000 unless each of the Company and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not apply
to rights in respect of outstanding Competitive Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of US$3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
any consent of the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (g) or (h) of Article VII has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and
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obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17
and 10.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrowers, the Agents and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by any Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Agents, 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to
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the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Company's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Company, to comply with Section 2.17(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Bank") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Bank, identified as such in writing from time to
time by the Granting Bank to the Administrative Agent and the Borrowers, the
option to provide to the Borrowers all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the Borrowers pursuant to
Section 2.01; provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC and (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall be deemed to utilize the Commitment of the
Granting Bank to the same extent, and as if, such Loan were made by the Granting
Bank. Each party hereto hereby agrees that no SPC shall be liable for any
payment under this Agreement for which a Lender would otherwise be liable, for
so long as, and to the extent, the related Granting Bank makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees that, prior to the
date that is one year and one day after the payment in full of all outstanding
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 10.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrowers and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Bank or to any
financial institutions (if consented to by the Borrowers and Administrative
Agent) providing liquidity and/or credit facilities to or for the account of
such SPC to fund the Loans made by such SPC or to support the securities (if
any) issued by such SPC to fund such Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans (but not relating to any
Borrower, except with the Company's consent) to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein, in the other Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any Agent or any Lender may have had notice or
knowledge of any Default or incorrect
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representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 10.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of any Loan
Document held to be invalid, illegal or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions of such Loan Document; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender 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 obligations at any time owing by such Lender
or Affiliate to or for the credit or the account of any Borrower (other than
payroll accounts and trust accounts) against any of and all the obligations of
the Borrowers now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement. The rights of each Lender under this Section are in
addition to and shall not limit other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to
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any Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final 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 or any other Loan Document shall affect any right that
any Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Borrower or
its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. 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.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
hereto or thereto to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any
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remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty to any swap or derivative
transaction relating to the Borrowers and their obligations, or any advisor of
any such counterparty, (g) with the consent of any Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to any Agent, or any Lender on
a nonconfidential basis from a source other than a Borrower. For the purposes of
this Section, "Information" means all information received from the Borrowers
relating to the Borrowers or their business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by a Borrower; provided that, in the case of
information received from a Borrower after the date hereof, such information is
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as a prudent Person engaged in the same business or following
customary procedures for such business would accord to its own confidential
information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto
(including any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the
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Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 10.14 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
▇▇▇▇▇▇▇ COMPANY,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President, Chief
Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN INTERNATIONAL LIMITED, as
London Agent,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇'▇ Bank, PLC
by /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
72
BANK OF AMERICA, NA.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
73
CITIBANK, N.A.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
74
ABN AMRO BANK N.V.,
by /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Vice President
75
BNP PARIBAS,
by /s/ Jo ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: Jo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
by /s/ F.C.H. ▇▇▇▇▇
--------------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
77
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
78
BANK ONE NA,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
79
CREDIT LYONNAIS, NEW YORK BRANCH,
by: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: SENIOR VICE PRESIDENT
80
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
81
THE FUJI BANK, LIMITED,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President & Group Head
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Associate Director
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Associate Director
83
MELLON BANK, N.A.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
84
THE SANWA BANK, LIMITED
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
85
THE SUMITOMO BANK LIMITED
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
86
SUNTRUST BANK,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager
88
THE NORTHERN TRUST COMPANY,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Second Vice President
89
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
90
THE TOKAI BANK, LIMITED-NEW YORK
BRANCH,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant General Manager
91
BANCO BILBAO VIZCAYA ARGENTARIA,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Global Corporate Banking
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Corporate Banking
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST
COMPANY
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
93
UNICREDITO ITALIANO S.P.A., NEW
YORK BRANCH,
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President &
Deputy Manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President