EXHIBIT 10.13
EXECUTION COPY
U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of July 2, 2003
Among
MONSANTO COMPANY
as Borrower,
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders,
CITIBANK, N.A.
as Administrative Agent,
JPMORGAN CHASE BANK
as Syndication Agent,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
THE BANK OF TOKYO-MITSUBISHI, LTD.
and
BANK ONE, NA
as Co-Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC. and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................................1
----------------------
SECTION 1.02. Computation of Time Periods........................................................................11
----------------------------
SECTION 1.03. Accounting Terms...................................................................................11
-----------------
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances......................................................................11
------------------------------
SECTION 2.02. Making the Revolving Credit Advances...............................................................11
-------------------------------------
SECTION 2.03. The Competitive Bid Advances.......................................................................12
-----------------------------
SECTION 2.04. Fees...............................................................................................15
-----
SECTION 2.05. Termination or Reduction of the Commitments........................................................15
--------------------------------------------
SECTION 2.06. Repayment of Revolving Credit Advances.............................................................16
---------------------------------------
SECTION 2.07. Interest on Revolving Credit Advances; Regulation D Compensation...................................16
-----------------------------------------------------------------
SECTION 2.08. Interest Rate Determination........................................................................17
----------------------------
SECTION 2.09. Optional Conversion of Revolving Credit Advances...................................................17
-------------------------------------------------
SECTION 2.10. Optional Prepayments of Revolving Credit Advances..................................................18
--------------------------------------------------
SECTION 2.11. Increased Costs....................................................................................18
----------------
SECTION 2.12. Illegality.........................................................................................20
-----------
SECTION 2.13. Payments and Computations..........................................................................20
--------------------------
SECTION 2.14. Taxes..............................................................................................21
------
SECTION 2.15. Sharing of Payments, Etc...........................................................................23
-------------------------
SECTION 2.16. Use of Proceeds....................................................................................23
----------------
SECTION 2.17. Extension of Termination Date......................................................................23
------------------------------
SECTION 2.18. Evidence of Debt...................................................................................25
-----------------
i
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03....................................25
----------------------------------------------------------------
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing and Extension Date.........................27
---------------------------------------------------------------------------
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing.............................................27
-------------------------------------------------------
SECTION 3.05. Determinations Under Sections 3.01 and 3.02........................................................27
--------------------------------------------
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................................28
-----------------------------------------------
SECTION 4.02. Representation and Warranty of the Lenders.........................................................28
-------------------------------------------
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants..............................................................................29
----------------------
SECTION 5.02. Negative Covenants.................................................................................30
-------------------
SECTION 5.03. Financial Covenant.................................................................................31
-------------------
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................31
------------------
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action...........................................................................33
-------------------------
SECTION 7.02. Agent's Reliance, Etc..............................................................................33
----------------------
SECTION 7.03. Citibank and Affiliates............................................................................34
------------------------
SECTION 7.04. Lender Credit Decision.............................................................................34
-----------------------
SECTION 7.05. Indemnification....................................................................................34
----------------
SECTION 7.06. Successor Agent....................................................................................34
----------------
SECTION 7.07. Other Agents.......................................................................................35
-------------
ii
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................................................................35
----------------
SECTION 8.02. Notices, Etc.......................................................................................35
-------------
SECTION 8.03. No Waiver; Remedies................................................................................35
--------------------
SECTION 8.04. Costs and Expenses.................................................................................36
-------------------
SECTION 8.05. Right of Set-off...................................................................................36
-----------------
SECTION 8.06. Binding Effect.....................................................................................37
---------------
SECTION 8.07. Assignments and Participations.....................................................................37
-------------------------------
SECTION 8.08. Confidentiality....................................................................................39
----------------
SECTION 8.09. Governing Law......................................................................................39
--------------
SECTION 8.10. Execution in Counterparts..........................................................................39
--------------------------
SECTION 8.11. Jurisdiction, Etc..................................................................................39
------------------
SECTION 8.13. Waiver of Jury Trial...............................................................................41
---------------------
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Exhibits
--------
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Notice of Extension of Termination Date
iii
364-DAY CREDIT AGREEMENT
Dated as of July 2, 2003
MONSANTO COMPANY, a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
CITIGROUP GLOBAL MARKETS INC. and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as joint lead
arrangers and joint bookrunners (the "Joint Lead Arrangers"), JPMORGAN CHASE
BANK, as syndication agent, and COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES ("Commerzbank"), THE BANK OF TOKYO-MITSUBISHI, LTD. and BANK ONE, NA,
as co-documentation agent, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank with its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Aggregate Amount of Financing Outstanding" at any time means the
aggregate amount of proceeds received in connection with a Permitted
Receivables Financing, less (a) any amounts collected in connection
with the accounts receivable sold, conveyed or otherwise transferred
pursuant to such financing and (b) the amount of any defaulted
accounts receivable the uncollectibility of which is a risk assumed by
the transferee of such accounts receivable.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Agent as its
Applicable Lending Office with respect to such Competitive Bid
Advance.
"Applicable Margin" means, for Base Rate Advances, 0.0% per annum
and, for Eurodollar Rate Advances as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
---------------------------------- -------------------------------- --------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇ Eurodollar Rate Advances Prior Eurodollar Rate Advances
to Term Loan Conversion Date On and After Term Loan
Conversion Date
---------------------------------- -------------------------------- --------------------------------
Level 1
-------
A+ or A1 0.195% 0.500%
---------------------------------- -------------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A or A2 0.235% 0.550%
---------------------------------- -------------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A- or A3 0.320% 0.700%
---------------------------------- -------------------------------- --------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
BBB+ or Baa1 0.525% 0.950%
---------------------------------- -------------------------------- --------------------------------
Level 5
-------
Lower than ▇▇▇▇▇ ▇ 0.850% 1.450%
---------------------------------- -------------------------------- --------------------------------
"Applicable Percentage" means, for each date prior to the Term
Loan Conversion Date, a percentage per annum determined by reference
to the Public Debt Rating in effect on such date as set forth below:
---------------------------------- -------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
---------------------------------- -------------------------------
Level 1
-------
A+ or A1 0.055%
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A or A2 0.065%
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A- or A3 0.080%
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
BBB+ or Baa1 0.100%
---------------------------------- -------------------------------
Level 5
-------
Lower than ▇▇▇▇▇ ▇ 0.150%
---------------------------------- -------------------------------
"Applicable Utilization Fee" means, for each date prior to the
Term Loan Conversion Date that the aggregate principal amount of the
Advances exceeds 25% of the aggregate Commitments, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
---------------------------------- -------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
---------------------------------- -------------------------------
Level 1
-------
A+ or A1 0.050%
---------------------------------- -------------------------------
2
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A or A2 0.050%
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
A- or A3 0.100%
---------------------------------- -------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ but at least
BBB+ or Baa1 0.125%
---------------------------------- -------------------------------
Level 5
-------
Lower than ▇▇▇▇▇ ▇ 0.250%
---------------------------------- -------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.17(c).
"Assumption Agreement" has the meaning specified in Section
2.17(c).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of
(i)1/2of 1% per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors
of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting
of or including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
3
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if
such Lender has entered into any Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 8.07(d), as such amount may be reduced pursuant to
Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to
a Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted by the Borrower under the competitive
bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower of
a Competitive Bid Advance payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from such
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender which information is non-public,
confidential or proprietary in nature, but does not include any such
information (a) that is or becomes generally available to the public
other than as the result of an unauthorized disclosure by the Agent or
any Lender or (b) that is or becomes available to the Agent or such
Lender from a source other than the Borrower and the Agent or such
Lender had no reason to believe that such source did not have
legitimate possession of such information or such source was under any
obligation to keep such information confidential.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Net Worth" at any time, means the sum of the
capital stock accounts (excluding capital stock subscribed for and
unissued), surplus accounts (including earned surplus, capital surplus
and the balance of the current profit and loss account not transferred
to surplus) and other equity accounts (including accumulated currency
adjustments, unrealized investment or derivative gains and losses,
minimum pension liabilities and unallocated ESOP shares) of the
Borrower and its Subsidiaries appearing on the most recent
consolidated balance sheet of the Borrower and its Subsidiaries
delivered pursuant to Section 5.01(f)(i) or (ii), as applicable,
prepared in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e).
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred
in the ordinary course of such Person's business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases that have been
or should be, in accordance with GAAP, recorded as capital
4
leases, (f) all obligations, contingent or otherwise, of such Person
in respect of acceptances, letters of credit or similar extensions of
credit, (g) all obligations of such Person in respect of Hedge
Agreements, (h) all Debt of others referred to in clauses (a) through
(g) above or clause (i) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such
Debt, (2) to purchase, sell or lease (as lessee or lessor) property,
or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of
such Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Debt for Borrowed Money" of any Person means, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (c) all obligations of such
Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (d) during the term
of a Permitted Receivables Financing, the Aggregate Amount of
Financing Outstanding in connection with domestic accounts receivable
pursuant to such financing and (e) all debt of others referred to in
clauses (a) through (d) above guaranteed directly or indirectly in any
manner by such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"▇▇▇▇▇" means the electronic disclosure system for the receipt,
storage, retrieval and dissemination of public documents filed with
the Securities and Exchange Commission.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless
an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approval not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or written judicial policy or guidance that is publicly
available, in each case relating to pollution or protection of the
environment, health and safety as they relate to Hazardous Materials
or natural resources,
5
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has
been waived by the PBGC; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator
of any Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(c) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to such
Plan pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of,
or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to such Reference Bank's ratable share of an amount equal to such
Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period. If the Telerate
Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for any Interest Period for each Advance comprising
part of the same Revolving Credit Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by
the Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of
Section 2.08.
6
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Information Memorandum" means the information memorandum dated
June 9, 2003 (including all exhibits and attachments thereto) used by
the Agent in connection with the syndication of the Commitments, as
up-dated from time to time by any subsequent filings by the Borrower
with the Securities and Exchange Commission.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day
of the period selected by the Borrower pursuant to the provisions
below and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months or, if available to all Lenders, nine months, as the Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
7
(i) the Borrower may not select any Interest Period that
ends after the Termination Date or, if the Revolving Credit
Advances have been converted to a term loan pursuant to Section
2.06 prior to such selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs on
the last day of a calendar month or on a day of an initial
calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.17 and each Person
that shall become a party hereto pursuant to Section 2.11, Section
2.12 or Section 8.07.
"Leverage Ratio" of the Borrower means the ratio of Consolidated
Debt for Borrowed Money of the Borrower and its Subsidiaries to the
sum of Consolidated Debt for Borrowed Money of the Borrower and its
Subsidiaries plus Consolidated Net Worth.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum (rounded upward to
the nearest 1/100 of 1%) appearing on Telerate Markets Page 3750 (or
any successor page) as the London interbank offered rate for deposits
in U.S. dollars at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to the amount that
would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period. If the Telerate Markets Page 3750 (or any
successor page) is unavailable, the LIBO Rate for any Interest Period
for each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks
two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"LIBO Rate Advance" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement
having the effect of security, including, without limitation, the lien
or retained security title of a conditional vendor.
8
"Material Adverse Change" means any material adverse change in
the financial condition or results of operations of the Borrower or
the Borrower and its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the financial condition or results of operations of the Borrower or
the Borrower and its Consolidated Subsidiaries taken as a whole or (b)
the ability of the Borrower to perform its obligations under this
Agreement or any Note.
"Material Subsidiary" means, at any time, a domestic Consolidated
Subsidiary of the Borrower having (i) at least 10% of the total
Consolidated assets of the Borrower and its Subsidiaries (determined
as of the last day of the most recent fiscal quarter of the Borrower)
or (ii) at least 10% of the Consolidated net sales of the Borrower and
its Subsidiaries for the twelve month period ending on the last day of
the most recent fiscal quarter of the Borrower.
"Maturity Date" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Borrower or any ERISA Affiliate and at least one Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Receivables Financing" means any financing pursuant to
which the Borrower or any Subsidiary of the Borrower may sell, convey,
or otherwise transfer to a Receivables Subsidiary or any other Person,
or grant a security interest in, any accounts receivable (and related
assets) of the Borrower or such Subsidiary, provided that such
financing shall be on customary market terms and shall be with limited
or no recourse to the Borrower and its Subsidiaries (other than the
Receivables Subsidiary) except to the extent customary for such
transactions.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be
9
determined by reference to the available rating; (b) if neither S&P
nor Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee
will be set in accordance with Level 5 under the definition of
"Applicable Margin", "Applicable Percentage" or "Applicable
Utilization Fee", as the case may be; (c) if the ratings established
by S&P and Moody's shall fall within different levels, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee
shall be based upon the higher rating, provided that if the lower of
such ratings is more than one level below the higher of such ratings,
then the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based on the rating that is the
level above the lower of such ratings; (d) if any rating established
by S&P or Moody's shall be changed, such change shall be effective as
of the date on which such change is first announced publicly by the
rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as
the case may be.
"Receivables Subsidiary" means a bankruptcy-remote,
special-purpose wholly owned Subsidiary formed in connection with a
Permitted Receivables Financing.
"Reference Banks" means Citibank, JPMorgan Chase Bank and
Commerzbank; provided that the Borrower may at any time substitute
another Lender as one of the Reference Banks, but such substitution
shall terminate after 30 days if within such period the Required
Lenders shall have notified the Agent of their objection to such
substitution.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed more than 50%
of the then aggregate unpaid principal amount of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having more than 50% of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
10
"Term Loan Conversion Date" means the Termination Date on which
all Revolving Credit Advances outstanding on such date are converted
into a term loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) June 30, 2004,
subject to the extension thereof pursuant to Section 2.17 and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.17 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate amount not to
exceed at any time outstanding such Lender's Commitment, provided that the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Revolving Credit Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00 A.M. (New York
City time) on the date of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice
of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex, in substantially the form of Exhibit B-1
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount
of such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Revolving Credit Borrowing, make available for the account of
its Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the applicable
11
conditions set forth in Article III, the Agent will make such funds available to
the Borrower that requested such Revolving Credit Borrowing at the Agent's
address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select Eurodollar Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than $15,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than six
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower providing such notice. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies
is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender's ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower that requested such
Borrowing severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Revolving Credit Advance as part of such
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Revolving Credit Advance to be made by
such other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make Competitive Bid Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of each Competitive
Bid Borrowing, the aggregate amount of the Advances then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders (computed without
regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex,
a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as part of
such Competitive Bid Borrowing (which maturity date may not be earlier
than the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the Termination Date), (y) interest payment
date or dates relating thereto, and (z) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than 10:00
12
A.M. (New York City time) (A) at least one Business Day prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum
(the Advances comprising any such Competitive Bid Borrowing being
referred to herein as "Fixed Rate Advances") and (B) at least five
Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower giving such Notice of
Competitive Bid Borrowing. The Agent shall in turn promptly notify
each Lender of each request for a Competitive Bid Borrowing received
by it from the Borrower by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower requesting such proposed Competitive Bid Borrowing as
part of such proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying
the Agent (which shall give prompt notice thereof to the Borrower),
before 9:30 A.M. (New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and before 10:00 A.M. (New York City
time) three Business Days before the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, of the minimum amount and maximum amount of
each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which amounts
may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates
of interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; provided that if the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent, before 10:00 A.M. (New York City time) on the date
on which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive
Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower requesting such proposed Competitive Bid
Borrowing shall, in turn, before 10:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
11:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving notice to the Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender
for such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Agent notice to
that effect. The Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances in order of
the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
13
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive
Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent
shall in turn promptly notify (A) each Lender that has made an offer
as described in paragraph (ii) above, of the date and aggregate amount
of such Competitive Bid Borrowing and whether or not any offer or
offers made by such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender
as part of such Competitive Bid Borrowing, and (C) each Lender that is
to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Agent has received forms of
documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing shall, before 12:00 noon (New
York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Lender shall
have received notice from the Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds,
such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to the Borrower at the Agent's address referred to in
Section 8.02. Promptly after each Competitive Bid Borrowing the Agent
will notify each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to
fund the Competitive Bid Advance to be made by such Lender as part of
such Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower shall be in
compliance with the limitation set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section 2.03,
the Borrower may from time to time borrow under this Section 2.03, repay or
prepay pursuant to subsection (d) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Lender
that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. No Borrower
shall have any right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
14
(e) The Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default,
the Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note evidencing
such Competitive Bid Advance unless otherwise agreed in such Competitive Bid
Note.
(f) The indebtedness of the Borrower resulting from each Competitive Bid
Advance made as part of a Competitive Bid Borrowing shall be evidenced by a
separate Competitive Bid Note payable to the order of the Lender making such
Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the later of the Effective Date and the effective date specified
in the Assumption Agreement or the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination Date
at a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December commencing September 30, 2003, and on the Termination
Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Borrower and the Agent,
and shall pay to each Joint Lead Arranger for its own account such fees and as
may from time to time be agreed between the Borrower and such Joint Lead
Arranger.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrower shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Commitments of the Lenders, provided that each partial
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
(b) Mandatory. On the Termination Date, if the Borrower has made the Term
Loan Election in accordance with Section 2.06 prior to such date, and from time
to time thereafter upon each prepayment of the Revolving Credit Advances, the
Commitments of the Lenders shall be automatically and permanently reduced on a
pro rata basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction exceeds (ii) the aggregate
unpaid principal amount of all Revolving Credit Advances outstanding at such
time.
SECTION 2.06. Repayment of Revolving Credit Advances. The Borrower shall,
subject to the next succeeding sentence, repay to the Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding. The Borrower may, upon not less
than 15 days' notice to the Agent, elect (the "Term Loan Election") to convert
all of the Revolving Credit Advances outstanding on the Termination Date in
effect at such time into a term loan which the Borrower shall repay in full
ratably to the Lenders on the Maturity Date; provided that the Term Loan
Election may not be exercised if a Default has occurred and is continuing on the
date of notice of the Term Loan Election or on the date on which the Term Loan
Election is to be effected. All Revolving Credit Advances converted into a term
loan pursuant to this Section 2.06 shall continue to constitute Revolving Credit
Advances except that the Borrower may not reborrow pursuant to Section 2.01
after all or any portion of such Revolving Credit Advances have been prepaid
pursuant to Section 2.10.
15
SECTION 2.07. Interest on Revolving Credit Advances; Regulation D
Compensation. (a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (2) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Credit Advance to the
sum of (x) the Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (y) the Applicable Margin in effect from time to time
plus (z) the Applicable Utilization Fee, if any, in effect from time to
time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Borrower shall pay interest on (i)
the unpaid principal amount of each Revolving Credit Advance made to it owing to
each Lender, payable in arrears on the dates referred to in clause (a) above, at
a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
(c) Regulation D Compensation. Each Lender that is subject to reserve
requirements of the Board of Governors of the Federal Reserve System (or any
successor) may require the Borrower to pay, contemporaneously with each payment
of interest on Eurodollar Rate Advances or LIBO Rate Advances, additional
interest on the related Eurodollar Rate Advances or LIBO Rate Advances, as
applicable, of such Lender at the rate per annum equal to the excess of (i)(A)
the applicable Eurodollar Rate or LIBO Rate, divided by (B) one minus the
Eurodollar Rate Reserve Percentage over (ii) the rate specified in clause
(i)(A). Any Lender wishing to require payment of such additional interest shall
so notify the Agent and the Borrower, in which case such additional interest on
the Eurodollar Rate Advances or LIBO Rate Advances, as applicable, of such
Lender shall be payable to such Lender at the place indicated in such notice
with respect to each Interest Period commencing after the giving of such notice.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurodollar Rate and each LIBO Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving
16
Credit Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
(f) If Telerate Markets Page 3750 (or any successor page) is unavailable
and fewer than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or LIBO Rate Advances, or to Convert Revolving Credit Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower giving such notice.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances. The
Borrower may, in the case of Eurodollar Rate Advances, upon at least two
Business Days' notice to the Agent and, in the case of Base Rate Advances, upon
notice to the Agent not later than 10:00 A.M. (New York City time) on the date
of the proposed prepayment, stating in each case the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
17
shall be in an aggregate principal amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then such Lender may from time to time give notice of such
circumstances to the Borrower (with a copy of such notice to the Agent);
provided, however, that each Lender agrees, before giving any such notice, to
use its reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such designation would avoid the need for, or reduce the amount
of, such increased costs and would not be disadvantageous to such Lender. The
amount sufficient to compensate such Lender in light of such increase in costs
to such Lender or any corporation controlling such Lender shall be determined by
such Lender in good faith on a basis that allocates the amounts sufficient to
compensate such Lender in light of such increase ratably among all applicable
Advances. A certificate specifying the event referred to in this Section
2.11(a), the amount sufficient to compensate such Lender and the basis of its
calculations (which shall be reasonable), submitted in good faith to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Each Lender agrees to provide reasonably prompt
notice to the Borrower of the occurrence of any event referred to in the first
sentence of this Section 2.11(a).
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) after the date hereof affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, such Lender may from
time to time give notice of such circumstances to the Borrower (with a copy of
such notice to the Agent); provided, however, that each Lender agrees, before
giving any such notice, to use its reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid the need
for, or reduce the amount of, the cost to such Lender of such increase in the
amount of capital maintained by such Lender and would not be disadvantageous to
such Lender. The amount sufficient to compensate such Lender in light of such
increase in capital maintained by such Lender or any corporation controlling
such Lender shall be determined by such Lender in good faith to the extent that
such Lender reasonably determines such increase in capital to be allocable to
the existence of such Lender's commitment to lend hereunder. A certificate
specifying the event referred to in this Section 2.11(b), the amount sufficient
to compensate such Lender and the basis of its calculations (which shall be
reasonable), submitted in good faith to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
Each Lender agrees to provide reasonably prompt notice to the Borrower of the
occurrence of any event referred to in the first sentence of this Section
2.11(b).
(c) The Borrower shall, within five days of receiving a notice from any
Lender pursuant to clause (a) or (b) of this Section 2.11, elect (and shall
notify such Lender and the Agent of such election) to:
(i) pay to the Agent for the account of such Lender, from time to time
commencing on the date of notice by such Lender and as specified by such
Lender, (A) the amount such Lender has set forth in the certificate which
such Lender has delivered to the Borrower pursuant to clause (a) of this
Section 2.11 or (B) the amount such Lender has set forth in the certificate
which such Lender has delivered to the Borrower pursuant to clause (b) of
this Section 2.11, as the case may be; or
(ii) terminate such Lender's Commitment on a date which shall be
specified in the notice sent by the Borrower, and such Lender's Commitment
shall terminate on such date; provided, however, that the aggregate amount
of the Commitments of the Lenders shall not be reduced, as a result of any
such termination, to an amount that is less than the sum of the aggregate
principal amount of the Advances then outstanding; provided, further, that
18
such termination shall not be effective if, after giving effect to such
termination, the aggregate amount of the Commitments so terminated or
assigned under this Section 2.11 and Section 2.12(b) during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments
as of the Effective Date; and provided further, that upon termination of a
Lender's Commitment under this Section 2.11(c)(ii), the Borrower shall on
the date such termination becomes effective pay, prepay or cause to be
prepaid the aggregate principal amount of all Advances owing to such
Lender, together with accrued interest thereon to the date of payment of
such principal amount, all facility fees and other fees payable to such
Lender and all other amounts payable to such Lender under this Agreement
(including, but not limited to, any increased costs or other additional
amounts (computed in accordance with this Section 2.11), and any Taxes,
incurred by such Lender prior to the effective date of such termination and
amounts payable under Section 8.04(a)). Upon such payments and prepayments,
the obligations of such Lender hereunder, by the provisions hereof, shall
be released and discharged. Such Lender's rights under Sections 2.11, 2.14
and 8.04(b), and its obligations under Section 7.05, shall survive such
release and discharge as to matters occurring prior to date of such
termination; or
(iii) require that such Lender assign to the Borrower's designated
assignee or assignees, in accordance with the terms of Section 8.07, all
Advances then owing to such Lender and all rights and obligations of such
Lender hereunder; provided that (A) each such assignment shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or assignments
which together cover all of the rights and obligations of the assigning
Lender under this Agreement, (B) no Lender shall be obligated to make any
such assignment as a result of a demand by the Borrower pursuant to this
Section 2.11(c) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of all Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount, all facility fees
and other fees payable to such Lender and all other amounts payable to such
Lender under this Agreement (including, but not limited to, any increased
costs or other additional amounts (computed in accordance with this Section
2.11), and any Taxes, incurred by such Lender prior to the effective date
of such assignment and amounts payable under Section 8.04(a)) and (C) each
such assignment shall be made pursuant to an Assignment and Acceptance;
provided, however, that such assignment shall not be effective if, after
giving effect to such assignment, the aggregate amount of the Commitments
so assigned or terminated under this Section 2.11 and Section 2.12(b)
during the term of this Agreement would exceed 25% of the aggregate amount
of the Commitments as of the Effective Date. Upon such payments and
prepayments, the obligations of such Lender hereunder, by the provisions
hereof, shall be released and discharged; provided, however, that such
Lender's rights under Sections 2.11, 2.14 and 8.04(b), and its obligations
under Section 7.05, shall survive such release and discharge as to matters
occurring prior to the date of termination of such Lender's Commitment.
SECTION 2.12. Illegality. (a) Notwithstanding any other provision of this
Agreement, if any Lender (any such Lender being referred to herein as an
"Affected Lender") shall notify the Agent that the introduction of or any change
in or in the interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
any Lender or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist. The
Borrower's right to require an assignment in accordance with clause (b)(ii)
below shall not be effective to the extent that Lenders representing a majority
of the Commitments then outstanding shall be "Affected Lenders".
(b) The Borrower shall, within five days of receiving a notice from any
Affected Lender pursuant to clause (a) of this Section 2.12, elect (and shall
notify such Affected Lender and the Agent of such election) to:
(i) prepay in full all Eurodollar Rate Advances or LIBO Rate Advances
then outstanding, together with interest thereon, unless in the case of
Eurodollar Rate Advances the Borrower, within five Business Days of written
19
notice from the Agent, converts all Eurodollar Rate Advances of all Lenders
then outstanding into Base Rate Advances in accordance with Section 2.09;
or
(ii) require that such Affected Lender assign to the Borrower's
designated assignee or assignees, in accordance with the terms of Section
8.07, all Advances then owing to such Affected Lender and all rights and
obligations of such Affected Lender hereunder; provided that (A) each such
assignment shall be either an assignment of all of the rights and
obligations of the assigning Affected Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently
with another such assignment or assignments which together cover all of the
rights and obligations of the assigning Affected Lender under this
Agreement, (B) no Affected Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to this Section
2.12(b) unless and until such Affected Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of all Advances owing to such Affected Lender, together with accrued
interest thereon to the date of payment of such principal amount, all
facility fees and other fees payable to such Affected Lender and all other
amounts payable to such Affected Lender under this Agreement (including,
but not limited to, any increased costs or other additional amounts
(computed in accordance with Section 2.11), and any Taxes, incurred by such
Affected Lender prior to the effective date of such assignment and amounts
payable under Section 8.04(a)) and (C) each such assignment shall be made
pursuant to an Assignment and Acceptance; provided, however, that such
assignment shall not be effective if, after giving effect to such
assignment, the aggregate amount of the Commitments so assigned or
terminated under this Section 2.12(b) and Section 2.11 during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments
as of the Effective Date. Upon such payments and prepayments, the
obligations of such Affected Lender hereunder, by the provisions hereof,
shall be released and discharged; provided, however, that such Affected
Lender's rights under Sections 2.11, 2.14 and 8.04(b), and its obligations
under Section 7.05, shall survive such release and discharge as to matters
occurring prior to the date of termination of such Affected Lender's
Commitment.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 11:00 A.M. (New York City
time) on the day when due in U.S. dollars to the Agent at the Agent's Account in
same day funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees ratably
(other than amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to
the Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon any Assuming Lender
becoming a Lender hereunder as a result of an extension of the Termination Date
pursuant to Section 2.17, and upon the Agent's receipt of such Lender's
Assumption Agreement and recording of the information contained therein in the
Register, from and after the applicable Extension Date, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect
of the interest assumed thereby to the Assuming Lender. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurodollar Rate or the LIBO Rate or the
Federal Funds Rate or in respect of Fixed Rate Advances and of facility fees
shall be made by the Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Agent of an interest rate and of facility fees
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
20
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.13, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and hold it
harmless against the full amount of Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
21
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Agent and the Borrower with two
original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in Section 2.14(e) (other than if
such failure is due to a change in law occurring subsequent to the date on which
a form originally was required to be provided, or if such form otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.17. Extension of Termination Date. (a) At least 30 days but not
more than 45 days prior to the Termination Date, the Borrower, by written notice
to the Agent, may request an extension of the Termination Date in effect at such
time by 364 days from its then scheduled expiration; provided, however, that the
22
Borrower shall not have made the Term Loan Election for Revolving Credit
Advances outstanding on such Termination Date prior to such time. The Agent
shall promptly notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not earlier than 30 days but not later than 20
days prior to the Termination Date, notify the Borrower and the Agent in writing
as to whether such Lender will consent to such extension, such notice to be in
substantially the form of Exhibit E hereto. If any Lender shall fail to notify
the Agent and the Borrower in writing of its consent to any such request for
extension of the Termination Date at least 20 days prior to the Termination
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Agent shall notify the Borrower in writing not later than 15
days prior to the Termination Date of the decision of the Lenders regarding the
Borrower' request for an extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in accordance
with subsection (a) of this Section 2.17, the Termination Date in effect at such
time shall, effective as at the Termination Date (the "Extension Date"), be
extended for 364 days; provided that on each Extension Date, the applicable
conditions set forth in Article III shall be satisfied. If less than all of the
Lenders consent in writing to any such request in accordance with subsection (a)
of this Section 2.17, the Termination Date in effect at such time shall, subject
to Section 2.17(d) and effective as at the applicable Extension Date, be
extended as to those Lenders that so consented (each a "Consenting Lender") but
shall not be extended as to any other Lender (each a "Non-Consenting Lender").
To the extent that the Termination Date is not extended as to any Lender
pursuant to this Section 2.17 and the Commitment of such Lender is not assumed
in accordance with subsection (c) of this Section 2.17 on or prior to the
applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without any
further notice or other action by the Borrower, such Lender or any other Person;
provided that such Non-Consenting Lender's rights under Sections 2.11, 2.14 and
8.04, and its obligations under Section 7.05, shall survive the Termination Date
for such Lender as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to agree to any
request made by the Borrower for any requested extension of the Termination
Date.
(c) If fewer than all of the Lenders consent to any such request pursuant
to subsection (a) of this Section 2.17, the Agent shall promptly so notify the
Consenting Lenders, and each Consenting Lender may, in its sole discretion, give
written notice to the Agent not later than 10 days prior to the Termination Date
of the amount of the Non-Consenting Lenders' Commitments for which it is willing
to accept an assignment. If the Consenting Lenders notify the Agent that they
are willing to accept assignments of Commitments in an aggregate amount that
exceeds the amount of the Commitments of the Non-Consenting Lenders, such
Commitments shall be allocated among the Consenting Lenders willing to accept
such assignments in such amounts as are agreed between the Borrower and the
Agent. If after giving effect to the assignments of Commitments described above
there remains any Commitments of Non-Consenting Lenders, the Borrower may
arrange for one or more Consenting Lenders or other Eligible Assignees that
agrees to an extension of the Termination Date (an "Assuming Lender") to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the obligations of such Non-Consenting Lender under this Agreement
thereafter arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be
less than $10,000,000 unless the amount of the Commitment of such Non-Consenting
Lender is less than $10,000,000, in which case such Assuming Lender shall assume
all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non-Consenting Lender plus (B) any
accrued but unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid by the Assuming Lender;
23
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an assumption
agreement in substantially the form of Exhibit D (each an "Assumption
Agreement") or an Assignment and Acceptance, as appropriate, duly executed by
such Assuming Lender, such Non-Consenting Lender, the Borrower and the Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of
its Commitment and (C) each Non-Consenting Lender being replaced pursuant to
this Section 2.17 shall have delivered to the Agent any Note or Notes held by
such Non-Consenting Lender. Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the Extension
Date, will be substituted for such Non-Consenting Lender under this Agreement
and shall be a Lender for all purposes of this Agreement, without any further
acknowledgment by or the consent of the other Lenders, and the obligations of
each such Non-Consenting Lender hereunder shall, by the provisions hereof, be
released and discharged.
(d) If the Lenders having more than 50% of the Commitments (after giving
effect to any assignments pursuant to subsection (c) of this Section 2.17)
consent in writing to a requested extension (whether by execution or delivery of
an Assumption Agreement, an Assignment and Acceptance or otherwise) not later
than one Business Day prior to such Extension Date, the Agent shall so notify
the Borrower, and, upon satisfaction of the applicable conditions set forth in
Article III, the Termination Date then in effect shall be extended for the
additional 364-day period as described in subsection (a) of this Section 2.17,
and all references in this Agreement, and in the Notes, if any, to the
"Termination Date" shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
SECTION 2.18. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender (with a copy of
such notice to the Agent) to the effect that a Note is required or appropriate
in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Advances owing to, or to be made by, such Lender,
the Borrower shall promptly execute and deliver to such Lender a Note payable to
the order of such Lender in a principal amount up to the Commitment of such
Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from the Borrower hereunder and each
Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
24
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) As of the Effective Date, except as disclosed in the Borrower's
Quarterly Report on Form 10-Q for the quarter ending March 31, 2003, since
December 31, 2002 there shall have occurred no Material Adverse Change.
(b) As of the Effective Date, there shall exist no action, suit,
investigation, litigation or proceeding affecting the Borrower or any of
its Consolidated Subsidiaries pending or, to its knowledge, threatened
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect other than the matters
disclosed by the Borrower in filings with the United States Securities and
Exchange Commission prior to the date hereof or described on Schedule
3.01(b) hereto (collectively, the "Disclosed Litigation") or (ii) purports
and is reasonably likely to affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(c) As of the Effective Date, the Borrower shall not have been
notified that anything has come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that
the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(e) The Borrower shall have notified the Agent as to the proposed
Effective Date.
(f) The Borrower shall have paid all accrued fees and invoiced
expenses of the Agent and the Lenders (including the accrued fees and
invoiced expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Borrower, dated the Effective
Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(i) The Revolving Credit Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.18.
25
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Revolving
Credit Notes to be delivered by it, and of all documents evidencing
other necessary corporate action and governmental approvals, if any,
with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and such Notes to be
delivered by it and the other documents to be delivered by it
hereunder.
(iv) A favorable opinion of the General Counsel or Associate
General Counsel of the Borrower, in form and substance satisfactory to
the Agent.
(v) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, in form and substance satisfactory to the Agent.
(i) The Borrower shall have terminated the commitments, and paid in
full all Debt, interest, fees and other amounts outstanding, under the
364-Day Credit Agreement dated as of July 17, 2002 among the Borrower, the
lenders and agents parties thereto and Citibank, as administrative agent,
and each of the Lenders that is a party to each such credit agreement
hereby waives, upon execution of this Agreement the requirement of prior
notice under each such credit agreement relating to the termination of
commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing and
Extension Date. The obligation of each Lender to make a Revolving Credit Advance
on the occasion of each Revolving Credit Borrowing and each extension of
Commitments pursuant to Section 2.17 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Revolving Credit Borrowing or the applicable Extension Date the following
statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing, request for Commitment Extension and the acceptance
by the Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Revolving Credit Borrowing or such Extension Date such statements are
true):
(a) the representations and warranties contained in Section 4.01
(except in the case of each Revolving Credit Borrowing, the representations
set forth in subsection (e) thereof and in subsection (f)(i) thereof) are
correct on and as of the date of such Revolving Credit Borrowing or such
Extension Date, before and after giving effect to such Revolving Credit
Borrowing or such Extension Date and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Revolving Credit Borrowing or such Extension Date or from the application
of the proceeds therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The
obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Competitive
Bid Borrowing such statements are true):
26
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct on and as of the
date of such Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrower of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by
it when delivered hereunder will have been, duly executed and delivered by
the Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2002, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at March 31, 2003, and the
related Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer, Treasurer, Assistant Treasurer, Controller or
Assistant Controller of the Borrower, copies of which have been furnished
to each Lender, fairly present, subject, in the case of said balance sheet
as at March 31, 2003, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Borrower and its Subsidiaries as at such dates
and the Consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. Except as
disclosed in the Borrower's Quarterly Report on Form 10-Q for the quarter
ending March 31, 2003, since December 31, 2002, there has been no Material
Adverse Change.
27
(f) There is no pending or, to the knowledge of the Borrower,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Borrower or any of its Consolidated Subsidiaries before any court,
governmental agency or arbitrator that (i) is reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation), and there
has been no material adverse change in the status, or financial effect on
the Borrower or any of its Consolidated Subsidiaries, of the Disclosed
Litigation or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or the consummation of the
transactions contemplated hereby.
(g) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. SECTION 4.02. Representation
and Warranty of the Lenders. Each Lender represents and warrants that in
good faith it has not and will not rely upon any margin stock (as such term
is defined in Regulation U of the Board of Governors of the Federal Reserve
System) as collateral in the making and maintaining of its Advances
hereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Material
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except such
non-compliance as would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Material Subsidiaries to pay and discharge, before the date on which
penalties are attached thereto, all taxes, assessments and governmental
charges or levies imposed upon it or upon its property; provided, however,
that neither the Borrower nor any of its Material Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings or are not of
material importance to the business, financial condition or results of
operations of the Borrower and its Consolidated Subsidiaries.
(c) Maintenance of Insurance. Maintain, and cause each of its Material
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is consistent with prudent business practice. This section shall not
prevent the use of deductible or excess loss insurance and shall not
prevent the Borrower or a Consolidated Subsidiary from acting as a
self-insurer or maintaining insurance with a Subsidiary or Subsidiaries so
long as such action is consistent with sound business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower may consummate any merger or
consolidation permitted under Section 5.02(b) and provided further that the
Borrower shall not be required to preserve any right or franchise if the
Borrower shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower.
(e) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets
and business of the Borrower and each such Material Subsidiary in
accordance with generally accepted accounting principles in effect from
time to time.
28
(f) Reporting Requirements. Furnish to the Agent, and in sufficient
copies for the Lenders (provided, however, that, in the case of the
Consolidated balance sheet and Consolidated statements of income and cash
flows referred to in clause (i) below, the annual audit report and
accompanying information referred to in clause (ii) below and the reports
and registration statements referred to in clause (iv) below, such
information will be deemed to have been furnished to the Agent if it is
readily available through ▇▇▇▇▇):
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the Chief Financial Officer, Treasurer,
Assistant Treasurer, Controller, Assistant Controller, or other
authorized financial officer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and
certificates of the Chief Financial Officer Treasurer, Assistant
Treasurer, Controller or Assistant Controller of the Borrower as to
compliance with the terms of this Agreement;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Required Lenders by Deloitte & Touche LLP or
other independent public accountants acceptable to the Required
Lenders;
(iii) as soon as possible and in any event within five days after
the determination by the Borrower of the occurrence of a Default that
is continuing on the date of such statement, a statement of the Chief
Financial Officer, Treasurer, Assistant Treasurer, Controller,
Assistant Controller, or other authorized financial officer of the
Borrower setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
material reports that the Borrower sends to its securityholders (or
any class of them) or its creditors (or any class of them), and copies
of all reports and registration statements that the Borrower or any
Subsidiary files with the Securities and Exchange Commission;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information (excluding trade secrets) respecting
the Borrower or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, no Borrower will:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Material Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its Material Subsidiaries to assign, any right
to receive income, other than:
(i) (A) Liens for taxes, assessments, governmental charges or
levies or other amounts owed to governmental entities other than for
borrowed money; (B) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other
29
similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days or
that are being contested in good faith; (C) pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; (D)
easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property
for its present purposes; and (E) Liens in favor of a landlord arising
in the ordinary course of business,
(ii) purchase money Liens upon or in any property, assets or
stock acquired or held by the Borrower or any Material Subsidiary in
the ordinary course of business to secure the purchase price or
construction cost of such property or to secure Debt incurred solely
for the purpose of financing the acquisition or construction of such
property whether incurred prior or subsequent to such acquisition or
construction, or Liens existing on such property at the time of its
acquisition (other than any such Lien created in contemplation of such
acquisition) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any property other than the
property being acquired, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced,
(iii) Liens existing on the Effective Date,
(iv) (A) assignments of the right to receive income in connection
with any Permitted Receivables Financing and (B) other Liens that
would otherwise be prohibited; provided that the Aggregate Amount of
Financing Outstanding in connection with Permitted Receivables
Financings described in clause (A), plus the aggregate principal
amount of Debt secured by Liens described in clause (B) at any time
outstanding, shall not exceed 10% of the Consolidated Net Worth of the
Borrower at such time,
(v) the replacement, extension or renewal of any Lien permitted
by clauses (ii) and (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the amount secured thereby, and
(vi) intercompany Liens.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any of its Material
Subsidiaries to do so, except that (x) any Material Subsidiary of the
Borrower may merge or consolidate with or into, or dispose of assets to,
any other Material Subsidiary of the Borrower or any other Subsidiary of
the Borrower that shall become a Material Subsidiary as a result of such
transaction and (y) any Material Subsidiary of the Borrower may merge into
or dispose of assets to the Borrower, provided, in each case, that no
Default shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
taken as a whole as carried on at the date hereof.
SECTION 5.03. Financial Covenant. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall
maintain at the end of each fiscal quarter of the Borrower a Leverage Ratio of
not more than 0.45:1.00.
30
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or the Borrower shall fail to pay any
interest on any Advance or make any other payment of fees or other amounts
payable under this Agreement or any Note within five Business Days after
the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (f)(iii), 5.02(a),
5.02(b) or 5.03, or (ii) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(f)(i) or (ii) if such
failure shall remain unremedied for 5 days after written notice thereof
shall have been given to the Borrower by the Agent or any Lender, or (iii)
the Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement on its part to be performed or
observed if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Agent or any
Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least $50,000,000 in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such Material
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Borrower or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$75,000,000 in the aggregate shall be rendered against the Borrower or any
of its Material Subsidiaries and either (i) a lawsuit shall have been
properly commenced by any creditor to enforce such judgment or order or
(ii) such judgment is not, within 30 days after entry thereof, paid,
bonded, discharged or stayed during appeal, or is not discharged within 30
days after the expiration of such stay; provided, however, that the
31
rendering of any such judgment or order shall not be an Event of Default
under this Section 6.01(f) if and for so long as (i) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (ii)
such insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not properly disputed the claim made for payment
of, the amount of such judgment or order; or
(g) Any Person or two or more Persons acting in concert (other than
Pharmacia Corporation and its Subsidiaries and any successor thereto) shall
have, on or after the date of this Agreement, acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), directly or indirectly, of
Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 25% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing on or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of
the Borrower (together with any new directors who (A) were properly and
duly elected to the board of directors pursuant to the Borrower's bylaws by
the affirmative vote of a majority of the remaining directors then in
office or (B) were nominated by a majority of the remaining members of the
board of directors of the Borrower and thereafter elected as directors by
the shareholders of the Borrower) shall cease for any reason to constitute
a majority of the board of directors of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Lenders, shall be reasonably likely
to incur liability in excess of $75,000,000 in the aggregate as a result of
one or more of the following: (i) the occurrence of any ERISA Event,
provided that the occurrence of the ERISA Event described in PBGC
Regulation Sections 4040.23, 4043.29 or 4043.32 shall constitute an Event
of Default under this Section 6.01(h) only if it is reasonably expected to
result in a Material Adverse Effect, (ii) the partial or complete
withdrawal of the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
32
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.17 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment, the
Advances made by it and any Note issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank were not the Agent and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Revolving Credit Advances then owed to each of them (or
if no Revolving Credit Advances are at the time outstanding, ratably according
to the respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
33
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby acknowledges that neither
the documentation agent nor any other Lender designated as any "Agent" on the
signature pages hereof has any liability hereunder other than in its capacity as
a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Revolving Credit Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Advances or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving Credit
Advances, or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder or (f) amend this Section 8.01;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note; and provided further that this Section 8.01 shall not apply to changes in
Commitments pursuant to Section 2.11, Section 2.12, Section 2.17 or any other
Section of this Agreement.
SECTION 8.02. Notices, Etc.. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Chief Financial Officer, with an information copy to the
Secretary at the same address, if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Bank Loan Syndications Department; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall be effective upon receipt. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
34
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all reasonable costs and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the actual or proposed use of the proceeds
of the Advances by the Borrower or any of its Subsidiaries or (ii) the actual or
alleged presence of Hazardous Materials on any property of the Borrower or any
of its Subsidiaries or any Environmental Action relating in any way to the
Borrower or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower also agrees not to assert any claim against
the Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance or LIBO Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Advances pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Nothing herein shall derogate any Lender's
right, if any, if and to the extent payment owed to such Lender is not made when
due hereunder or under any Note held by such Lender, to set off from time to
time against any or all of the Borrower's deposit (general or special, time or
demand, provisional or final) accounts with such Lender any amount so due. Each
Lender agrees promptly to notify the Borrower after any such set off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set off and application. The rights of
each Lender under this Section 8.05 are in addition to other rights and remedies
which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Sections 2.01 and 2.03, which shall only become effective upon satisfaction
of the conditions precedent set forth in Section 3.01) when it shall have been
35
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and, if
demanded by the Borrower (following a demand by such Lender pursuant to Section
2.11 or Section 2.12 if no Event of Default has occurred and is continuing) upon
at least 5 Business Days' notice to such Lender and the Agent or if required
pursuant to Section 2.17, will assign to one or more Persons all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances owing to it
and any Revolving Credit Note or Notes held by it, and any Competitive Bid
Advances or Competitive Bid Notes held by it required to be assigned pursuant to
Section 2.11 or Section 2.12) with the consent of the Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower (which consent
shall not unreasonably be withheld); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than any Competitive Bid Advances
owing to it and any Competitive Bid Notes held by it, except any such
Competitive Bid Advances or Competitive Bid Notes required to be assigned
pursuant to Section 2.11 or Section 2.12), (ii) except in the case of an
assignment to an Affiliate of such Lender or a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrower pursuant
to this Section 8.07(a) shall be arranged by the Borrower after consultation
with the Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement, (vi) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500, and (vii) any Lender may, without the approval of the
Borrower and the Agent, assign all or a portion of its rights to any of its
Affiliates or to a Person that, immediately prior to such assignment, was a
Lender. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.11, 2.14 and 8.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assumption Agreement and each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note or the Guaranty, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
Upon the sale of a participation pursuant to this Section 8.07(e), such Lender
shall promptly provide notice to the Borrower of the sale of a participation
(other than a sale of a participation pursuant to Section 2.15); provided,
however, that the failure by such Lender to provide such notice shall not
invalidate the sale of such participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender; provided further that, so long as no Default
has occurred and is continuing, the Borrower shall have consented in advance to
the disclosure of any non-public information, such consent not to be
unreasonably withheld.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
37
(h) Each Lender agrees that it will not assign any right, obligation or
Note, or sell any participation, in any manner or under any circumstances that
would require registration, qualification or filings under the securities laws
of the United States of America, of any state or any country.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to the Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, to the extent
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, provided that the Agent or such Lender,
as the case may be, has notified the Borrower and has otherwise taken reasonable
steps to protect such information from any unnecessary disclosure, and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking, provided that, without prejudice to its right to
disclose to such examiner or regulator, the Agent and the Lenders agree to use
reasonable efforts to limit the amount of Confidential Information which is
disclosed. Notwithstanding anything herein to the contrary, the Borrower and its
officers, directors, employees, agents and advisors and the Lenders and their
officers, directors, employees, agents and advisors may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Borrower or
the Lenders, as the case may be, if any, solely relating to such U.S. tax
treatment and tax structure.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. 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.
38
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the Agent and the
Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MONSANTO COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Citibank, N.A.
39
Initial Lenders
---------------
$60,000,000 CITIBANK, N.A.
By____________________________
Title:
$60,000,000 JPMORGAN CHASE BANK
By____________________________
Title:
$55,000,000 BANK ONE, NA (MAIN OFFICE CHICAGO)
By____________________________
Title:
$55,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By____________________________
Title:
$55,000,000 COMMERZBANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By____________________________
Title:
By____________________________
Title:
$40,000,000 ABN AMRO BANK, N.V.
By____________________________
Title:
$40,000,000 SOCIETE GENERALE
By____________________________
Title:
40
$20,000,000 BARCLAYS BANK PLC
By____________________________
Title:
$20,000,000 CREDIT AGRICOLE INDOSUEZ
By____________________________
Title:
$20,000,000 KBC BANK N.V.
By____________________________
Title:
$20,000,000 MELLON BANK, N.A.
By____________________________
Title:
$20,000,000 THE NORTHERN TRUST COMPANY
By____________________________
Title:
$20,000,000 THE BANK OF NEW YORK
By_____________________________
Title:
$15,000,000 COMMERCE BANK NATIONAL ASSOCIATION
By_____________________________
Title:
$500,000,000 Total of the Commitments
41
SCHEDULE I -
APPLICABLE LENDING OFFICES
------------------------------------------- -------------------------------------- --------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
ABN AMRO BANK, N.V. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
THE BANK OF NEW YORK The Bank of New York The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) Bank One, NA Bank One, NA
One Bank One Plaza One Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60670 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., The Bank of Tokyo - Mitsubishi, The Bank of Tokyo - Mitsubishi,
CHICAGO BRANCH Ltd., Chicago Branch Ltd., Chicago Branch
Harborside Financial Center Harborside Financial Center
500 Plaza 111 ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇ ▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
BARCLAYS BANK PLC Barclays Bank PLC Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇/5307 F: ▇▇▇ ▇▇▇-▇▇▇▇/5307
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
Two Penns Way ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
COMMERCE BANK NATIONAL ASSOCIATION Commerce Bank National Association Commerce Bank National Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
42
------------------------------------------- -------------------------------------- --------------------------------------
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN Commerzbank AG, Grand Cayman Branch Commerzbank AG, Grand Cayman Branch
BRANCHES ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇ Branch
Two World Financial Center Two World Financial Center
New York, NY 10281-1050 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
CREDIT AGRICOLE INDOSUEZ Credit Agricole Indosuez Credit Agricole Indosuez
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
JPMORGAN CHASE BANK JPMorgan Chase Bank JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
KBC BANK N.V. KBC Bank N.V. KBC Bank N.V.
New York Branch New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
T: ▇▇▇-▇▇▇-▇▇▇▇ T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇ F: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
MELLON BANK, ▇.▇. ▇▇▇▇▇▇ Bank ▇.▇. ▇▇▇▇▇▇ Bank N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ 525 ▇▇▇▇▇▇▇ Pen Place, Room 1203
Pittsburgh, PA 15259-0003 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇-▇▇▇▇ Tel: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇ Fax: ▇▇▇ ▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
THE NORTHERN TRUST COMPANY The Northern Trust Company The Northern Trust Company
50 ▇. ▇▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Ms. ▇▇▇▇▇ Honda Attn: Ms. ▇▇▇▇▇ Honda
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
------------------------------------------- -------------------------------------- --------------------------------------
SOCIETE GENERALE Societe Generale Societe Generale
▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------- -------------------------------------- --------------------------------------
43
SCHEDULE 3.01(b)
DISCLOSED LITIGATION - UPDATES
In its periodic reports to the Securities and Exchange Commission, Monsanto
Company ("Monsanto") has reported on litigation involving Aventis CropScience
S.A. (formerly Rhone Poulenc Agrochimie S.A., now Bayer CropScience AG)
("Bayer"), Monsanto, and DEKALB Genetics Corporation ("DEKALB Genetics"),
concerning an allegation of fraud. On June 27, 2003, the U.S. Supreme Court
denied Monsanto's petition for certiorari. Because of this denial, the prior
decision of the U. S. Court of Appeals for the Federal Circuit, denying
Monsanto's status as a bona fide licensee, will remain in effect.
In its periodic reports to the Securities and Exchange Commission, Monsanto has
reported on litigation involving Syngenta Biotechnology, Inc. ("SBI"), Monsanto
and Delta and Pine Land Company, concerning a patent which allegedly relates to
certain agro-transformed cotton technology products. SBI seeks injunctive relief
and monetary damages. On May 22, 2003, the Court denied Monsanto's motion to
dismiss the suit on the basis that the patent owner, Washington University, was
not a party.
In its periodic reports to the Securities and Exchange Commission, Monsanto has
reported on litigation involving U.S. veterans alleging injury from exposure to
herbicides used by the U.S. armed services during the Vietnam War. On June 9,
2003, the U.S. Supreme failed to overturn the judgment of the U.S. Court of
Appeals for the Second Circuit with respect to one plaintiff, thereby allowing
this plaintiff's claim to proceed in the U.S. District Court notwithstanding a
1984 class action settlement. With respect to a second plaintiff, the Court
vacated the judgment of the Court of Appeals and remanded the case to consider a
procedural issue.
In its periodic reports to the Securities and Exchange Commission, Monsanto has
reported on litigation in Korea, involving Korean veterans of the Vietnam war,
alleging that they were exposed to herbicides and suffered injuries as a result.
On May 23, 2003, the Supreme Court of South Korea reversed a decision of the
Seoul High Court (which had denied procedural relief sought by petitioners in
connection with their pursuit of their appeal), and remanded the case to the
Seoul High Court for further consideration of petitioners' request for
procedural relief.
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, Monsanto Company, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Lender") for the account of its Applicable Lending
Office on the later of the Termination Date and the date designated pursuant to
Section 2.06 of the Credit Agreement (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate principal amount of the Revolving Credit
Advances made by the Lender to the Borrower pursuant to the 364-Day Credit
Agreement dated as of July 2, 2003 among the Borrower, the Lender and certain
other lenders parties thereto, Citibank, N.A., as Agent for the Lender and such
other lenders, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as
joint lead arrangers and co-bookrunners, JPMorgan Chase Bank, as syndication
agent, and Commerzbank AG, New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents (as amended
or modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined), outstanding on such date.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Revolving Credit Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
--------------------------- ------------------------ ------------------------ ------------------------- ------------------------
2
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, MONSANTO COMPANY, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the 364-Day Credit Agreement dated as of July 2,
2003 among the Borrower, the Lender and certain other lenders parties thereto,
Citibank, N.A., as Agent for the Lender and such other lenders, Citigroup Global
Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint lead arrangers and
co-bookrunners, JPMorgan Chase Bank, as syndication agent, and Commerzbank AG,
New York and Grand Cayman Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank
One, NA, as co-documentation agents (as amended or modified from time to time,
the "Credit Agreement"; the terms defined therein being used herein as therein
defined)), on _______________, 200_, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Lender at
the office of Citibank, N.A., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ in
same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
EXHIBIT B-1 - FORM OF
NOTICE OF REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: Bank Loans Syndications Department
Ladies and Gentlemen:
The undersigned, Monsanto Company, refers to the 364-Day Credit Agreement,
dated as of July 2, 2003 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank, N.A., as Agent
for said Lenders, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as joint lead arrangers and co-bookrunners, JPMorgan Chase Bank, as syndication
agent, and Commerzbank AG, New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Revolving Credit Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing
is $_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit Borrowing is __________
month[s].]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof) are
correct, before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing Revolving Credit or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Monsanto Company, refers to the 364-Day Credit Agreement,
dated as of July 2, 2003 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank, N.A., as Agent
for the Lender and such other lenders, Citigroup Global Markets Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc., as joint lead arrangers and co-bookrunners, JPMorgan
Chase Bank, as syndication agent, and Commerzbank AG, New York and Grand Cayman
Branches, The Bank of Tokyo-Mitsubishi, Ltd. and Bank One, NA, as
co-documentation agents, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Competitive Bid
Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f)(i) thereof) are
correct, before and after giving effect to the Proposed Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the undersigned that has been provided to
the Agent and each Lender by the undersigned in connection with the Credit
Agreement would include an untrue statement of a material fact or omit to
state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid Borrowing and
all other Borrowings to be made on the same day under the Credit Agreement
is within the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.03(a)(v) of the
Credit Agreement.
Very truly yours,
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
2
EXHIBIT C - FORM OF ASSIGNMENT
AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of July 2, 2003
(as amended or modified from time to time, the "Credit Agreement") among
Monsanto Company, a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement), Citibank, N.A., as agent for the Lenders (the
"Agent), Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint
lead arrangers and co-bookrunners, JPMorgan Chase Bank, as syndication agent,
and Commerzbank AG, New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents. Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the
Credit Agreement as of the date hereof (other than in respect of
Competitive Bid Advances and Competitive Bid Notes) equal to the percentage
interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of
Competitive Bid Advances and Competitive Bid Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (iv) attaches
the Revolving Credit Note, if any, held by the Assignor [and requests that
the Agent exchange such Revolving Credit Note for a new Revolving Credit
Note payable to the order of the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement, as
specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.14 of the
Credit Agreement; and (vii) makes the representation and warranty set forth
in Section 4.02 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date")
shall be the date of acceptance hereof by the Agent, unless otherwise
specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Credit Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Revolving Credit Notes for periods prior
to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule 1 to this Assignment and Acceptance
by telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Amount of Commitment assigned: $_______________
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $_______________
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
----------------------------------------
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By
----------------------------------------
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By
------------------------------------------
Title:
[Approved this __________ day
of _______________, 200_
----------------
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
3
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
EXHIBIT D- FORM OF
ASSUMPTION AGREEMENT
Dated:
Monsanto Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Citibank, N.A.,
as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of July 2, 2003
(as amended or modified from time to time, the "Credit Agreement") among
Monsanto Company, a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement), Citibank, N.A., as agent for the Lenders (the
"Agent), Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint
lead arrangers and co-bookrunners, JPMorgan Chase Bank, as syndication agent,
and Commerzbank AG, New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents. Terms
defined in the Credit Agreement are used herein with the same meaning.
The undersigned proposes to become an Assuming Bank pursuant to Section
2.17 of the Credit Agreement and, in that connection, hereby agrees that it
shall become a Lender for purposes of the Credit Agreement on [applicable
Termination Date] and that its Commitment shall as of such date be $______ .
The undersigned (the "Assuming Bank") (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 5.01(f) thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assumption Agreement; (ii) agrees that it will, independently
and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; (v) confirms that it
is an Eligible Assignee; [and] (vi) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof; [and (vii) attaches any U.S.
Internal Revenue Service forms required under Section 2.14] of the Credit
Agreement](1) and [(vii)] [(viii)] makes the representation and warranty set
forth in Section 4.02 of the Credit Agreement.
The effective date for this Assumption Agreement shall be [applicable
Termination Date]. Upon delivery of this Assumption Agreement to the Borrower
and the Agent and acceptance and recording of this Assumption Agreement by the
Agent, as of [date specified above], the Assuming Bank shall be a party to the
Credit Agreement and have the rights and obligations of a Lender thereunder. As
of [date specified above], the Agent shall make all payments under the Credit
Agreement in respect of the interest assumed hereby (including, without
limitation, all payments of principal, interest and facility fees) to the
Assuming Bank.
------------------
(1) If the Assuming Bank is organized under the laws of a jurisdiction outside
the United States.
This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Assumption Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING BANK]
By
------------------------------------------
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office:
[Address]:
Above Acknowledged and Agreed to:
MONSANTO COMPANY
By____________________________
Title:
By____________________________
Title:
2
Accepted this _____ day of
____________, ______________
CITIBANK, N.A.,
as Agent
By _______________________________
Name:
Title:
3
EXHIBIT E- FORM OF NOTICE OF
EXTENSION OF TERMINATION DATE
[Date]
Citibank, N.A.,
as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: __________________
Monsanto Company
----------------
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of July 2, 2003
(as amended or modified from time to time, the "Credit Agreement") among
Monsanto Company, a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement), Citibank, N.A., as agent for the Lenders (the
"Agent), Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as joint
lead arrangers and co-bookrunners, JPMorgan Chase Bank, as syndication agent,
and Commerzbank AG, New York and Grand Cayman Branches, The Bank of
Tokyo-Mitsubishi, Ltd. and Bank One, NA, as co-documentation agents. Terms
defined in the Credit Agreement are used herein with the same meaning.
Pursuant to Section 2.17 of the Credit Agreement, the Lender named below
hereby notifies the Agent as follows:
[The Lender named below desires to extend the Termination Date with
respect to [all] [$______] of its Commitment for a period of 364
days.]
[The Lender named below desires to extend the Termination Date with
respect to all of its Commitment for a period of 364 days and offers
to increase its Commitment commencing [______________] to
$__________.]
[The Lender named below does NOT desire to extend the Termination Date
with respect to any of its Commitment for a period of 364 days.]
This notice is subject in all respects to the terms of the Credit
Agreement, is irrevocable and shall be effective only if received by the Agent
no later than [______________].(1)
Very truly yours,
[NAME OF LENDER]
By: __________________________________
Name:
Title:
-----------
(1) This date shall be no later than 20 days prior to the then scheduled
Termination Date in the case of an Extending Lender's notice to extend its
Commitment and no later than 15 days prior to the then scheduled
Termination Date in the case of an Extending Lender's offer to increase its
Commitment.
2